(p.264) Appendix Making of the Article 21, Article 22, Schedule vii, List i, Entry 9 and Schedule vii, List iii, Entry 3 of the Constitution of India*
A. Making of the Constitution
As a preliminary to the drafting of the Constitution, the Constituent Assembly appointed a number of committees to consider and report on various important matters for which provision had to be made in the Constitution. The committees so appointed were the Advisory Committee on Fundamental Rights, Minorities etc., the Union Powers Committee, and the Union and the Provincial Constitution Committees. These committees submitted their reports during the period April to August 1947. By August 1947, the broad principles as set out in the recommendations of these committees had been discussed in the Assembly.
In pursuance of a recommendation of the Order of Business Committee which was subsequently adopted by the Constituent Assembly on 14 July 1947, the Constitutional Adviser, B.N. Rau, undertook the preparation of a draft of the Constitution embodying the various decisions of the Assembly on the reports of its committees. In this task he was assisted by S.N. Mukerjee, Joint Secretary and Draftsman. Where the Constituent Assembly had not considered any matter, the recommendations of the relevant committees were incorporated; and in other cases appropriate provisions were included in the (p.265) draft. This draft, containing 240 clauses and 13 schedules, was ready by October 1947. Almost every clause had a marginal note giving the references to the corresponding provisions in other constitutions or in the Government of India Act of 1935. The draft was placed before the Drafting Committee when it met on 27 October. In all subsequent deliberations of the committee this draft constituted the basic document and its working paper.
After a detailed scrutiny of the Constitutional Adviser’s draft of the Constitution and other material—notes, reports and memoranda — placed before it, the Drafting Committee submitted to the President of the Constituent Assembly a revised Draft Constitution on 21 February 1948. The draft contained 315 articles and 8 schedules.
The Draft Constitution, as settled by the Drafting Committee, was widely circulated. Copies were sent to all members of the Assembly, to the Provincial Governments and Legislatures, to the Ministries of the Government of India, and made available to the general public. A large number of comments and suggestions were received and the Drafting Committee found it necessary to meet in March 1948, to consider these suggestions. At this stage a Special Committee was formed to consider certain provisions which departed from the decisions taken earlier by the Assembly. The Special Committee met for this purpose on 10 and 11 April 1948.
The Drafting Committee met again in October 1948, to review the whole position in the light of the views expressed by the Special Committee, and the comments and suggestions received subsequent to its meeting in April. A fresh report to the Presided of the Assembly was made by the Chairman of the Drafting Committee, B.R. Ambedkar, in the light of suggestions and recommendations from the Committee, Ministries and from various individuals and various groups of public. This report reproduced in parallel columns the text of the Draft Constitution as published in February 1948, and the amendments which the Drafting Committee proposed to sponsor for the consideration of the Assembly.
The Draft Constitution was introduced in the Assembly on 4 November 1948. Discussions on it took place for over a year and the Constitution was finally adopted on 26 November 1949. These discussions took place in several stages. There was first a general discussion mainly on the principles of the Constitution, which took five days. The clause-by-clause (p.266) consideration of the Constitution started on 14 November 1948, and concluded on 17 October 1949.
The Assembly then adjourned for about four weeks during which period the Constitution, together with the amendments adopted by the Assembly, was again remitted to the Drafting Committee with instructions to carry out such renumbering of the articles, clauses and sub-clauses with the necessary changes in punctuation and such revision and completion of the marginal notes as might be necessary; and on the completion of the task, the Drafting Committee was to recommend such formal or consequential or necessary amendments to the Constitution as might be required. In other words, the Drafting Committee at this stage had the onerous task of incorporating all the amendments adopted by the Assembly and giving final shape to the Constitution.
The revised Draft was considered by the Assembly again on 14, 15 and 16 November 1949. The Assembly then proceeded to the third reading of the Constitution. Dr.Ambedkar moved that the Constitution as settled by the Assembly be passed. Discussions on this motion occupied nine days and the Constitution was finally adopted on 26 November 1949.1
B. Making of Article 21
Draft Report of the Sub-Committee on Fundamental Rights, April 3, 19472
11. No person shall be deprived of his life, liberty or property without due process of law.
29. No person shall be subjected to prolonged detention preceding trial, to excessive bail, or unreasonable refusal thereof or to inhuman and cruel punishment.
Final Report of the Sub-Committee on Fundamental Rights, April 16, 19473
12. No person shall be deprived of his life, liberty or property without due process of law nor shall any person be denied the equal treatment of laws within the territories of the Union:
Provided that nothing herein contained shall prevent the Union Legis lature from legislating in respect of foreigners. (p.267) 28. No person shall be subjected to prolonged detention pending trial, to excessive bail, or unreasonable refusal thereof, or to inhuman or cruel punishment.
Interim Report of the Advisory Committee on the Subject of Fundamental Rights, April 23, 19474
9. No person shall be deprived of his life, or liberty, without due process of law nor shall any person be denied the equal treatment of laws within the territories of the Union:
Provided that nothing herein contained shall detract from the powers of the Union Legislature in respect of foreigners.
Clause 28 was deleted without discussion when the Report of the Sub-Committee came up for consideration before the Advisory Committee. This because, presumably, the Committee felt that the expression “due process of law” in clause 12 was wide enough to cover within its scope contents of clause 28.5
Constituent Assembly Debates
The provision was taken up for consideration in the Assembly on 30 April 1947. The only amendment moved and adopted was that for the words ‘the equal treatment of the laws’ the words ‘equality before the law’ be substituted.6
Draft Constitution Prepared by the Constitutional Adviser, October, 19477
16. No person shall be deprived of his life or personal liberty without due process of law, nor shall any person be denied equality before the law within the territories of the Federation.
In his note on the clause, the Constitutional Advisor said that the word “liberty” might be construed very widely unless qualified. For example, even price-control might be regarded as interference with liberty of contract between buyer and seller. Hence the word “personal” has to be inserted.8
The Draft Constitution Prepared by the Drafting Committee, February 21, 19489
**15. 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 (p.268) the law or the equal protection of the law within the territory of India.
** The committee is of opinion that the word “liberty” should be qualified by the insertion of the word “personal” before it, for otherwise it might be construed very widely so as to include even the freedoms already dealt with in article 13 (now Art.19).
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. XXXI 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”.
The committee is also of opinion that the words “or the equal protection of the laws” should be inserted after the words “equality before the law” as in section 1 of Article XIV of the U.S.A. Constitution (1865).
The Constitutional Adviser, B.N. Rau, visited U.S.A. and other countries for personal discussion with some of the leading personalities and constitutional experts on important features of India’s Draft Constitution from 26 October to 2 December 1947. B.N. Rau had discussions with Justice Frankfurter of the United States Supreme Court who was of the opinion that the power of review implied in the “due process” was not only undemocratic (because it gave a few judges the power of vetoing legislation enacted by the reprentatives of the nation) but also was an unfair burden on the judiciary. This view was communicated by B.N. Rau to the Drafting Committee. This prompted the Drafting Committee to introduce a far-reaching change in the clause by replacing the expression “without due process of law” by the expression “except according to procedure established by law”.10
Constituent Assembly Debates 6th December, 194811
Mr. Vice—President: Now the motion before the House is that article 15 (now Art. 21) form part of the Constitution.
Kazi Syed Karimuddin: 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 personal liberty except according to procedure established by law….
then in my opinion, it will open a sad chapter in the history of constitutional law. Sir, the Advisory Committee on Fundamental Rights appointed by the Constituent Assembly had suggested that no person (p.269) shall be deprived of his life or liberty without due process of law; and I really do not understand how the words “personal” and “according to procedure established by law” have been brought into article 15 by the Drafting Committee.
Continuing my arguments Sir, if the words “according to procedure established by law” are enacted, there will be very great injustice to the law courts in the country, because as soon as a procedure according to law is complied with by a court, there will be an end to the duties of the court and if the court is satisfied that the procedure has been complied with, then the judges cannot interfere with any law which might have been capricious, unjust or iniquitous. The clause, as it stands, can do great mischief in a country which is the storm centre of political parties and where discipline is unknown. Sir, let us guarantee to individuals inalienable rights in such a way that the political parties that come into power cannot extend their jurisdiction in curtailing and invading the Fundamental rights laid down in this Constitution.
Sir, there is an instance in the American Constitutional law in a case reported, Chambers vs. Florida where an act was challenged in a court of law on the ground that the law was not sound and that it was capricious and unjust. Therefore, my submission is that if the words “according to procedure established by law” are kept then it will not be open to the courts to look into the injustice of a law or into a capricious provision in a law. As soon as the procedure is complied with, there will be an end to everything and the judges will be only spectators. Therefore, my submission is, first, that the words, “except according to procedure established by law” be deleted, and then that the words “without due process of law” be inserted.
Mahboob Ali Baig Sahib Bahadur: Sir, I beg to move:
“That in article 15 for the words “except according to procedure established by law” the words, “save in accordance with law” be substituted.”
In the note given by the Drafting Committee, it is stated that they made two changes from the proposition or article 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 that unless this word ‘personal’ finds a place there, the clause may be construed very (p.270) widely so as to include even the freedoms already dealt with in article 13 (now Art. 19).
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 “except according to procedure established by law” are inserted, the reason is stated to be that the expression is more definite and such a provision finds place in article 31 of the Japanese Constitution of 1946. I will try to confine myself to the second change.
It is no doubt true that in the Japanese Constitution article 31 reads like this but if the other articles that find 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 Constitution has conveniently omitted those provisions.
Article 32 of the Japanese Constitution provides that “no person shall be denied the right of access to the court.” According to the present expression it may be argued that 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 Constitution article 32 clearly says that “no person shall be denied the right of access to the court”. Is there such a corresponding provision 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 at once informed of the charges against him or without the immediate privilege of counsel, nor shall be detained without adequate cause and upon demand of any such person such cause should be immediately shown in open court in his presence and in the presence of his counsel.” Such a clear right has not been given in these draft provisions.
Further, Article 35 provides that the right of all persons to be secured in their homes and against entry, searches, etc. shall not be impaired, except upon warrant issued only for probable cause and so on. If for the sake of clarity and definiteness you have imported into this Draft Constitution article 31 of the Japanese Constitution you should in fairness have incorporated the other articles of the Japanese Constitution, which are relevant and which were enacted for safeguarding the personal liberty of the honest citizen. May I ask the Drafting Committee through its Chairman whether it is clear from this constitution that a man who (p.271) has been arrested and detained has got the right to resort to a court and prove his innocence? It may be said that the expression “except according to procedure established by law” covers the point but the expression means “procedure established by law” of the legislature and it will be competent for the legislature to lay down a provision that in the matter of detention of persons whether for political or other reasons, the jurisdiction of the courts is ousted. We know the decisions of the High Courts of India, especially of Madras and someother High Courts, where it has been laid down by these courts that it is open to the legislature to say that the courts shall not interfere with the action taken by the Government in the case of certain citizens whom they consider to be committing an offence or about to commit an offence or are likely to commit an offence. It is not open to the court to go into the merits or demerits of the grounds on which a person has been detained. The only extent to which the courts can go is to find out whether there is bona fides or mala fides for the action of the Government, and the burden is laid upon the person to prove that there is mala fides on the part of the Government in having issued a warrant of detention or arrest. Therefore the words “except according to procedure laid down by law” would mean, and according to me it does mean, that the future legislature might pass a law by which the right of a citizen to be tried by a court to establish his innocence could be taken away. I do not by this mean to convey that under certain circumstances it may not be necessary for Government to prevent a person from committing an offence and to take the precaution of arresting him and thus prevent him from committing an offence. But I submit that there must be the right of the citizen to go to a court to prove that the ground on which he has been arrested is wrong and he is innocent. That is the elementary right of the citizen as against the executive which might be clothed with power by a party legislature which might pass a law saying that the executive is empowered to take away the liberty of a person under certain circumstances and he will have no right to go to court and prove his innocence. If the framers of the Draft Constitution are able to tell us that these words “except according to procedure established by law” do not deprive a person of his right to go before the court and establish his innocence and he is not prevented from such a course, then it will be another matter. But we must understand that the words “without due process of law” have been held in England and other countries to convey the meaning that every citizen has got the right, when an (p.272) action has been taken against him depriving him of his personal liberty, 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 this fundamental and elementary right. All laws that may be made are subject to the relevant principle that no man shall be convicted and no man shall be deprived of his liberty without 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 footnote [sic]12 is that this is more definite and that it finds a place in the Japanese Constitution. As I have already stated, let us not 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 the Japanese 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 liberty without his being given the chance to go to court and all assistance given to him. I therefore object to the words “except according to procedure established by law”. If by any other method which may be said to be definite provision they can ensure that the citizen cannot be condemned without being heard by a court, I shall be satisfied. That is my reason for moving this amendment.
Pandit Thakur Dass Bhargava: …the substitution of the words “without due process of law” for the words “except according to procedure established by law” is the one which I wish to support.
… What will be the effect of this change (of the words “without due process of law” to “except according to procedure established by law”)? To illustrate this I would refer the House to Act XIV of 1908 called the Black Law under which thousands, if not hundreds of thousands of Congressmen were sent to jail. According to Act XIV of 1908 the Government took to themselves the powers of declaring any organisation illegal by the mere fact that they passed a notification to that effect. This Act, when passed, was condemned by the whole of India. But the Government of the day enacted it in the teeth of full opposition. When the non-co-operation movement began it was civil disobedience of this law with which the (p.273) Congress fought its battle. The Courts could not hold that the notification of the Government was wrong. The courts were not competent to hold that any organisation or association of persons was legal though its objects were legal. The objects of the Congress were peaceful. They wanted to attain self-government but by peaceful and legitimate means. All the same, since the Government had notified, the courts were helpless. This legislation demonstrates the need of the powers of “due process.”
Similarly I will give another illustration, and that is Section 26 of the Defence of India Act. We know that the Federal Court held this Section to be illegal and a new Ordinance had to be issued. Unless and until therefore you invest the court with such power and make this Section [sic]13 15 really justiciable there is no guarantee that we will enjoy the freedoms that the Constitution wants to confer upon us.
The House has already accepted the word “reasonable” in article 13 (now Art. 19). At least 70 per cent of the Acts which can evolve personal liberty have now come under the jurisdiction of the courts, and the courts are competent to pronounce an opinion 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 much more important. So far as the question of life and personal liberty are concerned they must be also under the category of subjects which are within the jurisdiction of the courts.
Therefore it is quite necessary that the House should accept this amendment. There are two ways, as suggested by the previous speakers: either you must put all the sections as in the Japanese Constitution, and we should pass many of the amendments tabled by Messrs. Lari and Karimuddin one of which you were pleased to declare carried in the first instance and which was later declared lost. They seek to introduce into the Constitution principles which the legislature will in future be unable to contravene. All those amendments regarding Fundamental Rights will be carried ipso facto if this one amendment of “due process” is accepted.
……As a matter of fact, if this amendment is carried, it will constitute the bed-rock of our liberties. This will be a Magna Carta along with article 13 (now Art. 19) with the word ‘reasonable’ in it. This is only victory for the judiciary over the autocracy of the legislature. In fact we want two bulwarks for our liberties. One is the Legislature and the other is the judiciary. But even if the legislature is carried away by party spirit and (p.274) is sometimes panicky the judiciary will save us from the tyranny of the legislature and the executive.
In a democracy, the courts are the ultimate refuge of the citizens for the vindication of their rights and liberties. I want the judiciary to be exalted to its right position of palladium of justice and the people to be secure in their rights and liberties under its protecting wings.
Shri Chimanlal Chakkubhai Shah: Mr. Vice-President, Sir, the right conferred by article 15 (now Art. 19) is the most fundamental of the Fundamental Rights in this Chapter, because it is the right which relates to life and personal liberty without which all other rights will be meaningless. Therefore, it is necessary that in defining this right, we must make it clear and explicit as to what it is that we want to confer and not put in restrictions upon the exercise of that right which make it useless or nugatory. I therefore support the amendment which says that the words ‘without due process of law’ should be substituted for the words ‘except in accordance with the procedure established by law’. Sir, the words ‘without due process of law’ have been taken from the American Constitution and they have come to acquire a particular connotation. That connotation is that in reviewing legislation, the court will have the power to see not only that the procedure is followed, namely, that the warrant is in accordance with law or that the signature and the seal are there, but it has also the power to see that the substantive provisions of law are fair and just and not unreasonable or oppressive or capricious or arbitrary. That means that the judiciary is given power to review legislation. In America that kind of power which has been given to the judiciary undoubtedly led to an amount of conservative outlook on the part of the judiciary and to uncertainty in legislation. But our article is 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 and property. 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 of litigation and uncertainty. There has been practically no litigation and no uncertainty as regards the interpretation of the words “due process of law” as applied to ‘life’ and ‘liberty’.
Sir, at times it does happen that the executive requires extraordinary powers to deal with extraordinary situations and they can pass emergency (p.275) laws. The legislature, which is generally controlled by the executive-because it is the majority that forms the executive-gives such 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 of crisis, not be able to appreciate fully the necessities which have required such kind of legislation. But I have no such apprehension. I have no doubt that the judiciary will take into account fully the necessities of a situation which have required the legislature to pass such a law. But it has happened at times that the law is so comprehensive that the individual is deprived of life and liberty without any opportunity of defence. What is the worst that can happen in an article like this if we put in the words ‘without due process of law’? Some man may escape death or jail if the judiciary takes the view that the law is oppressive. Sir, is it not better that nine guilty men may escape than one innocent man suffers? That is the worst that can happen even if the judiciary takes a wrong view.
But, in these days, the executive is naturally anxious to have more and more powers and it gets them. And we have developed a kind of legislation which is called delegated legislation in which the powers are given to subordinate officers to issue warrants and the like. For example, under the Public Safety Measures Acts, if a Commissioner of Police is satisfied that a particular man is acting against the interests 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 of Police does not look into these matters personally as he is expected to do and signs or issues warrants on the reports of subordinate officials. It is better under such circumstances that there is some check upon the exercise of such powers if they are arbitrarily used. I therefore fully support the amendment which seeks to substitute the words “without due process of law”
Shri Krishna Chandra Sharma: … my amendment … sought the substitution of the words “without due process of law” for the words “except according to procedure established by law”. This article guarantees the personal liberty and life of the citizen. In democratic life, liberty is guaranteed through law. Democracy means nothing except that instead of the rule by an individual, whether a king or a despot, or a multitude, we will have the rule of the law. Sir, the term “without due process of law” has a necessary limitation on the powers of the State, both executive (p.276) and legislative. The doctrine implied by “without due process of law” has a long history in Anglo-American law. It does not lay down a specific rule of but it implies a fundamental principle of justice. These words have nowhere been defined either in the English Constitution or in the American Constitution but we can find their meaning through reading the various antecedents of this expression. As a matter of fact, it can be traced back to the days of King John when the barons wrung their charter from him, i.e., the Magna Carta. The expression “Per Legum Terrea” in the Magna Carta have come to mean “without due process of law”. Chapter 39 of the Charter says:-
“No free man shall be taken, or imprisoned, disseised [sic]14, or outlawed, exiled, or in any way destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of 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, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor indicated, nor put to death, without he be brought to answer by due process of law”. [sic]15
Sir, in the American Constitution, these words were first 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 trial both in procedure as well as in substance. The procedure should be in accordance with law and should be appealable to the civilised conscience of the community. It also ensures a fair trial in substance, that is to say, that substantive law itself should be just and appealable to the civilised conscience of the community. Sir, various decisions of the American Supreme Court, when analysed, will stress the four fundamental principles that a fair trial must be given, second, the court or agency which takes jurisdiction in the case must be duly authorised by law to such prerogative, third that the defendant must be allowed an opportunity to present his side of the case and fourth that certain assistance including counsel and the confronting of witnesses must be extended. These four fundamental points guarantee a fair trial in substance.
Shri H.V. Pataskar: … sAlready the legal aspect of this matter has been discussed at length in this House, but I want to place it before the House (p.277) from another point of view. We are, Sir, at the present moment in a state which is going to be a democracy. Now, democracy implies party Government and party Government, in our country, is rather new and we have instances which lead us to think that the party machine at work is likely to prescribe procedures which are going to lead to the nullification of the provisions which we have made in the Fundamental Rights, which are being given to the people. We know from experience that in certain provinces there are already legislations which have been enacted and which prescribe certain procedures for detention, which have come in for criticism by the public in a very vehement manner. I therefore, submit, Sir, that it is very essential from the point of view of the right of personal liberty, that the words “due process of law” should be particularly there.
Shri K.M. Munshi: … I want to support amendment … which seeks to incorporate the words “without due process of law” in substitution of the words “except according to procedure established by law”. In my humble opinion, if the clause stood as it is, it would have no meaning at all, because if the procedure prescribed by the law were not followed by the courts, there would be the appeal court in every case, to set things right. This clause would only have meaning if the courts could examine not merely that the conviction has been according to law or according to proper procedure, but that the procedure as well as the substantive part of the law are such as would be proper and justified by the circumstances of the case. We want to set up a democracy; the House has said it over and over again; the essence of democracy is that a balance must be struck between individual liberty on the one hand and social control on the other. We must not forget that the majority 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 of individual liberty and the demands of social control. Eminent American constitutional lawyers are agreed on the point that no better scheme could have been evolved to strike a balance between the two. Of course, as the House knows, lawyers delight to disagree and there is a certain volume of opinion against it in America, but as pointed out by my honourable Friend, Mr C.C. Shah, we have made drastic changes in the American clause. The American clause says that no person shall be deprived of his life, liberty or property without due process of law. That clause created great difficulties with regard to laws relating to property. That word has (p.278) been omitted. The word ‘liberty’ was construed widely so as to cover liberty of contract and that word has been qualified. This clause is now restricted to liberty of the person, that is, nobody can be convicted, sent to jail or be sentenced to death without due process of law. …
I know some honourable Members have got a feeling that in view of the emergent conditions in this country this clause may lead to disastrous consequences. With great respect I have not been able to agree with this view. … Take even our Public Safety Acts in the provinces. In view of the condition in the country they would certainly be upheld by the court of law and even if one 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 each province will be sufficient to legislate in such a manner that law and order could be maintained.
Therefore, my submission is that this clause is necessary for this purpose and is not likely to be abused. 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 or 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. …
Shri Alladi Krishnaswami Ayyar: … Sir, at least in justification of the change suggested by the Drafting Committee, I owe it to myself, to my colleagues and the respected Chairman of the Drafting Committee, to (p.279) say a few words, because, up to the last moment, presumably, the House is open to conviction.
The expression ‘due process’ itself as interpreted by the English Judges connoted merely the due course of legal proceedings according to the rules and forms established for the protection of rights, and a fair trial in a court of justice according to the modes of proceeding applicable to the case. Possibly, if the expression has been understood according to its original content and according to the interpretation of English Judges, there might be no difficulty at all. The expression, however, as developed in the United States Supreme Court, has acquired a different meaning and import in a long course of American judicial decisions. Today, according to Professor Willis, the expression means, what the Supreme Court says what it means in any particular case. It is just possible, some ardent democrats may have a greater faith in the judiciary than in the conscious will expressed through the enactment of a popular legislature. Three gentlemen or five gentlemen, sitting as a court of law, and stating what exactly is due process according to them in any particular case, after listening to long discourses and arguments of briefed counsel on either side, may appeal to certain democrats more than the expressed wishes of the legislature or the action of an executive responsible to the legislature. In the development of the doctrine of ‘due process’, the United States Supreme Court has not adopted a consistent view at all and the decisions are conflicting. One decision very often reversed another decision. I would challenge anymember of the Bar with a deep knowledge of the cases in the United States Supreme Court to say that there is anything like uniformity in regard to the interpretation of ‘due process’. One has only to take the index in the Law Reports Annotated Edition for fifteen years and compare the decisions of one year with the decisions of another year and he will come to the conclusion that it has no definite import. It all depended upon the particular Judges that presided on the occasion. Justice Holmes took a view favourable to social control. There were other Judges of a Tory complexion who took a strong view in favour of individual liberty and private property. There is no sort of uniformity at all in the decisions of the United States Supreme Court.
Some of my honourable Friends have spoken as if it merely applied to cases of detention and imprisonment. The Minimum Wage Law or a Restraint on Employment have in some cases been regarded as an invasion of personal liberty and freedom, by the United States Supreme (p.280) Court in its earlier decisions, the theory being that it is an essential part of personal liberty that every person in the world be she a woman, be he a child over fourteen years of age or be he a labourer, has the right to enter into any contract he or she liked and it is not the province of other people to interfere with that liberty. On that ground, in the earlier decisions of the Supreme Courtit has been held that the Minimum Wage Laws are invalid as invading 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 any uniformity. I hope that if this amendment is carried, in the interpretation of this clause our Supreme Court will not follow American precedence especially in the earlier stages but will mould the interpretation to suit the conditions of India and the progress and well-being of the country. … It may prove fairly alright if only the Judges move with the times and bring to bear their wisdom on particular issues. … After all the word ‘personal liberty’ has not the same content and meaning as is imported into it by some of our friends who naturally feel very sensitive about people being detained without a proper trial. I equally feel it but that is not the meaning of personal liberty attributed by the American Courts in the context of ‘due process’. I trust that the House will take into account the various aspects of this question, the future progress of India, the well-being and the security of the States, the necessity of maintaining a minimum of liberty, the need for co-ordinating social control 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 secure as we are imagining at present. …
… The Drafting Committee has made the suggestion and it is ultimately for the House to come to the conclusion whether that is correct, taking into consideration the security of the State, the need for the liberty of the individual and the harmony between the two. I am still open to conviction and if other arguments are forthcoming I might be influenced to come to a different conclusion.
Mr Z.H. Lari: … I feel that two things are necessary. We all know that the State, these days, is all-powerful. Its coercive processes extend to the utmost limits but still there is a phase of life which must be above the processes of Executive Government, and that is individual liberty. In America no such word as ‘personal’ existed. There the word liberty alone existed and possibly in that state of things, it was possible to interpret (p.281) it in such a way as to extend the scope of due process of law to other spheres of life but when the word ‘personal liberty’ has been definitely inserted in the clause, I doubt whether any Court which is conscious of the requirements of a State as well as conscious of the necessities of individual liberty, will be so uncharitable to the interest of the State as to interpret it in a way to thwart the proper working of the State. My friend admitted that in the latter rulings in America itself there has been a recognition of the necessities of the State and the word has been interpreted in such a way as not to obstruct the proper working of the State. My submission would be that in this land our Supreme Court will recognise the limits of individual liberty as well as the necessities of the State and interpret it in such a way as to ensure individual liberty of a man.
… And I would beg of the House to consider whether in any country, however emergent and however unstable its conditions, is it necessary or is it not necessary that every individual citizen should feel that he will be heard before he is condemned, and that he will be dealt with in the light of the judgment based on the enquiries and not be subject to arbitrary detention? The House will also remember that lately there was the question of drafting human rights, and already such a draft has been prepared. And one of the clauses therein is that nobody should be subjected to arbitrary detention. Now, what is the way to prevent arbitrary detention? If you have the words in this clause, as they stand at present, namely, ‘procedure established by law’ it means that the legislature is all-powerful and whatever procedure is deemed proper under the circumstances will be binding upon the courts. But, Sir, there are certain procedures which are the inherent rights of man and they should not be infringed upon by any legislative 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 of things, 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 by the executive. You have also the provisions about having ordinances which means that the cabinet–a body consisting of eight to ten persons–decide upon a particular course of action, issue as an ordinance, and, the legislature then has to approve of it, otherwise it would amount to a vote of censure. Therefore the legislature in the last analysis means only the cabinet or the executive and nothing but the executive. The question before us is whether you are going to give such powers to the Executive which can (p.282) infringe even the elementary rights of a person, the elementary rights of personal liberty, or whether you should not put certain checks on the executive which can be done only if you accept the amendment16.
… My friend who spoke on the other side gave instances of legislation in the British period, of rights which were curtailed, and of innocent persons jailed. But I submit with all humility, that every legislature and every government is liable to do such things which the British Government did. You cannot excuse excess of law simply because those excesses 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 State comes in to regulate our life. What do you leave to the State? You leave to the State every thing except personal liberty. As to stability of the State my submission would be that if there are classes or communities which are prone to violence, there are sufficient provisions in this Constitution to deal with them—they are in article 13 (now Art. 19). There, the State can come in and curtail the liberty of such persons, and even nullify their activities. What can an individual do? If there are parties which have got objectives which run counter to the stability of the State, you have already got enough provisions where-by the State can declare those bodies unlawful. But this particular clause deals with a very small sphere of action, namely, personal liberty. My submission is that our State is not so weak as to be subverted by the activities of a particular individual, and mark that, that individual will not have the liberty to do everything. He can be brought before a court. He can be judged in a court of law; no doubt, he will have the assistance of counsel and the Government will have the obligation to produce evidence against him. Does this amount to curtailing the powers of the State? Does this amount to subverting the State? Does it amount to annihilating the State? With all respect to the previous speaker, I feel he took 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 the new Constitution. No doubt, we have to go by realities. We have to take into consideration stern facts. …
…There are two things by which we have to go. One is experience of others. No doubt, every clause can be criticised in one way or other. But we have to be guided by experience. Here is the experience of other countries, and this has shown that the words ‘due process of law’ can exist without jeopardising the existence of the State. Secondly, we know (p.283) that not only here, but throughout the world every assembly is likely to misuse its power. It is bound to happen. Power corrupts. We should profit by the experience of other countries and by what has been observed for centuries. Or should we go by the ipse dixit of X, Y, Z who says that there seems to be some germ of disruption in this clause? My submission is that it is only making a bogey out of nothing. We should not be led away by this bogey into accepting this clause. If this clause is accepted, then the whole Constitution becomes lifeless. The article, as it stands, is lifeless and it makes also the whole Constitution lifeless. Unless you accept this amendment17, you would not earn the gratitude of future generations.
Constituent Assembly Debates 13th December, 194818
The Honourable Dr. B.R. Ambedkar: Mr. Vice-President, I must confess that I am somewhat in a difficult position with regard to article 15 and the amendment moved by my Friend Pandit Bhargava for the deletion of the words “procedure according to law” and the substitution of the words “due process”.
It is quite clear to any one who has listened to the debate that has taken place last time that there are two sharp points of view. One point of view says that “due process of law” must be there in this article; otherwise the article is a nugatory one. The other point of view is that the existing phraseology is quite sufficient for the purpose. Let me explain what exactly “due process” involves.
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. … 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 (p.284) concerned. But, it may not be a good law, that is to say, it violates certain fundamental principles; and the judiciary would have that additional power of declaring the law invalid. The question which arises in considering this matter is this. We have no doubt given the judiciary the power to examine the law made by different legislative bodies on the ground whether that law is in accordance with the powers given to it. The question now raised by the introduction of the phrase ‘due process’ is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.
There are two views on this point. One view is this; that the legislature may be trusted not to make any law which would abrogate the fundamental rights of man, so to say, the fundamental rights which apply to every individual … Another view is this: that it is not possible to trust the legislature; the legislature is likely to err, is likely to be led away by passion, by party prejudice, by party considerations, and the legislature may make a law which may abrogate what may be regarded as the fundamental principles which safeguard the individual rights of a citizen. We are therefore placed in two difficult positions. One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles. Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is rather a case where a man has to sail between Charybdis and Scylla and I therefore would not say anything. I would leave it to the House to decide in any way it likes.
All the amendments moved were negatived and Article 15, as drafted by the Drafting Committee, was adopted.
In the revision stage, the “legal equality” provision was separated and transferred under the heading “Right to equality” as Article 14. Article (p.285) 15, which now dealt only with “protection of life and liberty”, was renumbered as Article 21 and added to the Constitution.19
C. Making of Article 22
Constituent Assembly Debates 15th September, 194920
The Honourable Dr. B.R. Ambedkar: Sir, I move:
That after article 15, the following article (now Art. 22) be inserted:
(1) ′15A. Protection against certain arrests and detentions. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult a legal practitioner of his choice.
(2) 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 excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in this article shall apply:
(a) to any person who for the time being is an enemy alien, or
(b) to any person who is arrested under any law providing for preventive detention;
Provided that nothing in sub-clause (b) of Clause (3) of this article shall permit the detention of a person for a longer period than three months unless:
(a) 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, or
(b) such person is detained in accordance with the provisions of any law made by Parliament under Clause (4) of this article.
(4) 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.’
Sir, the House will recall that when at a previous session of this Assembly we were discussing article 15, there was a great deal of (p.286) controversy on the issue as to whether the words should be “except according to procedure established by law”, or whether the words “due process” should be there in place of the words which now find a place in article 15. It was ultimately accepted that instead of the words “due process”, the words should be “according to procedure established by law”. I know that a large part of the House including myself were greatly dissatisfied with the wording of article 15. It will also be recalled that there is no part of our Draft Constitution which has been so violently criticised by the public outside as article 15 because all that Article 15 does is this, it only prevents the executive from making an arrest. All that is necessary is to have a law and the law need not be subject to any conditions or limitations. In other words, it was felt that while this matter was being included in the Chapter dealing with Fundamental Rights, we were giving a carte blanche to Parliament to make and provide for the arrest of any person under any circumstances as Parliament may think fit. We are therefore now, by introducing article 15A making, if I may say so, compensation for what was done then in passing article 15. In other words, we are providing for the substance of the law of “due process” by the introduction of article 15A.
Article 15A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilized country follows as principles of international justice. It is quite true that these two provisions contained in Clause (1) and (2) are already to be found in the Criminal Procedure Code and therefore probably it might be said that we are really not making any very fundamental change. But we are, as I contend, making a fundamental change because what we are doing by the introduction of article 15A is to put a limitation upon the authority both of Parliament as well as of the Provincial Legislature not to abrogate these two provisions, because they are now introduced in our Constitution itself.
It is quite true that the enthusiasts for personal liberty are probably not content with the provisions of clauses (1) and (2). They probably want something more by way of further safeguards against the inroads of the executive and the legislature upon the personal liberty of the citizen. I personally think that while I sympathise with them that probably this article might have been expanded to include some further safeguards. I am quite satisfied that the provisions contained are sufficient against illegal or arbitrary arrests. (p.287)
As Members will see, the provisions contained in clauses (1) and (2) of article 15A are made subject to certain limitations which are set out in Clause (3) which says that the provisions contained in clauses (1) and (2) of article 15A will not apply to any person who for the time being is an alien enemy. I do not think that there could be nay further objection to the reservation made in clause (3) (a) in respect of an enemy alien. With regard to sub-clause (b) of clause (3) I think it has to be recognized that in the present circumstances of the country, it may be necessary for the executive to detain a person who is tampering either with public order as mentioned in the Concurrent List or with the Defence Services of the country. In such a case I do not think that the exigency of the liberty of the individual should be placed above the interests of the State. It is on that basis that sub-clause (b) has been included within the provisions of clause (3).
There again, those who believe in the absolute personal liberty of the individual will recognise that this power of preventive detention has been helped in by two limitations: one is that the Government shall have power to detain a person in custody under the provisions of clause (3) only for three months. If they want to detain him beyond three months they must be in possession of a report made by an advisory board which will examine the papers submitted by the executive and will probably also give an opportunity to the accused to represent his case and come to the conclusion that the detention is justifiable. It is only under that that the executive will be able to detain him for more than three months Secondly, detention may be extended beyond three months if Parliament makes a general law laying down in what class of cases the detention may exceed three months and state the period of such detention.
Pandit Thakur Das Bhargava: … The House has just heard the speech of the honourable Mover of the main motion. I need not recall to the memory of the House the heated controversy which raged about a year and a quarter ago round the words ‘due process of law’. Now a substantive part, of the ‘due process’ has practically been given up after 70 per cent being secured in article 13 (now Art. 19). I should think that in the circumstances of our country, this provision of ‘due process’ is certainly necessary cent per cent. It is the only right process in this country. Our country (p.288) is not trained to the restraints and discipline which mark out a country in which democracy has worked for a long time. Our country is full of autocratic ideas. The domination by a foreign power of this country for hundreds of years has so demoralised our character that a man in the street… (he is interrupted and then there is a break in the continuity of the sentence)
…In the long history of the struggle for liberty which the Congress had to wage with the foreign government, the High Courts and the Supreme Court many a time held that the laws passed by the bureaucracy were not valid. Now, this power is being taken away from our Indian courts in the name of liberty. My submission is that the first casualty in this Constitution is justice. After all what is a fundamental right? A fundamental right is a limitation of the powers of the executive and the legislature. Whatever fundamental rights we have given in this Constitution, lately an attempt has been made to take them away. Article 15 is the crown of our failures because by virtue of article 15 we have given the Executive and the legislature power to do as they like with the people of this country, so far as procedure is concerned. …
Now, Sir, Dr. Ambedkar says that he has given a compensation for that clause. He has given us these two clauses (1) and (2). …
Now, in regard to the two matters of arrest and detention, these two clauses are sought to be introduced; but what happens after a person is arrested or detained? His troubles begin then. When he is detained or arrested and he is in the clutches of the police, he is alone in the world, and the forces of the Police, the forces of the Crown and all other forces combine against him and he is helpless. We have made absolutely no provision to save him from the tyrannies of the police and the courts. After all, what is the magistracy? When we come to the other articles which are coming before the House, 209, etc., we will realize that the whole panorama of Swaraj is being taken away from us bit by bit. All the powers of the magistracy will remain in this country as before. They are not going to make any change as far as the question of the separation of the judiciary from the executive is concerned. Knowing well what kind of magistracy we have, we should at least provide some sort of check by the way of procedure at least. If you do not allow the courts, even the highest courts in this land to pronounce if any law is valid and just, you must at least have some compensatory thing. In regard to these principles, only two are sought to be put in. Now, after arrest and detention, there is absolutely no sort of rights which is sought to be given.
(p.289) Sir, if you will kindly examine these two clauses (1) and (2), you will be pleased to see that not only no further right is sought to be given, but also that they take away from the existing rights. In regard to 15 A (1) (now Art. 22(1)), I submit it reads thus:
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult a legal practitioner of his choice.”
The law at present is that no person is to be kept in detention for a single minute longer than is necessary or reasonable. This section does not even give this right that the executive will be compelled to produce a person arrested before a court as soon as possible. If an officer detains a person longer than is necessary, he cannot be called upon to explain now. Fundamental Rights mean that these rights cannot be taken away by the legislature or the executive. Left to myself, I would rather be without any fundamental right, unless there is modicum of right which ensures the liberty of the citizen. Sir, the present practice under 61 of the Criminal Procedure Code is as soon as a person is arrested, he must be produced before court within twenty-four hours, excluding the time taken for the journey from the place of arrest to the nearest magistrate’s court.
Then again, Sir, a very important and salutary check has been placed on the authority of the Magistrate by virtue of provision 167 (3) which say: “A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.”… When a person is brought before a Magistrate, this is exactly the time when his fate is going to be sealed or to be bettered. …
I claim that unless these words are there, you will be taking away a very important right of the accused. If you put these words, then it would mean this that as soon as a man comes, as soon as the papers are presented to the Magistrate, it is the duty of the Magistrate to see how long the remand is to be given for how long this man is to be put in the dungeon and give full reasons and these reasons could be scrutinized by the superior Courts and the accused could get that order revised. This order is revisable; it is a judicial order; it is not an executive order and therefore, reasons must be given. If reasons are given then, of course, we may say that the order is justified. If you provide the reasons to be (p.290) given, then the Magistrate will be called upon to explain; he will have to hear the lawyer and then pass an order whether a man is to be detained for ten or five days and for what reasons he has to detain him. If you do not condition his order with the words “and for reasons recorded”, the probability is that the Magistrate will mechanically make the order of remand.
In practice what happens? The police is all powerful, they misinform the persons, ill-treat him and his relations and give them wrong reasons of detention. You have got nothing to prevent this being done unless it be by this clause. If a person has misinformed, the accused there is no record of it. You have got no check over the Police and have, no guarantee that these provisions will be, given effect to. Therefore the only check that you can place upon the police and on a Magistrate is, at the time when the man comes for remand and when he comes, you could certainly insist that the reasons must be recorded so that the Magistrate when he records the reasons and when he considers them he may also explain to the accused or to his counsel why he is being detained or for what further period he is to be detained. I only suggest that these words must be added to clause (2) if you really mean that a person may be secured in his rights. I do not think I am asking for more than what is absolutely due to the accused.
I shall come to another clause. No person shall be subject to unnecessary restraints or to unreasonable search of person or property. This clause has a history of its own. I do not want to go into the history of general search, etc., as they happened in England. But, I want to refer to what happened in this very House. On 3 December Kazi Syed Karimuddin brought an amendment in this House in your absence. It was to this effect: …
“The right of the people to be secure in their Persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”
When we were debating this, at the end, Dr. Ambedkar … said: “I am however prepared to accept amendment No. 512 moved by Mr. Karimuddin. (p.291) I think it is a useful provision and may find a place in our Constitution. There is nothing novel in it because the whole of the clause as suggested by him is to be found in the Criminal Procedure Code so that it might be said in a sense that this is already the Law of the land. It is perfectly possible that the legislatures of the future may abrogate the provisions specified in his amendment, but they are so important so far as personal liberty is concerned that it is very desirable to place these provisions beyond the reach of the legislature and I am therefore prepared to accept his amendment.” The amendment was accepted. The Vice President said twice that the amendment was accepted. But then, the question was raised and ultimately this was negatived.
I am submitting this to prove that as a matter of fact, this Drafting Committee which we have appointed, which should have carried out the will of this House, has failed to do so. It has succumbed to extraneous influences from other authorities. I think that so far as this House is concerned, the Drafting Committee should have carried out the behest of this House. Dr. Ambedkar should have been allowed to have his own way. Dr. Ambedkar agrees that this is a useful provision. Yet, now, he is not prepared to accept my humble amendment to this very effect. What is the position? The position is, that the will of the Members of this House is not being implemented by this Drafting Committee. I do not want to read from the speeches of Dr. Ambedkar and Mr. Munshi who also was of this view. He gave very good reasons. I have taken my cue from those gentlemen: they are not my arguments; they are arguments proceeding from those gentlemen. I am very sorry that these gentlemen have had to succumb to pressure from other places. My humble submission is that so far as this amendment is concerned this is one which has been accepted by this House and I beg of Dr. Ambedkar to rise to the occasion and accept at least this amendment. He would have known fully well if he had practised as a criminal lawyer in the mofussil, that as a matter of fact, when houses are searched, it is not the search which we object to, but property is sometimes planted and then searches are made in the presence of witnesses who are procured by the police. The House must remember that at least in 50 per cent of the criminal cases brought before the courts the accused are either discharged or acquitted. The House can see what amount of corruption, what amount of embarrasment and harassment is being caused to the public, on account of this corrupt and incompetent police. (p.292)
I know when we say this we are, condemning ourselves I do not take any pride in saying that the police is so bad. But we have just started reforming them after 200 years of slavery and it may take some time to change. If we continue to have the Cabinet which we have got now for some years more, I think things will improve. But, we must take stock of things as they are. We cannot be complacent that everything is being done rightly. May I humbly submit, Sir, I do not want to paint a gruesome picture, in the present circumstances of the country. But there is no doubt there is great corruption, there is great tyranny and there are no civil liberties in this country. Our ministers at the helm of affairs are not fully aware of the situation. May I tell you, Sir, what happened in Delhi to the refugees? Without any law, police robbed the people of their goods, and broke up their stalls. There was no law; when asked under what law this was being done, the reply was that this was done under executive orders of the Cabinet. Now, my humble submission is that unless there is a reign of law in this country wherein no situation like the one in which we find ourselves will arise, the liberty that we have won is not worth the paper on which it is written.
Similarly when you go to the other question about speedy trial, what are the functions of Government? Justice delayed is justice denied and I need not emphasize it. I am not one of those who want abstract rights—I am not one of those who are opposed to social control in the interest of the community but I do want that personal liberty may be secured to the individual in a full measure. My submission is that we must have the ordinary rights which have been enjoyed by every civilized country.
I now come to the second part of the provision and that is relating to preventive detention. There was a time when detention without trial was regarded as a very heinous offence by itself when every person said that no person should be detained without being tried. Now fortunately or unfortunately the time has come and in every civilised country we have a law about preventive detention. I do not want that my country must not have the safeguard; on the contrary I have always stood for having a law about preventive detention and I am glad that we are going to have clause (4). At the same time I want that the preventive detention may be regulated by law. I want that at least the barest demands of justice be (p.293) secured to a person who is a detainee. … Now I am not satisfied that three months period is the right period which has been prescribed by Dr. Ambedkar. In ordinary cases we give fifteen days to Police for preparing the case. In cases of this nature’ when a case is prepared for this impartial tribunal, then according to me one month is quite sufficient. Taking the exigencies of the time I submit that before two months are over an order should be obtained from an impartial tribunal and not from a board ….
… you call it Board and I call it Impartial Tribunal. If you call it an “Impartial Tribunals”, unconsciously it gives the persons concerned an idea that it is an impartial tribunal. I want that this Board must be armed with the powers of examining the detainee. I regard it as one of the most salutary and one of the most elementary principles of justice.
We passed the other day an article that if a civil servant—if he was going to be reduced in rank or moved or dismissed, he must be given an opportunity of showing cause. Now this man whose liberty is taken away will not have such liberty of showing cause. … I want in our Constitution we must place it that every person who has been detained shall be given an opportunity before a tribunal to explain his conduct and evidence against him and know the sources and the subject matter of evidence against him. He may be able to explain his conduct. I beg that this clause should be considered from this point of view. I want that this Board may be given the power of summary enquiry and examination of the detainee.21
Now with regard to the ultimate period my humble submission is that in India the anticipation of life is said to be only 23 years and one year is certainly not a very short period because after that if the police is not able to secure evidence within that year and place before the Court, then I would imagine the evidence on which he is sought to be retained is not worth the paper on which it is written. Therefore this period may be taken to be one year.22
…In fairness the Executive has to account for every minute of the detention of such persons. It is in the laws of every country that no police officer is authorized to keep a person detained for a moment longer than is absolutely necessary and three months even is an unconscionably long period. I would like to reduce it further, but I would not go further than two months. (p.294)
Shrimati Purnima Banerji: … Sir, the article with which we are dealing at the present moment is a very serious one as it takes away some of the liberties granted by article 15 as fundamental rights and provides for arrests of persons and even detention of persons without trial; I am sure I am voicing the views of most of my colleagues here that any form of detention of persons without trial is obnoxious to the whole idea of democracy and to our whole way of thinking.
Further it has been said that any detenu who has been put into jail shall be detained for three months till an Advisory Board decides whether he should be detained for a longer period. We feel that the detenu should be permitted to appear before this Advisory Board in person and state his case in full. We know the process how the person is detained. If a person is considered undesirable, the local Magistrates or the local authorities leave it to their subordinates to handle the situation and even to decide upon the situation, Then it happens that people in these situations have no manner or measure of relief because they are simply detained and not allowed to appear before any court and not told for the time being why they are being detained. Therefore we do feel that after being detained a detenu should have the right to appear before the Advisory Board in person before he is condemned or his detention is upheld. No facts regarding the detenu should ordinarily be withheld from the Advisory Board.
… if the Advisory Board should consider that such a person should be detained, in no case should that period exceed six months. I am sure that within that period if sufficient evidence is found against the accused the proper course would be that he should be placed before a proper court or he should be released. Continuous detention from month to month without a person getting a chance of appearing, or considering himself, sufficiently defended, before a properly constituted Board is highly arbitrary.
… whereas in our Constitution many provisions have been made as to how much salary one should draw, what allowance members of the House shall get, what shall be each one’s position and status, if a person is detained in prison and if he is an earning member of the family I do earnestly plead that he should be given a maintenance allowance. It should not be left to the arbitrary will of any one to (p.295) deprive anybody of his liberty and then later on to decide, by leaving it to their sweet will, as to how his dependents shall live and maintain themselves.
Dr. P.S. Deshmukh: … In addition to the sections which have been referred to by my Friend, Pandit Thakur Das Bhargava from the Criminal Procedure Code I would like to refer to section 81 also. He has referred to section 61 where it has been laid down that:
“No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable. and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.”
So, the period of the detention not to exceed beyond twenty-four hours, is already provided for in the Criminal Procedure Code. In addition to that we have got section 81, which is as follows:
“The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 76 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.”
In addition to these there is Section 167 to which a reference has already been made by my friend and that lays down the procedure when the investigation cannot be completed in twenty-four hours and a maximum period of fifteen days is allowed there. In addition to all these we have got the rights of the nature of habeas corpus which have been provided in sections 460 and 461.
So, on comparing the provisions that exist in this Code of Criminal Procedure passed as early as 1898 with the provisions which we are seeking to make now, I was struck that a person like the Honourable Dr. Ambedkar could find anything new in it and these provisions which existed had been respected till we came into power more scrupulously than they have been of recent days. They were quite sufficient to protect the liberties of the people of this country. I do not think it can be said that there were very many cases in which these provisions in the Criminal Procedure Code were disrespected or violated. But the reason why we feel, the necessity of something being stated in the Constitution itself is, a reflection of the present day events, of what is happening, and the administration of law and justice in the Provinces, and probably through (p.296) the Ordinances that we have promulgated and the legislations that we have passed in the Centre also.
So, the apprehension that the liberty of persons living in India will not be safe is not really based on the inadequacy of provisions existing in the Criminal Procedure Code. It arises from the fact that the provisions, which we had respected far more before, are not being respected today. I admit the fact that at the present moment we are not respecting the provisions which exist because there are many people who feel that the liberties or the rights given by the Code of Criminal Procedure or the penal laws of India are not such as can be enjoyed by people after freedom. I am quoting no less a person than Mr. K.M. Munshi who categorically stated in the Legislative Assembly that this Code of Criminal Procedure is out of date because people have got into the habit of committing offences and this Code which gives more liberties cannot be worked and is leading to many difficulties so far as the administration is concerned.
If that is the point of view, if that is the attitude, then article 15A cannot be much of a remedy. The present situation is certainly most obnoxious. We know of instances in every Province where people’s liberties are taken away. I will give a most poignant instance which should make every Member of the House sit up and think. Two MLAs who were in Congress for eighteen years, who were elected on the Congress ticket, were detained by an order of the Bombay Government which is a Congress Government. One of them was released after a period of eleven months without being told at any time what the charges against him were, without there being any trial, without conviction, when his health was about to break down the Government was pleased to release him. The second MLA is still in jail; he has not been tried, he has never been told what the allegation against him is, what offence he has committed; and to add insult to injury he has been told that because he has not attended the Legislative Assembly for a certain minimum period as laid down by the law, he ceases to be an MLA of that Province. A person has been prevented from attending the Assembly because of an act of the Government and that has been made as a ground for ousting him from the membership of the Legislative Assembly. That I think is the height of disrespect for law. If that is the respect for law that we have, if that is the sort of administration that is going on in the Provinces and we are not to look into it or question their propriety, I do not think any provision in the Fundamental Rights would be of any use to us. (p.297)
If you want to prevent this sort of thing happening, you will have to go much farther than you are prepared to go in this article. This article can be no remedy; it is a mere repetition of what exists in the Code of Criminal Procedure and if you are not prepared to respect that Code I am sure there will not be much respect given to this provision either. As was pointed out by my Friend Pandit Thakur Das Bhargava you are going to put in obstacles in the way of Parliament in enlarging the rights of the individuals; by the inclusion of sub-clause (3) you are going to lay down a procedure for all cases of preventive detention. If tomorrow the Legislature of a State or even the Parliament wishes to deal with the preventive detenus in a more liberal manner, they will be prevented from doing so by the fact that there is a provision in the Constitution which is of a fundamental nature and which cannot be altered by the Parliament. Therefore, this provision is absolutely useless. It does not protect the individual in any way to any greater extent than does the Code of Criminal Procedure. If you think that the Code of Criminal Procedure ought to be respected by the Provinces or by any individual who goes against it, there shall be some provision by which this evil can be prevented. But this is not the way in which it can be done. That is my humble opinion ….
Shri H.V. Kamath: … 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 23 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”. (p.298) … 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.
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 before arrest. 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. (p.299)
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.
(The heated argument on this point did not continue after this. The phrase “as soon as may be” was not replaced with the more specific term “immediately”. Unfortunately, no amendment seeking replacement of the phrase “as soon as may be” with “immediately” was moved. The amendments moved were amendments which specified twenty-four hours, 7 days and 15 days as the time limit; they were put to vote and, rightly, negatived by the Assembly.)
(Moving an amendment 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, Shri H.V. Kamath said:) In the article as moved by Dr. Ambedkar there is no satisfaction on 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.
(Moving an amendment to the effect that no detained person shall be subjected to physical or mental ill-treatment, Shri H.V. Kamath said:) 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 clothes 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 (p.300) 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.
Shri H.V. Pataskar: (Moving an amendment to the effect that in sub-clause (b) of the operative part of clause (3) of the proposed new article 15A [now Art. 22], after the word ‘law’ the words ‘of the Union’ be inserted) … Clause (3) is in the nature of a proviso, or an exception being made (to the provision already made) in clauses (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. They differ 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 (p.301) 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 as 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 not 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 without trial. I learn on good reliable authority that even in foreign countries we are being blamed for the way in which some of these provisions are being carried out. (p.302) Is it not desirable therefore that we have one uniform legislation? We have got our freedom newly. People have not learnt 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.
Shri R.K. Sidhva: … 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 feel 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 ….
… 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 (p.303) 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 CID 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 him so 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 exparte decisions by the judges on a mere statement from the CID 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 (p.304) 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 he 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 have no 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 (p.305) 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.
Dr. Bakhshi Tek Chand: … 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 world 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, at 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 drifted from the position which they had 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 (p.306) 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 state 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. … 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: (p.307)
“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 withing 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 Article 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 the 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.”
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 Japanese Constitution. 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.
… 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 had 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.” (p.308)
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 property. 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 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: (p.309)
“Article XXXIII. No person shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense 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.
Article XXXV. 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 for adequate cause and particularly describing the place to be searched and things to be seized, or except as provided by Article XXXIII.
(2) Each search or seizure shall be made upon separate warrant issued by a competent judicial officer.
Article XXXVI. 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.
(2) 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.
(3) At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State.”
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?
…the speech of Shri Alladi Krishnaswami Ayyar in that debate (13th December 1948) … was directed mainly in expounding the uncertainty of the meaning of the expression “due process of law”, but he gave no (p.310) 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 [sic]24 of the Japanese Constitution, in article 15 of our Constitution, without the safeguards which that Constitution has incorporated in Act XXXII [sic]25 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 would again 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.
… 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 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. (p.311)
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 ….
“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.”
… 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 Art 15A.
Shri Alladi Krishnaswami Ayyar: … 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 (p.312) “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 the United States Supreme Court, in the days when the Conservative regime dominated the USA 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 fair play and 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 (p.313) 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.26 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 (p.314) 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 ….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. (p.315)
Beyond that, Parliament will intervene. Otherwise, that procedure [sic]27 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 exercsed side by side, the Criminal Procedure Code and the Constitutional guarantee ….
Constituent Assembly Debates 16th September, 194928
Shri Jaspat Roy Kapoor: …The chapter can more appropriately be called “Limitations on Fundamental Rights” or after the words “Fundamental Rights” we can add the words “and limitations thereon”. For the emphasis seems to be not so much on rights of liberty as on restrictions and limitations thereof ….
With regard to the … persons who are, to be detained for security purposes, they are being given no rights worth the name in this article. Clause 3(b) provides that “Nothing in this article shall apply (p.316) to any person who is arrested under any law providing for preventive detention”, which means that the elementary right of not being detained beyond 24 hours except under the authority of a magistrate is being denied to the person detained, and he can continue to be detained for any length of time, subject of course to certain provisions of the law under which he may be detained. But that is another thing. It may be said that no preventive law would provide for the arrest and detention of a person without the authority of a magistrate. That means that you are depending on the good sense of the legislature. If so, there is no occasion for guaranteeing anything in the chapter on fundamental rights. In this chapter we must provide for certain essential fundamental rights irrespective of the fact that the legislature may or may not be reasonable. So this right of not being detained except with the authority of a magistrate is not being conceded to a person who is to be detained for security purposes.
Then, the person detained may be continued in detention for any length of time, except that if it goes beyond three months the advice of an advisory board would be necessary. Even here we find that after the board has considered his case he can continue to be detained for any length of time. That I consider to be very unfair. I think we should provide for the periodical review of such cases. I gave notice of an amendment to that effect but could not move it, as I was unfortunately unable to be present here when its turn came. But if it appears to be necessary to Dr Ambedkar I think he can make a provision here to that effect. What I suggest is that the case should be reviewed every three months or even after longer intervals, so that the person detained may have the satisfaction of knowing that his case is being periodically reviewed. Otherwise: it will mean that if, after three months of detention, the Advisory Board feels that he should continue to be detained, his case will not be reviewed at all thereafter and he will be at the mercy of the executive for any number of years.
Shri Brajeshwar Prasad: Is it a fact that he will be detained for any number of years, or will a maximum limit be prescribed by Parliament.
Shri Jaspat Roy Kapoor: It is not obligatory on Parliament to prescribe any maximum limit. Clause (4) says that Parliament may, if it so chooses, enact such a law, but it does not impose any obligation on Parliament. (p.317) And besides a person detained under a law enacted by Parliament under clause (4) would not have, according to clause (3), proviso (b), the benefit of review of his case at all by the Advisory Board.
Shri Brajeshwar Prasad: If Parliament makes a law it will have to lay down a maximum limit.
Shri Jaspat Roy Kapoor: Yes, but is it obligatory on Parliament to make such a law? And even if it does make the law, where is it prescribed that the maximum must be fixed and even if it is fixed, is any period being suggested here? Must not this Assembly suggest to Parliament for its guidance that such and such a period shall be the maximum period of detention which must be provided in the law which Parliament may make? You are again leaving the whole thing to the good sense of Parliament. If so, why make an unnecessary show of this article 15A by saying that you are conceding certain fundamental rights, whereas, as a matter of fact, you are suggesting the extent to which the legislature can freely go to impose limitations on personal liberty ? So far as detenus are concerned, they are given no protection in this chapter and I submit that this is very hard and strikes at the very root of fundamental rights and personal liberty. The person detained may be kept in detention without the sanction of the magistrate and for any length of time and without even reason for detention being told to him. There shall be only one review of his case and there shall be no periodical review. I submit, if nothing else is conceded by the Honourable Dr. Ambedkar, at least this one thing should be conceded, namely, that the cases of such persons shall be reviewed periodically after every three months, or it may be even after six months: otherwise, once a person is detained, and once the Advisory Board agrees to his detention for a period longer than three months, the fate of that person is virtually sealed and he is doomed. He is absolutely at the mercy of the Executive. After six months, after nine months and even after twelve months the conditions in the country may change. Something more may come to light and those changed circumstances, those new things must be placed before the Advisory Board, and the Advisory Board, in view of the changed conditions and the fresh facts coming to light and being placed before them, should be in a position to advise the Government whether continued detention for another six, nine or twelve months is necessary. This is a very simple and reasonable thing. Let not this (p.318) last ray of hope which may be created in the detenus be taken away altogether. We who have had the good fortune, I should certainly say, of being detained during the various satyagraha movements, know how many of us anxiously looked forward to the expiry of the period of six months, whereafter we used to think and hope that our cases would be reviewed by the authorities and that they might consider it advisable and necessary to release some of us. Let us not forget these feelings and the experiences which we have had, and let us not forget that though today we are in power, who knows tomorrow someone else may be in power and may be in the position in which the present detenus are! So, whosoever may be detained, let him have these fundamental rights. Without even these rights being guaranteed here it is a huge joke to ask us to accept this article as even guaranteeing fundamental rights, whereas in fact it works more the other way about.
Shri M. Ananthasayanam Ayyangar: … I find here a lacuna. It is not clear to me whether it is open to the Advisory Board to review cases from time to time, say once in three to six months. The cases of people detained in 1942 were reviewed once in six months. There is no such provision in proviso (a) as worded here. The proviso ought to be suitably amended so as to give the power of review to the Board to look into these matters. The Chairman of the Drafting Committee has been able to imagine a number of hardships and has tried to make provision for all of them but there is one thing wanting. He has never been for even a period of three months in jail at any time and therefore he has not thought of the hardships suffered by others. Even the previous government made a provision to review cases once in six months, though it may be said that such a provision for review was useless. But that is a different matter. We must provide here for review from time to time. The Advisory Board should not sit once for all. There may be other circumstances which may necessitate a man’s release after a period of three or six months. So this provision must be subject to a law providing for review from time to time.
Shri Mahavir Tyagi: Sir, Dr. Ambedkar will please pardon me when I express my fond wish that he and the other members of the Drafting Committee had had the experience of detention in jails before they became members of the Drafting Committee.
The Honourable Dr. B.R. Ambedkar: I shall try hereafter to acquire that experience. (p.319)
Shri Mahavir Tyagi: I may assure Dr. Ambedkar that, although the British Government did not give him this privilege, the Constitution he is making with his own hands will give him that privilege in his life-time. There will come a day when they will be detained under the provisions of the very same clauses which they are making, (Interruption). Then they will realise their mistake. It is all safe as long as the House is sitting and the Members are sitting on these Benches. But then let us not make provisions which will be applied against us very soon. There might come a time when these very clauses which we are now considering will be used freely by a Government against its political opponents.
Sir, in this article we are required to grant rights and privileges to the people, but along with them I am surprised to find that it has occurred to the Drafting Committee and their friends and advisers to provide herein penal clauses also. This is a charter of freedom that we are considering. But is this a proper place for providing for the curtailment of that very freedom and liberty? When freedom is being guaranteed, why does the Drafting Committee think it fit to introduce provisions for detaining people and curbing the freedom? This is an article which will enable the future Government to detain people and deprive them of their liberty rather than guarantee it.
Sir, life, liberty and pursuit of happiness are the three chief fundamental rights of every individual. The state comes into being not because it has any inherent right of its own, but because the individual, who has inherent rights of life and liberty, foregoes a part of his own rights and deposits it with the State. Every individual is born equal. That is one principle. So every individual has the inherent right of freedom of life, of liberty and of option for the pursuit of happiness. These rights are inherent and inalienable. Even if one chooses to alienate these rights, I submit, he cannot do so because they are inherent in him and they are inalienable. But the individual voluntarily transfers some of his inherent rights and pools them to the cumulative store of social rights known as the State.
The State is thus organised and constituted, not by depriving people of their inherent rights, but by the voluntary will of the people to enhance those rights and enrich the individual freedom. Individuals agree to form a society In the hope and with the intention that society, with the stock of cumulative rights contributed by them, will help the individual in (p.320) becoming richer with his freedom and freer in his pursuit of prosperity and happiness. So that the State would safeguard his individual freedom against the interference of another individual.
Now we are making a Constitution guaranteeing these inherent rights. What relevancy is there for a detention clause in the Constitution which is meant to guarantee fundamental rights to the citizens? I am afraid the introduction here of a clause of this kind changes the chapter of fundamental rights into a penal code worse than the Defence of India Rules of the old government. I have suffered under the Defence of India Rules long detentions. I have suffered from such detention. How I wish Dr. Ambedkar was with me in jail after being arrested and hand-cuffed for a whole night? I wish he had had my experience. If he had been hand-cuffed along with me, he would have experienced the misery. I fear, Sir, the provisions now proposed by him would recoil on himself. Sir, as soon as another political party comes to power he along with his colleagues will become the victims of the provisions now being made by him.
I say, Sir, that it is not the business of the Constituent Assembly to vest in the hands of the future governments powers to detain people. It is for the coming generations to do that, if they think it necessary and if they want to incur the displeasure of the people by enacting such laws. It is not the business of the Constituent Assembly. In no constitution of the world have I read of such criminal law being enacted by the constitution-makers. We are here to guarantee the rights of the people and not to make criminal laws to deprive people of their rights. We have given here no right of referendum no right of recall, to the people, and still every fundamental right which has been given has been restricted by something or the other. And in this article particularly it is not only restriction, but it is a case of contradiction, total contradiction of the rights. I can never agree to the incorporation of this article.
I would ask Dr. Ambedkar and the Drafting Committee if they are also prepared to arm, the people also with the power to overthrow a government which works destructively against the fundamental rights which they have granted to them. Surely the people have got the right to overthrow, abolish or alter such a government and to constitute another government which they think would be more likely to effect their safety and happiness.
Shri T.T. Krishnamachari: It is an extra-constitutional right. (p.321)
Shri Mahavir Tyagi: The constitution must also say something about the power of the people. Have you given the people anywhere the right to overthrow the government which acts destructively against the rights of the people? That inherent right of the people you have not guaranteed. It is not for us to guarantee the rights of the Government alone. We have to see that government has rights but the people also must have rights. It will be a totalitarian government that we will be having immediately after we pass this Constitution, and I must warn the House that if they bring in so many restrictions on the rights of the people and arm the government with powers to be used against the people, the people may not like this dreadful concentration of power in the government. The government can only have those rights which individuals voluntarily surrender to the government. No government has a right to have powers which individuals are not prepared voluntarily to contribute to it. With these words, I request the Drafting Committee to withdraw this article altogether.
Shri B.M. Gupta: … Intervening at this late stage of the debate I shall be very brief. With regard to the details, they have been discussed at great length and I shall not traverse the same ground over again. I will only say that I am entirely in favour of liberalizing the provision as far as it is possible to be done. With regard to the general nature of the provision I will say that it is not an article over which one can enthuse.
I do not blame Dr. Ambedkar or the Drafting Committee. We are all labouring in these matters under two handicaps. One of them, is that many of the provisions come here as a result of prolonged discussion and negotiation between various schools of thought and various shades of opinion. It is often said that the thing is an integrated whole and we have to take it as a whole or reject it as a whole. We have to pay this price for agreement and concoct. I do not therefore grudge it. But the other difficulty is greater. On occasions like this sympathies of most of us go out to the high principles which in the past we proclaimed from housetops. But there are other friends who occupy seats of authority and responsibility throughout the country. They warn us that the aftermath of war and partition has unchained forces which if allowed to gain upper-hand will engulf the country in anarchy and ruin. They therefore advocate, that Parliament must be able to pass laws arming the Executive (p.322) with adequate powers to check these forces of violence, anarchy and disorder. They are great patriots and our trusted leaders. Many of us are not convinced that dire results would necessarily follow the adoption of the phrase “due process of law”. But the difficulty is this, that even if we were to stand for our own convictions there is no scope far experimenting in such matters. There is a saying in Marathi that whether a thing is a poison or not cannot be tested by swallowing it; because if it is a poison the man dies. So in such matters there is no scope for experiment and we have therefore to heed to the warnings given by our leaders.
This does not mean that these provisions could not be liberalised. Even Dr. Ambedkar himself has said that these provisions could be expanded to add some more safeguards; but in substance we have ultimately to respect the warnings of our leaders and in these circumstances what should be our attitude? Or at least what is my attitude? My attitude is one of indifference. These are minor safeguards. Let them come for whatever they are worth. I will not oppose them with the vehemence of Pandit Bhargava or Bakhshi Tek Chand because after all they can do no harm. At the same time, if they are withdrawn by the Drafting Committee because of the opposition to them, then also no tears will be shed over their exit.
Shrimati G. Durgabai: Mr. President, Sir, while I support the new article 15A moved by Dr. Ambedkar, I shall make a few observations on the subject under consideration ….
I have heard the honourable Members who were the enthusiastic champions of individual freedom and individual liberty, even to the extent of placing the exigencies of individual liberty above the exigencies of the State, describing this article as the Crown of all our failures. Sir, the question before us is this, whether the exigencies of the freedom of individuals or the exigencies of the State is more important. When it comes to a question of shaking the very foundations of the State, which State stands not for the freedom of one individual but of several individuals, I yield the first place to the State. I say this because I know that in my love and enthusiasm for individual freedom, I only stand for myself, and my interests; and the State is far superior, because it stands for the freedom and liberty of several individuals like myself.
My friends who spoke here have criticised the power that is being exercised in the matter of arrest and detentions. But they have not examined the position when this power is to be exercised, and under what (p.323) circumstances. The power is to be exercised only in cases when the individual tampers with the public order, as is mentioned in Concurrent List or with the Defence Services of the country. I need only ask you, to go to my part of the country, Madras, Malabar, Vijayawada. I may tell you, and I may draw your attention that no wife, no mother is feeling secure; they are not sure when their husbands would come back, whether they would return home or not. Such is the position. Also the menfolk when they go out, are not quite sure by the time they return home, whether the wife or the daughters are safe there in the house. That is the position. In that case, what is the State to do? What is the Government to do, to assure some kind of safety and security to these people? Only in those conditions, when there is ample justification will the State resort to arrests and detentions.
This new article 15A introduced by Dr. Ambedkar is a very happy compromise. Think of the 1818 Regulation which had no time limit at all. Thereafter came the Public Security Acts of the various provinces. Now the Board has been introduced in this new article. The Board has got to go through these cases. Also in no case is the detention to go beyond three months, and if it has to exceed, then the Board has got to report. The Court has got to examine the papers and representations made by the Executive, very carefully. Dr. Ambedkar has very ably explained the limitations and the restrictions over this power and I do not want to repeat them because I may be taking up too much time of the House. One point is that in no case is the detention to exceed three months. If it has to exceed, then the Board has to get a report and on that report. only can the detention exceed; and also there is Parliament which would make the law, describing all such cases in which such detention has got to exceed this period. These are the restrictions which are there to limit this power.
…I will only mention one or two points raised by my friend Shrimati Purnima Banerji in her amendments. I must say that I am very much in sympathy with two of her amendments. One of them provided for the personal appearance of the person detained, before the Board, to give reasons and explanations. I think the drafting Committee should have no difficulty in agreeing to that ….
Another amendment of Shrimati Purnima Banerji asks for the maintenance of the dependents of the person detained. Yes, here also I am very much in sympathy with her point, for if the person detained is a (p.324) bread-winner, then his dependents, his immediate dependents have got to be provided. It would be better to give some sort of guarantee about this, instead of leaving it to Executive Power and to their sweet will. But how is it practicable? That is the question. There are many people who are poor, in our country. Her point is that about fifty per cent of the cases would result in releases or discharges. And she also says that the benefit of doubt might be given to the accused in these cases. Are the dependents of the man detained to suffer indefinitely? That is her question. But I say, this is a question which has always been considered by the government of the province and in deserving cases, the necessary relief is being provided. But in another way it might be argued that this is putting a premium on delinquency; if he is assured of provision for his family he might go on committing crimes and challenging the foundations of the State. I think it is better to leave this matter to the provincial Governments or which ever Governments might deal with these cases.
Then, Sir, I think the words “legal practitioner” in article 15A (1) [now Art. 22(1)] require some explanation. We know that Mr. Kasim Razvi engaged counsel from England whose appearance was refused. Now should it be open to this man to engage any one from any place? If there are rules to cover this point I have no objection: otherwise I suggest that after the words “legal practitioner” the words “qualified or authorised to appear in these cases” may be added.
The Honourable Dr. B.R. Ambedkar: Sir, I really did not think that so much of the time of the House would be taken up in the discussion of this article 15-A. As I said, I myself and a large majority of the Drafting Committee as well as members of the public feel that in view of the language of article 15, viz., that arrest may be made in accordance with a procedure laid down by the law, we had not given sufficient attention to the safety and security of individual freedom. Ever since that article was adopted I and my friends had been trying in some way to restore the content of due procedure in its fundamentals without using the words “due process”. I should have thought that Members who are interested in the liberty of the individual would be more than satisfied for being able to have the prospect before them of the provisions contained in article 15-A and that they would have accepted this with good grace. But I am sorry that is not the spirit which actuates those who have taken part in this debate and put themselves in the position of not merely critics but (p.325) adversaries of this article. In fact their extreme love of liberty has gone to such a length that they even told me that it would be much better to withdraw this article itself.
Now, Sir, I am not prepared to accept that advice because I have not the least doubt in my mind that that is not the way of wisdom and therefore I will stick to article 15-A. I quite appreciate that there are certain points which have been made by the various critics which require sympathetic consideration, and I am prepared to bestow such consideration upon the points that have been raised and to suggest to the House certain amendments which I think will remove the criticism which has been made that certain fundamentals have been omitted from the draft article 15-A. In replying to the criticism I propose to separate the general part of the article from the special part which deals with preventive detention; I will take preventive detention separately.
Now turning to clause (1) of article 15-A, I think there were three suggestions made. One is with regard to the words “as soon as may be”. There are amendments suggested by Members that these words should be deleted and in place of those words “fifteen days” and in some places “seven days” are suggested. In my judgment, these amendments show a complete misunderstanding of what the words “as soon as may be” mean in the context in which they are used. These words are integrally connected with clause (2) and they cannot, in my judgment, be read otherwise than by reference to the provisions contained in clause (2), which definitely say that no man arrested shall be detained in custody for more than 24 hours unless at the end of the 24 hours the police officer who arrests and detains him obtains an authority from the magistrate. That is how the section has to be read. Now it is obvious that if the police officer is required to obtain a judicial authority from a magistrate for the continued arrest of a person after 24 hours, it goes without saying that he shall have at least to inform the magistrate of the charge under which that man has been arrested, which means that “as soon as” cannot extend beyond 24 hours. Therefore all those amendments which suggest fifteen days or seven days are amendments which really curtail the liberty of the individual. Therefore I think those amendments are entirely misplaced and are not wanted.
The second point raised is that while we have given in clause (1) of article 15-A a right to an accused person to consult a legal practitioner of his choice, we have made no provision for permitting him to (p.326) conduct his defence by a legal practitioner. In other words, a distinction is made between the right to consult and the right to be defended. Personally I thought that the words “to consult” included also the right to be defended because consultation would be utterly purposeless if it was not for the purpose of defence. However, in order to remove any ambiguity or any argument that may be raised that consultation is used in a limited sense, I am prepared to add after the words “to consult” the words “and be defended by a legal practitioner”, so that there would be both the right to consult and also the right to be defended. A question has been raised by the last speaker as to the meaning of the words “legal practitioner of his choice”. No doubt the words “of his choice” are important and they have been deliberately used, because we do not want the Government of the day to foist upon an accused person a counsel whom the Government may think fit to appear in his case because the accused person may not have confidence in him. Therefore we have used the words “of his choice”. But the words “of his choice” are qualified by the words “legal practitioner”. By the phrase “legal practitioner” is meant what we usually understand, namely, a practitioner who by the rules of the High Court or of the Court concerned, is entitled to practise.
Now, Sir, I come to Clause (2). The principal point is that raised by my Friend Mr. Pataskar. So far as I was able to understand, he wanted to replace the word “Magistrate” by the words “First class Magistrate”. Well, I find some difficulty in accepting the words suggested by him for two reasons. We have in clause (2) used very important words, namely, “the nearest Magistrate” and I thought that was very necessary because otherwise it would enable a police officer to keep a man in custody for a longer period on the ground that a particular Magistrate to whom he wanted to take the accused, or the Magistrate who would be ultimately entitled to try the accused, was living at a distance far away and therefore he had a justifiable ground for detaining him for the longer period. In order to take away any such argument, we had used the words “the nearest Magistrate”. Now supposing, we were to add the words “the nearest First Class Magistrate”: the position would be very difficult. There may be “the nearest Magistrate” who should be approached by the police in the interests of the accused himself in order that his case may be judicially considered. But he may not be a First Class Magistrate. Therefore, we have really to take a choice: whether we shall give the (p.327) accused the earliest opportunity to have his matter decided and looked into by the Magistrate near about, or whether we should go in search of a First Class Magistrate. I think “the nearest Magistrate” is the best provision in the interests of the liberty of the accused. I might also point out to my Friend, Mr. Pataskar, that even if I were to accept his amendment— “the nearest First Class Magistrate” —it would be perfectly possible for the Government of the day to amend the Criminal Procedure Code to confer the powers of a First Class Magistrate on any Magistrate whom they want and thereby cheat the accused. I do not think therefore that his amendment is either desirable or necessary and I cannot accept it.
Now, those are the general provisions as contained in article 15(a), and I am sure…
Pandit Thakur Das Bhargava: Kindly consider…
The Honourable Dr. B. R. Ambedkar: Now, my Friend, Pandit Thakur Das Bhargava has raised the question of the right of cross-examination.
Pandit Thakur Das Bhargava: And for reasons recorded.
The Honourable Dr. B. R. Ambedkar: Well, that I think is a salutary provision, because I think that the provision which occurs in several provisions of the Criminal Procedure Code making it obligatory upon the Magistrate to record his reasons in writing enables the High Court to consider whether the discretion left in the Magistrate has been judicially exercised. I quite agree that that is a very salutary provision, but I really want my friend to consider whether in a matter of this kind, where what is involved is remand to custody for a further period, the Magistrate will not have the authority to consider whether the charge framed against the accused by the police is prima facie borne out.
Pandit Thakur Das Bhargava: At present also under section 167(3) these words are there. It is today incumbent upon every Magistrate to whom a person is taken to record the reasons if he allows the detention to continue.
The Honourable Dr. B. R. Ambedkar: That is quite true. They are there. But are they very necessary?
Pandit Thakur Das Bhargava: Absolutely necessary?
The Honourable Dr. B. R. Ambedkar: Personally, I do not think they are necessary. Let us take the worst case. A Magistrate, in order to please the police, so to say, got into the habit of granting constant remands, one after the other, thereby enabling the police to keep the (p.328) accused in custody. Is it the case that there is no remedy open to the accused? I think the accused has the remedy to go to High Court for revision and say that the procedure of the Court is being abused.
Pandit Thakur Das Bhargava: How can a poor person go to the High Court?
The Honourable Dr. B.R. Ambedkar: I do not want to close my mind on it. If there is the necessity I think the Drafting Committee may be left to consider this matter at a later stage, whether the introduction of these words are necessary. As at present advised, we think those words are not necessary.
Now I come to the second part of article 15(3) dealing with preventive detention. My Friend, Mr. Tyagi, has been quite enraged against this part of the article. Well, I think I can forgive my Friend, Mr. Tyagi, on that ground because after all, he is not a lawyer and he does not really know what is happening. He suddenly wakes up, when something which is intelligible to a common mind, crops up without realizing that what crops up and what makes him awake is really merely consequential. But I cannot forgive the lawyer members of the House for the attitude that they have taken.
What is it that we are doing? Let me explain to the House what we are doing now. We had before us the three Lists contained in the Seventh Schedule. In the three Lists there were included two entries dealing with preventive detention, one in List I and another in List III. Supposing now, this part of the article dealing with preventive detention was dropped. What would be the effect of it? The effect of it would be that the Provincial Legislatures as well as the Central Legislature would be at complete liberty to make any kind of law with preventive detention, because if this Constitution does not by a specific article put a limitation upon the exercise of making any law which we have now given both to the Centre and to the Provinces, there would be no liberty left, and Parliament and the Legislatures of the States would be at complete liberty to make any kind of law dealing with preventive detention. Do the lawyer Members of the House want that sort of liberty to be given to the Legislatures of the States and Parliament? My submission is that if their attitude was as expressed today, that we ought to have no such provision, then what they ought to have done was to have objected to those entries in List I and List III. We are trying to rescue the thing. We have given power to the Legislatures of the State and Parliament to make (p.329) laws regarding preventive detention. What I am trying to do is to curtail that power and put a limitation upon it. I am not doing worse. You have done worse.29 Coming to the specific provision contained in the second part, I will first…
Pandit Thakur Das Bhargava: Who made those Lists?
The Honourable Dr. B.R. Ambedkar: I made them: you passed them. I had these limitations in mind. Now I come to the proviso to clause 3 (b).
Shri Mahavir Tyagi: Will you help laymen to understand as to why you have not provided for the revision by the Advisory Board of the cases under clause (4)?
The Honourable Dr. B.R. Ambedkar: I cannot explain to him the legal points in this House. This House is not a law class and I cannot indulge in that kind of explanation now. The honourable Member is my friend; if he does not understand he can come and ask me afterwards.
Now I will deal with the proviso which is subject to two sorts of criticisms. One criticism is this: that in the case of persons who are being arrested and detained under the ordinary law as distinct from the law dealing with preventive detention, we have made provision in clause (1) of article 15A that the accused person shall be informed of the grounds of his arrest. I said we do not make any such provision in the case of a person who is detained under preventive detention. I think that is a legitimate criticism. I am prepared to redress the position, because I find that, even under the existing laws made by the various provincial governments relating to preventive detention, they have made provision for the information of the accused regarding the grounds on which he has been detained. I personally do not see any reason why when provinces who are anxious to have preventive detention laws have this provision, the Constitution should not embody it ….
After clause (3) of article 15A the following clause be inserted:
“(3a) Where an order is made in respect of any person under sub-clause (b) of clause (3) of this article the authority making an order shall as soon as may be communicate to him the grounds on which the order has been passed and afford him the earliest opportunity of making a representation against the order.
(b)Nothing in clause (3a) of this article shall require the authority making any order under sub-clause (b) of clause (3) of this article to disclose the facts which that authority considers to be against the public interest to disclose.” (p.330)
The Honourable Shri K. Santhanam: Is it in addition to the provision in clause (1) ? There is already a provision that no person shall be detained in custody without being informed.
The Honourable Dr. B.R. Ambedkar: It does not deal with persons arrested for preventive detention.
The Honourable Shri K. Santhanam: Does it not include a person who is arrested for preventive purposes? I thought clause (1) includes every kind of detention.
The Honourable Dr. B.R. Ambedkar: No. That is not our understanding anyhow. The cases are divided into two categories.
Shri Mahavir Tyagi: He is a lawyer.
The Honourable Dr. B.R. Ambedkar: That is in a court of law, not here.
Mr. President: He is not a lawyer.
The Honourable Dr. B.R. Ambedkar: I think it would be much better to say: Nothing in clauses (1) and (2) shall apply to clause (3). That is the intention. So I have met that part of their criticism.
Now I come to the question of three months’ detention without enquiry or trial. Some Members have said that it should not be more than 15 days and others have suggested some other period and so on. I would like to tell the House why exactly we thought that three months was a tolerable period and 15 months too long. It was represented to us that the cases of detenus may be considerable. We do not know how the situation in this country will develop what would be the circumstances which would face the country when the Constitution comes into operation, whether the people, and parties in this country would behave in a constitutional manner in the matter of getting hold of power, or whether they would resort to unconstitutional methods for carrying out their purposes. If all of us follow purely constitutional methods to achieve our objective I think the situation would have been different and probably the necessity of having preventive, detention might not be there at all.
But I think in making a law we ought to take into consideration the worst and not the best. Therefore if we follow upon that position, namely, that there may be many parties and people who may not be patient enough, if I may say so, to follow constitutional methods but are impatient in reaching their objective and for that purpose resort to unconstitutional methods, then there may be a large number of people (p.331) who may have to be detained by the executive. Supposing there is a large number of people to be detained because of their illegal or unlawful activities and we want to give effect to the provisions contained in sub-clause (a) of that proviso, what would be the situation? Would it be possible for the executive to prepare the cases, say against one hundred people who may have been detained in custody, prepare the brief, collect all the information and submit the cases to the Advisory Board? Is that a practical possibility? Is it a practical possibility for the Advisory Board to dispose of so many cases within three months, because I will say that the provisions contained in sub-clause (a) of the proviso are peremptory in that if they want to detain a person beyond three months they must obtain an order from the Advisory Board to that effect.
Therefore, having regard to the administrative difficulties in this matter, the Drafting Committee felt that the exigencies of the situation would be met by putting a time limit of three months. There is no other intention on the part of the Drafting Committee in prescribing this particular time limit and I hope having regard to the facts to which I have referred the House will agree that this is as good and as reasonable a provision that could be made.
Now I come to the Advisory Board. Two points have been raised. One is what is the procedure of the Advisory Board. Sub-clause (a) does not make any specific reference to the procedure to be followed by the Advisory Board. Pointed questions have been asked whether under sub-clause (a) the executive would be required to place before the Advisory Board all the papers connected with the case which have led them to detain the man under preventive custody.
The pointed question has been asked whether the accused person would be entitled to appear before the Board, cross-examine the witnesses, and make his own statement. It is quite true that this sub-clause (a) is silent as to the procedure to be followed in an enquiry which is to be conducted by the Advisory Board. Supposing this sub-clause (a) is not improved and remains as it is, what would be, the consequences? As I read it, the obtaining the report in support of the order is an obligatory provision. It would be illegal on the part of the executive to detain a man beyond three months unless they have on the day on which the three months period expires in their possession a recommendation of the Advisory Board. Therefore, if the executive Government were not to place before the Advisory Board the papers on which they rely, they (p.332) stand to lose considerably, that is to say, they will forfeit their authority to detain a man beyond three months.
Therefore, in their own interest it would be desirable, I think necessary, for the executive Government to place before the Advisory Board the documents on which they rely. If they do not, they will be taking a very grave risk in the matter of administration of the preventive law. That in itself, in my judgement is enough of a protection that the executive will place before it.
If my friends are not satisfied with that, I have another proposal and that is that, without making any specific provisions with regard to procedure to be followed in sub-clause (a) itself, to add at the end of sub-clause (4) [sic]30 the following words:-“and Parliament may also prescribe the procedure to be followed by an Advisory Board in an enquiry under clause (a) of the proviso to clause (3) of this article.” I am prepared to give the power to Parliament to make provision with regard to the procedure that may be followed by the Advisory Board. I think that ought to meet the exigencies of the situation.
Sir, these are all the amendments I am prepared to make in response to the criticisms that have been levelled against the different parts of the article 15A.
I will now proceed to discuss some miscellaneous suggestions. Shri Jaspat Roy Kapoor: In that case, probably sub-section (b) of the proviso to clause (2) will go?
The Honourable Dr. B.R. Ambedkar: Nothing will go.
Dr. Bakhshi Tek Chand: You have agreed that the grounds of the detention will be communicated to the person affected and his explanation taken.
The Honourable Dr. B.R. Ambedkar: And he will also be given an opportunity to put in a written statement.
Dr. Bakhshi Tek Chand: Will you agree also to the other point to which I drew attention, namely, that as in the Madras Act, the explanation will be placed before the Board?
The Honourable Dr. B.R. Ambedkar: All papers may be placed before him. That is what I say.
Dr. Bakhshi Tek Chand: All papers may not be placed before him. I have some experience. They will say that this is a very small matter. If you give him an opportunity to submit an explanation within a specified time, why do you fight shy of incorporating this provision? In sub-clause (2) (p.333) of sub-section (1) of section 3 of the, Madras Act there is provision that the explanation will be placed before the Board.
The Honourable Dr. B.R. Ambedkar: That, I consider, is implicit in what I said.
Dr. Bakhshi Tek Chand: Why not make it clear? It is not there in the Bombay Act or in the United Provinces Act.
The Honourable Dr. B.R. Ambedkar: As I stated, in the requirement regarding the submission of papers to the Advisory Board under sub-clause (a) is implicit the submission of a statement by the accused. If that is not so, I am now making a further provision that Parliament may by law prescribe the procedure, in which case Parliament may categorically say that these papers shall be submitted to the Advisory Board. Now I am not prepared to make any further concession at all.
Shri Mahavir Tyagi: Dr. Ambedkar will please give me one minute?
The Honourable Dr. B.R. Ambedkar: Not now.
Shri Mahavir Tyagi: I want to know whether the detenus under clause (4), according to the law made by Parliament or by the provinces, will have the benefit of their case being reviewed by the tribunal? Sir, I want to know whether the detenus who will be detained under the Act which Parliament will enact under clause (4) will have the privilege of their case being reviewed by the tribunal proposed?
The Honourable Dr. B.R. Ambedkar: My Friend Mr. Tyagi is acting as though he is overwhelmed by the fear that he himself is going to be a detenu. I do not see any prospect of that.
Shri Mahavir Tyagi. I am trying to safeguard your position.
The Honourable Dr. B.R. Ambedkar: I will now deal with certain miscellaneous suggestions made.
Pandit Thakur Das Bhargava: What about the safeguards regarding cross examination and defence?
The Honourable Dr. B.R. Ambedkar: The right of cross-examination is already there in the Criminal Procedure Code and in the Evidence Act. Unless a provincial Government goes absolutely stark mad and takes away these provisions it is unnecessary to make any provision of that sort. Defending includes cross-examination.31
Pandit Thakur Das Bhargava: They even try to usurp power to this extent.
The Honourable Dr. B.R. Ambedkar: If you can give a single instance in India where the right of cross-examination has been taken away, I can understand it. I have not seen any such case. (p.334)
Sir, the question of the maximum sentence has been raised. Those who want that a maximum sentence may be fixed will please note the provisions of clause (4) where it has been definitely stated that in making such a law, Parliament will also fix the maximum period.32
Pandit Hirday Nath Kunzru: The word is ‘may’.
The Honourable Dr. B.R. Ambedkar: ‘May’ is ‘shall’.
Pandit Hirday Nath Kunzru: Parliament may or may not do that.
The Honourable Dr. B.R. Ambedkar: That is true, but if it does, it will fix the maximum.
Another question raised is as regards the maintenance of the detenus and their families.
Shri Jaspat Roy Kapoor: What about periodical reviews?
The Honourable Dr. B.R. Ambedkar: I am coming to that. That is not a matter which we can introduce in the Constitution itself. For instance, it may be necessary in some cases and may not be necessary in other cases. Besides, clause (4) gives power to Parliament also to provide that maintenance shall be given.
Personally, myself, I think the argument in favour of maintenance is very weak. If a man is really digging into the foundations of the State and if he is arrested for that, he may have the right to be fed when he is in prison; but he has very little right to ask for maintenance. However, ex gratia, Parliament and the Legislature may make provision. I think such a provision is possible under any Act that Parliament may make under clause (4).
With regard to the review of the cases of detenus, there again, I do not see why it should not be possible for either the provincial Governments in their own law to make provision for periodical review or for Parliament in enacting a law under clause (4) to provide for periodical review. I think this is a purely administrative matter and can be regulated by law. My Friend Mr. Ananthasayanam Ayyangar, said that I really do not have much feeling for the detenus, because I was never in jail, but I can tell him that if anybody in the last Cabinet was responsible for the introduction of a rule regarding review, it was myself. A very large part of the Cabinet was opposed to it. I and one other European member of the Cabinet fought for it and got it. So, it is not necessary to go to jail to feel for freedom and liberty.
Then there is another point which was raised by my Friend, Mr. Kamath. He asked me whether it was possible for the High Courts to (p.335) issue writs for the benefit of the accused, in cases of preventive detention. Obviously the position is this. A writ of habeas corpus can be asked for and issued in any case, but the other writs depend upon the circumstances of each different man, because the object of the writ of habeas corpus is a very limited one. It is limited to finding out by the court whether the man has been arrested under law, or whether he has been arrested merely by executive whim. Once the High Court is satisfied that the man is arrested under some law, habeas corpus must come to an end. If he has not been arrested under any law, obviously the party affected may ask for any other writ which may be necessary and appropriate for redressing the wrong. That is my reply to Mr. Kamath.
Sir, I hope that with the amendments I have suggested the House will be in a position to accept the article 15A.
Some members of the House wanted the discussion to continue as they felt that discussion on such an important issue cannot be curtailed but others felt that the issue had already taken considerable time and it should be put for voting. A motion questioning what the House thought would be apt was put by the Chair and the House opted for putting the amendment to vote immediately.
All amendments moved by the members, except those moved by Dr. Ambedkar in the light of the discussions in the House, were negatived.
Amendments moved by Dr. Ambedkar were that –
in clause (1) of article 15A, after the word ‘consult’ the words ‘and be defended by’ be inserted;
in clause (3) of article 15A, for the words ‘Nothing in this article’ the words, brackets and figures ‘Nothing in clauses (1) and (2) of the article’ be substituted;
after clause (3) of article 15A. the following clauses be inserted:-
′(3a) Where an order is made in respect of any person under sub-clause (b) of clause (3) of this article the authority making an order shall as soon as may be communicate to him the grounds on which the order has been made and afford him the earliest opportunity of making a representation against the order.
(3b) Nothing in clause (3a) of this article shall require the authority making any order under sub-clause (b) of clause (3) of this article to disclose the facts which such authority considers to be against the public interest to disclose’; that at the end of clause (4) of article 15A, the following be added:- “and (p.336) Parliament may also prescribed by law the procedure to be followed by an Advisory Board in an enquiry under clause (a) of the proviso to clause (3) of this article’.
Article 15A, as amended, was added to the Constitution. It read:
(1) 15 A. Protection against certain arrests and detentions. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) 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 excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply-
(a) to any person who for the time being is an enemy alien, or
(b) to any person who is arrested under any law providing for preventive detention; Provided that nothing in sub-clause (b) of clause (3) of this article shall permit the detention of a person for a longer period than three months unless-
(a) 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, or
(b) such person is detained in accordance with the provisions of any law made by Parliament under clause (4) of this article.
(3a) Where an order is made in respect of any person under sub-clause (b) of clause (3) of this article the authority making an order shall as soon as may be communicate to him the grounds on which the order has been made and afford him the earliest opportunity of making a representation against the order.
(3b) Nothing in clause (3a) of this article shall require the authority making any order under sub-clause (b) of clause (3) of this article to disclose the facts which such authority considers to be against the public interest to disclose.
(4) 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 and Parliament may also prescribed by law (p.337) the procedure to be followed by an Advisory Board in an enquiry under clause (a) of the proviso to clause (3) of this article.
In the course of revision, the Drafting Committee renumbered draft article 15-A as Art.22. The proviso to clause (3) of draft article 15-A was converted into an independent clause (4) in renumbered article 22 and clauses (3-a), (3-b) and (4) were redrafted and renumbered as clauses (5), (6) and (7) respectively.33 Article 22, clauses (3) to (7) now read as follows:
(3) Nothing in clauses (1) and (2) shall apply-
(a) to any person who for the time being is an enemy alien, or
(b) to any person who is arrested or detained under any law providing for preventive detention;
(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless—
(b) such person is detained in accordance with the provisions of any law made by Parliament under clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate t to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose the facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention, and also the maximum period for which such person may be detained under such law, and Parliament may further prescribe by law the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).34
Constitution Assembly Debates 15th November, 194935
Shri T.T. Krishnamachari: … Sir, I beg to move:
“That for clause (4) of article 22, the following clause be substituted:- (p.338)
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
(a) 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:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7); or
(b) Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).”
“That for clause (7) of article 22, the following clause be substituted:-
(7) Parliament may be law prescribe-
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for such detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).”36
The House will understand that this is merely a restatement of clauses (4) and (7) of article 22 incorporating therein the amendment originally tabled by the Drafting Committee… which sought to provide that Parliament may by law indicate the maximum period or prescribe the maximum period during which any person can be detained. … The House will agree that it is a wholesome amendment in that, as clause 4 (a) stood as the House passed it, there is no maximum period prescribed or could possibly be prescribed by Parliament or any authority for the period of detention of any person whom the Advisory Board considers to be a person who should be detained. … subsequently it was found that this has to be closely inter-related to clause (7) which is the operative clause under which Parliament might act. Thereafter it was found that it is better to split up the original clause (7) into three parts and clearly indicate that there will be a maximum period for which any person or any class or classes of persons can be detained by any law providing for such detention. The matter does not involve any controversy and I believe, quite a number of Members of this House who were consulted in this matter were in agreement that this provision was necessary. This is the only provision that (p.339) would really make any indefinite detention impossible. I hope the House will accept the amendments.37
Shri H.V. Kamath: (Three amendments were moved by Shri H.V. Kamath—(1) the proviso to sub-clause (a) of the proposed clause (4) of article 22 should be deleted; (2) in sub-clause (a) of the proposed clause (4) of article 22, for the word ‘or’ occurring at the end the word ‘and’ be substituted; (3) in sub-clause (a) of the proposed clause (7) of article 22 the words ‘without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4)’ be deleted.)
Taking the first of these amendment first, I need not expatiate at great length thereon. I shall only point out that in clause (7) we have merely provided that Parliament may by law prescribe the maximum period for which any person or any class or classes of persons may be detained under any law providing for such preventive detention. After having said that Parliament alone will regulate this matter, no one dare say that any authority in the State will be able to override the law promulgated by Parliament. Therefore in my judgment this proviso to clause (4) is superfluous and redundant. I have no objection to it in principle but I think it is unnecessary. We have laid down clearly that Parliament alone is empowered to regulate the maximum period of detention under this article.
Sir, coming now to my next amendment, … this brief monosyllabic amendment seeks to substitute the word ‘or’ by the word ‘and’. In this amendment, I wish to make a last attempt towards safeguarding the liberty of the individual. Of course this liberty cannot be safeguarded absolutely, because there is no absolute individual liberty nor is there any absolute safeguard against the violation of such liberty by the executive. I only wish to safeguard it in so far as it does not jeopardize the security of the State. If the article stands as it is, then it would mean that if Parliament lays down in a class of cases the maximum period of preventive detention, then, even without recourse to the machinery of the Advisory Board, a person can be detained upto the maximum period of two or three years—whatever period Parliament may prescribe. Clause (4) refers to two classes of cases; in one category fall those whose cases have been referred to the Advisory Board and who have been detained in accordance with the provisions of any law made by Parliament under clause (7).
Under clause (7) Parliament can legislate with regard to the maximum period of preventive detention. I want, Sir, that in every case of (p.340) preventive detention the detenu’s case must be referred to the Advisory Board,–in all cases. If the State, if the Government, wants to detain him for a longer period than three months, his case must be referred to the Advisory Board, whatever the class of case it may be; but as the clause stands, the word “or” complicates and vitiates the whole situation. Therefore I propose to substitute the words “or” by the word “and”, so that every person must be detained under the law of preventive detention and that person’s case must be referred to the Advisory Board in case of detention for a longer period than three months. These are the conditions which must be satisfied before the person can be detained for a period longer than three months. Therefore, I suggest that the word “or” in clause (4) may be replaced by the word “and”.
… I seek to delete the words “without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4)”. This flows logically from the amendment which I have just moved … This amendment … visualizes the reference of all detention cases, irrespective of their category or class or circumstance, to the Advisory Board in cases of detention prolonged beyond the period of three months, and therefore the distinction sought to be made in clause (7) between the class of cases which should be referred to the Advisory Board and the other class where persons are detained without reference to the Advisory Board, goes. Therefore when all cases have to be referred to the Advisory Board in the event of a longer period than three months, the words which I have sought to delete in clause (7) are not necessary.
The only fundamental Right which this article 22 which we discussed at such great length in the last session confers is the right to detain without trial. I do not know what sort of right it is, but whatever it may be, let us mitigate the harshness and the injustice that might result from the abuse of power. I make this last attempt to safeguard the liberty of the individual, in so far as it is not inconsistent with or does not jeopardize the security of the State ….
Shri Ajit Prasad Jain: (Proposes an amendment to the effect that for the proposed proviso to clause (4) of article 22, the following be substituted: “Provided that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law under the authority conferred by Parliament under clause (7)”, but he does not seek to move the amendment)I (p.341)
I find that the redrafted clause (7) does not authorise the Parliament to make any law providing for preventive detention. On the contrary it authorises Parliament to prescribe the circumstances and the classes of cases in which persons may be detained for a period longer than three months. It will be seen that in the opening part of clause (4), ordinarily it will be open to a State Legislature or the Parliament to pass laws for preventive detention for a period upto three months, but two exceptions have been provided: one is sub-clause (a) where the case goes to an Advisory Board consisting of persons qualified to be appointed as judges of the High Court and two is sub-clause (b) when Parliament prescribes the circumstances or the class of cases where a larger period of detention may be provided. It is apparent that in many cases the law will have to be made by the State Legislature as preventive detention falls in the concurrent list. The amendment which I have given takes into account the fact that the law will have to be made by the Legislature of the State but the authority for making that law which prescribes for detention for longer than three months will be made by Parliament. That point is not clear from the amendment of the Drafting Committee and it is to make that point clear that I have moved this amendment.
Shrimati Purnima Banerji: … this new amendment proposed by the Drafting Committee where it says in clause (7) that Parliament may prescribe the circumstances of detention “without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4)” makes us feel that suppose if Parliament has got the power — and we do not content[sic]38 that it has not — of laying down a law by which a man can be detained for more than three months, even so, if any person came under the jurisdiction of that law, would it mean that the case of that person would not go for a judicial review before an Advisory Board. Could the Parliament dispense with the constitution of Advisory Board itself? Sir I suggest that that should not be and the process of review before an Advisory Board should be kept intact even if it may be perfectly legal for parliament to enact a general law providing for detention beyond a period of three months. If in the Constitution you have statutorily provided for the detention of a man without trial for a period of three months you have taken away a part of the sting of that measure by providing an Advisory Board which would look into the matter and give a judicial review of the case and decide whether further detention was justifiable or not. If this is not done the man would be (p.342) dealt with in accordance with the law of the land which Parliament may enact. In the new draft you have specifically said that the Advisory Board need not be consulted. If it means that in the making of the legislation that Board need not be consulted, we are in full agreement and possibly there can be no objection to it. But if it is meant that if a general law provides for the detention of persons for more than three months, and if after the general law has come into force a man innocently has got under the clutches of that law, it seems as the clause now reads in the Constitution that a detenu’s case need not go to an Advisory Board at all. Parliament may be empowered not to constitute an Advisory Board at all for even the judicial review of individual cases and that you are going to leave the formation of such a Board to any future law that Parlaiment may make. I therefore, suggest that the wording of clause (7) of article 22 should remain as it was stated by the Drafting Committee and this particular reference of not consulting the Advisory Board which raises that legitimate doubt in our minds be removed ….
Constitution Assembly Debates 16th November, 194939
The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, in my reply I propose to take certain article which have been subjected to stronger criticism by the Members of the Assembly ….
I begin with article 22. Listening to the debate, I found that this article 22 and its provisions as amended by the Drafting Committee’s amendments, have not been completely understood, and I should therefore like to state in some precise manner exactly what the article as amended by the Drafting Committee’s amendments proposes to do. The provisions of article 22, as amended by the Drafting Committee, contain the following important points.
First, every case of preventive detention must be authorised by law. It cannot be at the will of the executive.
Secondly, every case of preventive detention for a period longer than three months must be placed before a judicial board, unless it is one of those cases in which Parliament, acting under clause (7), sub-clause (a) has, by law, prescribed that it need not be placed before a judicial board for authority to detain beyond three months.
Thirdly, in every case, whether it is a case which is required to be placed before the judicial board or not, Parliament shall prescribe the maximum (p.343) period of detention so that no person who is detained under any law relating to preventive detention can be detained indefinitely. There shall always be a maximum period of detention which Parliament is required to prescribe by law.40
Fourthly, in cases which are required by article 22 to go before the Judicial Board, the procedure to be followed by the Board shall be laid down by Parliament. I would like Members to consider the provisions of this new article 22 as amended by the Drafting Committee, with the original article 15A. It will be seen that the original article 15A was open to two criticisms. One was that (4) (a) did not appear to be subject to maximum period of’ detention prescribed under clause (7). Clause (4)(a) appeared to stand by itself, independent of clause (7). The second defect was that the requirements as to the communications of the grounds of detention did not apply to persons detained under (4) (a). It will now be seen that the present (4) of article 22 removes these two defects as they existed in the original draft of 15A.41
Notwithstanding the improvement made by article 22, I find from the observations of Mrs. Purnima Banerji that she has still some complaint against the article. In the course of a speech yesterday, she said that preventive detention can take place without the authority of law, and secondly, that there are still cases which need not go to the Judicial Board. With regard to her first comment, I should like to say respectfully that she is very much mistaken. Although preventive detention is different from detention under ordinary law, nonetheless, preventive detention must take place under law. It cannot be at the will of the executive. That point is perfectly clear. With regard to the second comment which she has made, that the new article 22 excepts certain cases from the purview of the Judicial Board, I admit that that statement is correct. But I also say that it is necessary to make such a distinction, because there may be cases of detention where the circumstances are so severe and the consequences so dangerous that it would not even be desirable to permit the members of the Judicial Board to know the facts regarding the detention of any particular individual. It might be too dangerous, the disclosure of such facts, to the very existence of the State. No doubt, she will realise that there are two mitigating circumstances even in regard to the last category of persons who are to be detained beyond three months, without the intervention of the Judicial Board. The first is this, that such cases will be defined by Parliament. They are not to be arbitrarily decided by (p.344) the executive. It is only when Parliament lays down in what cases the matter need not go to the Judicial Board, it is only in those cases that the Government will be entitled to detain a person beyond a period of three months. But what is more important to realise is that in every case, whether it is a case which is required to go before the Judicial Board or whether it is a case which is not required to go before the Judicial Board, there shall be a maximum period of detention prescribed by law.42
I think, having regard to these amendments, which have been suggested by the Drafting Committee in article 22, there is a great deal of improvement in the original harshness of the provisions embodied in article 15A ….
When put to vote, all the amendments, except those moved by T.T. Krishnamachari on behalf of the Drafting Committee, were negatived. Art. 22 added to the Constitution now reads as follows:
(1) 22.. Protection against certain arrests and detentions. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult,and to be defended by, a legal practitioner of his choice.
(2) 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 excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply …
(a) to any person who for the time being is an enemy alien, or
(b) to any person who is arrested under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless —
(a) 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: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7); or
(b) Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any (p.345) law providing for preventive detention, the authority making the order shall, as soon as may be, communicate t to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose the facts which such authority considers to be against the public interest to disclose.
(7) Parliament may be law prescribe —
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for such detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).
D. Making of Schedule VII, List I, Entry 9 and Schedule VII. List III, Entry 3
Union Powers Committee First Report43
The First Report of the Union Powers Committee was submitted to the Constituent Assembly on 28 April 1947. This List enumerated only the subjects which ought to be within the domain of the Union However, as this submission synchronized with a rapidly developing political situation with the possibility of a partition of the country looming ahead and no decision on the vital issues dealt with in the report could as such be taken, consideration of the report was deferred and it was agreed that Union Powers Committee might submit a further report in the light of the situation that might eventually develop.
Union Powers Committee Second Report44
The Union Constitution and the Union Powers Committees at three joint meetings on 1, 2, and 3 July 1947, settled the legislative lists. At the first meeting, the Secretariat of the Assembly circulated a statement which listed side by side the items proposed to be included in the Federal List and the items recommended as coming within the Union sphere in the first Report of the Union Powers Committee. In all some twenty-two (p.346) additional items were suggested and preventive detention for reasons of State was one such item. The proposed Federal List was, after scrutiny, adopted with some modifications on July 2.
The committees had little difficulty in settling the other two lists: they decided to adopt generally the Provincial and Concurrent Legislative Lists of the Government of India Act, 1935, subject to such drafting changes as might be necessary to bring them into conformity with the new Constitution.
The second Report of the Union Powers Committee was presented to the President on 5 July 1947.
The guiding principles in the process of framing of the Second Report of the Union Powers Committee are depicted very clearly in the letter dated July 5, 1947, addressed by Jawaharlal Nehru, Chairman, Union Powers Committee, to the President Constituent Assembly,
Momentous changes have since occurred. … The first point accordingly that we considered was whether, in the changed circumstances, the scope of these powers should not be widened. We had no difficulty in coming to a conclusion on this point. The severe limitation on the scope of central authority in the Cabinet mission’s plan was a compromise accepted by the Assembly much, we think, against the judgment of the administrative needs of the country, in order to accommodate the Muslim League. Now that partition is a settled fact, we are unanimously of the view that it would be injurious to the interests of the country to provide for a weak central authority which would be incapable of ensuring peace, of coordinating vital matters of common concern and of speaking effectively for the whole country in the international sphere. At the same time, we are quite clear in our minds that there are many matters in which authority must lie solely with the units and that to frame a constitution on the basis of a unitary State would be a retrograde step both politically and administratively. We have accordingly come to the conclusion—a conclusion which was also reached by the Union Constitution Committee—that the soundest framework of our constitution is a federation with a strong Centre. In the matter of distributing powers between the Centre and the Units, we think that the most satisfactory arrangement is to draw up three exhaustive lists on the lines followed in the Government of India Act of 1935, viz., the federal, the provicial and the concurrent.45
Text of the Report of the Union Powers Committee, 1947.46
List I-Federal Legislative List
4. Preventive detention, in the territories of the Federation for reasons of State. (p.347)
List II-Provincial Legislative List
1. Public order (but not including the use of naval, military or air forces in aid of the civil power); the administration of justice; constitution and organization of all courts, except the Supreme Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subjected to each detention.
List III-Concurrent Legislative List
1. Criminal Law, including all matters included in the Indian Penal Code at the date of commencement of this Constitution, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of the naval, military and air forces Ii aid of the civil power.
2. Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of commencement of this Constitution.
3. Removal of prisoners and accused persons from one unit to another unit.
33. Persons subjected to preventive detention under Federal authority.
Differences in the First and Second Reports of the Union Powers Committee47
List I- federal legislative list.
4. Preventive detention for reasons of State. (No provision in Union Powers Committee First Report. Provision in Government of India Act, 1935, 7th Schedule, List I, item 1.)
list II- provincial legislative list.
1. Public Order (but not including the use of naval, military or air forces in aid of the civil power); … preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention. (Union Powers Committee’s first Report did not contain Provincial List. Govt. of India Act, 1935, 7th Schedule, List II, item 1.)
Constitution Assembly Debates 22nd August, 194748
Shri Himmat Singh K. Maheshwari: Sir, I move. (p.348)
“That for item 4, the following be substituted:
’Preventive detention in a Province for reasons of State connected with defence and external affairs’.”
In List I of the Government of India Act of 1935 what is now item 4 forms part of item No. 1, and reads as follows: “Preventive detention in British-India for reasons of State connected with defence, external affairs or the discharge of the functions of the Crown in its relations with Indian States.” …
…this item only vaguely describes the circumstances in which preventive detention may be ordered. The circumstances are summarised in the words “for reasons of State”. But this might include almost anything under the sun. I suggest, Sir, that it is desirable to state clearly which particular reasons of State should justify preventive detention. I have therefore suggested that such detention should be ordered only in connection with defence and external affairs and not in connection with other matters of which there will be plenty to be dealt with by the Federal Government.
We were told yesterday that List I in the present Report is almost identical with the corresponding Federal Legislative List in the Government of India Act, 1935. Now, although this particular item does find a place in the List, it has been substantially altered to the disadvantage of the States and also to the disadvantage of the subjects in as much as it seeks to spread its tentacles almost to an unlimited extent. I hope, Sir, that the framers of the Report will find it possible to reconsider this particular item and modify-it in the light of the suggestion I have made.
Mr. Hussain Imam:… I do fear that the item itself goes counter to the fundamental rights we hope to secure. Preventive detention is nothing but a method of arbitrary detention without trial. If you want to put a man under trial, then he will come under the ordinary law. No specific provision would be necessary for that purpose. It seems to me that we are trying to revive Regulation 3 of 1818 and similar measures that were taken. No doubt in modern democracy powers of this nature are given, but they are given under circumstances of grave menace to the peace and tranquillity in the country. It was only in times of war that regulations of this sort were passed in European as well as American countries. But in times of peace no reason of State should prevail and cause a person to be detained without his having committed an overt (p.349) act. I therefore feel, Sir, that if this power is to be given, it should be qualified in such a manner that his right of preventive detention should remain with the Centre only in times of war and other grave menace to peace and tranquillity of the country. In ordinary times, a power of this nature would be misused. Human nature being what it is, it is necessary that we should provide some method whereby you can avoid the misuse of power. Power brings with it intoxication and it is rather difficult to imagine that it will not be misused in time of peace. I am therefore suggesting not its deletion, but elaboration so that proper precautions may be taken that it may not be misused.
Pandit Lakshmi Kanta Maitra: Mr. President, Sir, this item No. 4 “Preventive detention in the territories of the Federation for reasons of State” is a very important question involving an important principle. I have listened very carefully to the speech just delivered by my Honourable friend Mr. Hussain Imam. I can only tell him that I am one of those who have systematically opposed the preventive detention in any shape or form in the past. Mr. Hussain Imam rightly apprehends that this provision might lead to abuse and might be an instrument of oppression.
May I tell him that the situation is now completely changed? We must realise that we are going to start a new State of our own, absolutely independent State, and that the Central Government, the Union Government must be armed with certain powers which can be used by it, not for frivolous reason, but for the interests of the State itself. The amendment which has been moved unduly restricts the scope of the powers that are sought to be conferred by item No. 4.
Mr. Hussain Imam has referred to Regulation III of 1818. I am sure he would realise that when the Britishers first came into this country and wanted to stabilise their Government here, in the very early stages of their occupation, they thought it necessary to have some legislative provision, some powers by which they could stop persons, potential mischief makers from doing any mischief to the State. Therefore, from their point of view, in the early days of the British Rule in this country, it was thought necessary that a legislative provision like Regulation III of 1818 should be provided to give the Executive certain powers to deal with mischief-mongers. Now, why does he apprehend that the Central Government, the Union Government which we are now going to set up under the New Constitution should abuse this power? I know no human (p.350) agency, no human machinery is perfect. But you have to give the Central Government certain emergency powers which have got to be exercised by them in the interests of the Dominion itself. If there is an abuse as my honourable friend apprehends, because Regulation III of 1818 in the later stages of the British Rule came in for a lot of abuse — I know a lot of people were deported and civil liberties were suppressed — but now we have got our own State, our own Government elected by the people — and besides, it must not be forgotten that in the Fundamental Rights we have provided a relief of Habeas Corpus. There is no danger of civil liberties being trampled under ruthlessly and carelessly as it has been done in the past under the British Rule.
Therefore, it is not a question of civil liberties being in danger; it is a question of high reasons of State, and reasons of State should take precedence over everything. Therefore, I oppose this motion and support the original proposal for inclusion of item 4 in the federal list.
Mahboob Ali Baig Sahib Bahadur: Mr. President, Sir, my justification for intervening in this debate is to point out that this item in this list is included in order that the Federal legislature might legislate in regard to this item. If we understood that, all the objections raised have no place at all in this discussion. But, as preventive detention is abominable to a free country, to free citizens, some honourable members have sounded a note of warning that the Government coming into power, or rather newly coming into power, as the Honourable Mr. Hussain Imam pointed out, might get intoxicated with power, and in its enthusiasm, especially when it happens to be a party Government, in its enthusiasm to hold its power by all means, it might override the fundamental rights of the people not to be deprived of their liberty without trial. So I do not think that Mr. Hussain Imam was opposed to the granting of powers to the central legislature in this regard, but he only sounded a note of warning.
And now, Sir, even at this juncture it is necessary for us to see that in future when the central legislature thinks of passing a legislation unnecessarily, undue advantage may not be taken by it on the ground that this item has been placed on this list; and the criticism of an Honourable Member with regard to the speech of Mr. Hussain Imam is not correct; as I have stated, he only sounded a note of warning. And it is also not (p.351) correct to say that there is a provision of Habeas Corpus and that it will save the people from unnecessary and illegal harassment. If legislation of the sort of the 1818 Regulation was passed, Habeas Corpus would have no place at all. Therefore we cannot seek any comfort from the provision of Habeas Corpus. While I submit that a state must be armed with powers to detain persons in certain circumstances like war or grave menace to tranquillity, it is always necessary that provision should be made even in legislation in regard to the fundamental right and liberty of a citizen to be tried by competent courts of law and to be declared guilty or not guilty, if that is possible. Therefore while I am not opposed to the inclusion of this item, I along with Mr. Hussain Imam would sound a note of warning that in future when any legislation is sought to be made in regard to, this item, free Indians should not be deprived of their liberty in free India.
Mr. N. Gopalaswami Ayyangar: … as regards the limitation in respect of matters connected with defence and external affairs, I am not sure if we should limit them to these two particular cases. There are matters which may not be connected with defence or external affairs in connection with which it may be necessary for the Government of the Federation to detain particular individuals. It may be a thing connected with the very existence of the State, but it may not relate to defence or external affairs. It would probably conduce to the disappearance of conditions which may threaten the existence of the State if we had power to control movements of people of that sort for a short while and kept them in detention for the purpose of ensuring that the atmosphere improves until the time arrives for our setting them free. In any case if it is necessary to have preventive detention powers in the case of persons in matters connected with defence and external affairs, there are other matters also in connection with which such power is necessary. Therefore, Sir, on both these grounds I do not think this amendment deserves to be supported by the House.
… Then I will refer to one or two points mentioned by my Honourable friend Mr. Hussain Imam. One of these suggested that preventive detention is something which will go against fundamental rights. Now fundamental rights are going to be enumerated in our constitution; and if we put preventive detention in the federal list, any laws that we make in respect of this item could not conflict with the rights that we shall recognise in the body of the constitution. Therefore, Sir, the legislation (p.352) that we shall have the power to make cannot conflict with fundamental rights as recognised in the Constitution.
The motion “That for item 4, the following be substituted: ‘Preventive detention in a Province for reasons of State connected with defence and external affairs.’ was negatived and the original motion, i.e., “Preventive detention in. the territories of the Federation for reasons of State.” was adopted.
Draft Constitution Prepared by the Constitutional Adviser, October, 194749
List I — Federal Legislative List.
4. Preventive detention in the territories of the Federation for reasons of State.
List II — Provincial Legislative List.
1. Public order (but not including the use of naval, military or air forces in aid of the civil power); the administration of justice; constitution and organization of all courts, except the Supreme Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention.
List III — Concurrent Legislative List.
1. Criminal Law, including all matters included in the Indian Penal Code at the date of commencement of this Constitution, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military and air forces in aid of the civil power.
2. Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of commencement of this Constitution.
3. Removal of prisoners and accused persons from one unit to another unit.
33. Persons subjected to preventive detention under Federal authority. (p.353)
Draft Constitution Prepared by the Drafting Committee, February 21, 194850
List I — Union List.
Preventive detention in the territory of India **for reasons connected with defence, external affairs or the security of India.
**The words ‘reasons connected with defence, external affairs or the security of India’ have been substituted for the words ‘reasons of State’ in this entry to avoid conflict with entry 1 of the State List relating to preventive detention for reasons connected with the maintenance of public order.
List II — State List.
Public order (but not including the use of naval, military or air forces in aid of the civil power); preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention.
List III — Concurrent List.
1. Criminal Law, including all matters included in the Indian Penal Code at the date of commencement of this Constitution, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military and air forces in aid of the civil power.
2. Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of commencement of this Constitution.
3. Removal of prisoners and accused persons from one State to another State.
33. Persons subjected to preventive detention under the authority of the Union.
The consideration of the Draft Constitution, clause by clause, was taken by the Constituent Assembly on November 15, 1948. Considerable progress had been made by the Assembly by June 1949. But, as Dr. Ambedkar pointed out, a number of controversial provisions still remained. It was (p.354) considered necessary to consult the Ministries of Government of India and Provincial Government on several of these matters. It was expected that in this way the Drafting Committee would be in a position to make its final recommendations to the Assembly on all controversial issues.
Suggestions Made by the Ministries of the Government of India for Amendment of the Seventh Schedule, June 194951
Suggestions made by the Ministry (Home Affairs) for amendment of the Seventh Schedule to the Draft Constitution.
Union List, Entry 3. Preventive detention in the territory of India for reasons connected with defence, external affairs or the security of India.
Amendment suggested — In entry 3, substitute a semi-colon for the full stop at the end of the entry and insert the following words thereafter: “persons subjected to such detention.”
State List, Entry 1. Public order (but not including the use of naval, military or air forces in aid of the civil power); preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention.
Amendment suggested — In entry 1, the following words be deleted: “preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention”.
Concurrent List, Entry 2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the date of commencement of this Constitution.
Amendment suggested — After entry 2, the following new entry be added: “2-A. Preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention.”
Concurrent List, Entry 3. Removal of prisoners and accused persons from one State to another State.
Amendment suggested — For entry 3, the following be substituted: “3. Removal from one State to another State of prisoners, accused persons and persons subjected to preventive detention for reasons connected with the maintenance of public order.
Concurrent List, Entry 33. Persons subjected to preventive detention under the authority of the Union.
Amendment suggested — Delete. (p.355)
Conference of the Drafting Committee with Premiers of Provinces and Indian States and Central Government Representative — July 23, 194952
The Drafting Committee met the Premiers of the Provinces and of certain Indian States and also certain Ministers of the Government of India on July 23, 1949. The amendments proposed by the Ministry of Home Affairs in the Seventh Schedule were one of the issues taken up for consideration. The results of the discussions are as stated below:
Entry 3: The amendment suggested in this entry by the Ministry of Home Affairs was accepted.
Entry 1: The proposal of the Ministry of Home Affairs to transfer the item “preventive detention for reasons connected with the maintenance of public order: persons subjected to such detention” to the Concurrent List was agreed to but it was suggested by the Premier of the United Provinces that the new entry to be inserted in the Concurrent List should read as follows:
Preventive detention for reasons connected with the stability of the Government established by law and maintenance of public order and services or supplies essential to the life of the community; persons subjected to such detention.
New entry 2-A: The insertion on of this new entry was agreed to subject to the modification suggested by the Premier of the United Provinces referred to above.
Entry 3: The new entry proposed for substitution for this entry was also agreed to.
Entry 33: The omission of this entry which was consequential was also agreed to.
Constitution Assembly Debates 29th August, 194953
The Honourable Dr. B.R. Ambedkar: Sir, I beg to move-:
′That for entry 3 of List I, the following entry be substituted:-
′3. Preventive detention in the territory of India for reasons connected with defence, foreign affairs, or the security of India; persons subjected to such detention.’ (p.356)
Comparing this entry with the original entry in the Draft Constitution, it will be noticed that there are only two changes: for the words ‘external affairs’ we have now used the words ‘foreign affairs’. “Persons subjected to such detention” is an addition; this did not exist in entry 3 as it stands ….
Dr. P.S. Deshmukh: … I move:
“That after the word reasons the words ‘of State’ be added to the item as has been re-drafted.”
My first argument in favour of this amendment is that wherever you have such powers in the Government of India Act the reasons are always mentioned as reasons of State. If my friends were to retort and say that reasons connected with defence and external affairs are by themselves sufficient, I would plead that it is not so. All reasons on the strength of which we are going to give this power of preventive detention must have reference to the interests of the State as such, and therefore I hope the learned Doctor will accept this amendment. It is a small amendment but highly important. In the Government of India Act also we have these words “for reasons of State”. Otherwise, any reason which may have the remotest connection with external affairs would also be a reason for preventive detention which would really be a bad thing in principle. The power which the British Government in India was not prepared to take in its hands by the Government of India Act we would be giving to the Union, which is absolutely unnecessary if not dangerous also. Preventive detention is being already resorted to in such a widespread manner that I think we ought to be cautious and not omit the words of State which are of vital importance so far as this item is concerned. This is an amendment of substance and I hope this will be accepted.
Prof. Shibban Lal Saksena: Sir, I want to oppose the amendment of Dr. Ambedkar. This is a very important entry in this list. I have throughout held and protested against the powers of the Executive to detain persons without trial and I opposed those provisions which enable the President to pass Ordinances and in consistency with my view I have come here to oppose this entry also. I do not think we should disfigure our Constitution by such denial of personal liberty. If we have any suspicion against anybody then we must give him a chance to rebut the evidence against him in a proper trial. I, therefore, think that this entry continues the same line that the British took to take away the (p.357) civil liberties of the people. I know there may be cases where it might be necessary to detain some persons, and probably it might be in the interest of the State also to do that, but what I am afraid of is that this power may be abused more than used in the interest of the country.
On balance I think it is better to take the risk of allowing personal liberty to the fullest extent than to feter it by this provision. When we are framing a Constitution for free India, we must not disfigure it with this entry. Uptill now if a person is interned in Assam the practice is that his relatives can go and see him; but once this power comes under the Centre, then that man could be transferred to Bombay or Coorg and thus his relatives will not be able even to see him. Therefore Dr. Ambedkar’s amendment to the original entry makes it worse for then it will be possible that those persons who are detained shall be liable to be removed from their normal place of residence and removed to places which may be extremely difficult of approach by his relatives and friends. I therefore think this addition makes the article worse. I am totally opposed to the entry.
The Honourable Dr. B.R. Ambedkar: … Now, with regard to the question put to me by my Friend Dr. Deshmukh, he wants that the words “for reasons connected with the State” should be substituted54. In my judgment, that would be a limiting entry; and ours is a much better one as it specifies the subject-matter in connection with which the preventive detention may be ordered.
Dr. Deshmukh’s amendment was negatived. The entry, as amended by the Drafting Committee and moved by Dr. Ambedkar, was adopted. Entry 3 was added to the Union List.
Constitution Assembly Debates 2nd September, 194955
The Honourable Dr. B.R. Ambedkar: Sir, I move:
“That after entry 2 of List III, the following entry be inserted:-
’2A. Preventive detention for reasons connected with stability of the Government established by law and the maintenance of public order and services or supplies essential to the life of the community; persons subjected to such detention.”
Shri H.V. Kamath: Sir, I feel that after the adoption of entry 3 in List I, we should not provide any more scope of grounds for preventive (p.358) detention as such. I think we have restricted the freedom and liberties of the subject to a very considerable extent in the Constitution, and in item 3 of List I that we have passed a few days ago, it was provided that the legislative power of the Central Union, extended to preventive detention in the territory of India for reasons connected with defence, foreign affairs, or the security of India. I cannot conceive of any other reasonable circumstances where preventive detention could be or ought to be exercised. The power for preventive detention should not be exercised by the State except for reasons connected with defence, foreign affairs or the security of India, and this power has already been vested in the Union Legislature. I do not think it is safe or wise to include it among the concurrent powers, that is to say, with the Union as well as with the States. We should not confer powers with regard to preventive detention for reasons connected with stability of the Government established by law and the maintenance of public order and services or supplies essential to the life of the community. I am not aware of any Constitution in the world which provided in the body of the Constitution either as an article, or as a Schedule to the Constitution such sweeping powers for the units or the Centre. Of course, I am well aware of the powers vested in the Centre in times of emergency. For that we have already made provision in Chapter XI which this House has adopted. The Centre, under entry 3 of List I, has got the powers for preventive detention. Now this is a very dangerous move on the part of the Drafting Committee, and I hope the House will not be a part to this move, to vest further powers in the Centre and in the States for detention, for reasons connected with the stability of the Government. That is a very vague wording, and very mischievous in its connotation and dangerous in its implications, and certainly not in conformity with the spirit of the democratic republic which we profess to build in this Constitution for our country. I feel that if, at all, powers are to be vested in the Centre or in the States, for reasons connected with the stability of Government, say so – call it sedition or what you will, and provide for it as a crime punishable after fair trial. But I do not want such powers as these to be vested in the Centre or in the State to detain a person on the suspicion that he may jeopardise the stability of the Government established by law. You can provide for his arrest and proper trial and conviction; but to detain him merely because the men in power think that the stability (p.359) of the government is in danger would be the worst tyranny that has been exercised in modern times. I feel, Sir, that this is a most serious matter. Such a provision would lead to very serious consequences in the hands of unscrupulous persons. I, therefore, feel that this entry should be deleted from this list.
Constitution Assembly Debates 3rd September, 194956
Mr. Naziruddin Ahmad: Mr. Vice-President, Sir, I would seek your permission to make a verbal change … The wording “security of the State” seems to be more proper and the change is only verbal.
The Honourable Dr. B.R. Ambedkar:l Sir, may I suggest to my Friend that if he is prepared to accept the wording as I suggest now, namely, “connected with the security of the State” instead of the words “connected with stability of the Government established by law” I shall be prepared to accept it, because I find that that is exactly the language we have used in amended entry 3 in List I. —We have used he word “security of India” there. If my Friend is satisfied with the wording I have now suggested I shall be prepared to accept it.
The entry as revised by Dr. Ambedkar was moved and adopted. Entry 2-A, as amended, was added to the Concurrent List.
In the course of revision, the Drafting Committee redrafted and renumbered Item no. 3 in the Union List as Item no. 9 and Item no. 2A in the Concurrent List as Item no. 3. They now read as follows:
LIST I — UNION LIST
9. Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.
LIST III - CONCURRENT LIST
3. Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and serices essential to the community; persons subjected to such detention.
Draft Constitution—Third Reading. During the discussions on the motion moved by Dr. Ambedkar for adoption of the Constitution, many members again expressed their apprehensions as to Articles 21 and 22. Following are excerpts from Constituent Assembly Debates: (p.360)
Prof. K.T. Shah: … Sir, it is a great pity, that even such a simple right as the right to personal freedom has been made, under the Emergency provisions,— wholly illusory. Excuses can also be found for seeking to detain a person without trial for three months. It is therefore, not a right to personal freedom, so much as it is a right to remain under detention without trial, without any proper judicial proceedings for a period of three months.
There may be plenty of excuses. But I hold that those excuses are obstacles to overcome, and not reasons to take shelter under and deny or circumvent or restrict the Fundamental Rights as you call them, or the Civil Liberties of the people. There is in my opinion no Chapter more painful to read, no Chapter more disappointing in this Constitution, than that dealing with the Fundamental Rights and the Civil Liberties of the people.
And, corresponding to that naturally there is no suggestion at all about enunciating any set of Obligations or Duties which might make the people also realise that there is in consideration of the rights they enjoy also certain obligations of democratic citizenship that the citizens can learn to appreciate. You are not giving those rights in full because you have fears of democracy becoming mobocracy. You have, therefore, restricted the Chapter on obligations of the citizens.57
H.V. Kamath: … Again we and the emergency provisions and article 22 — I do not know how the latter found a place in the Fundamental Rights, — the right of a person to be detained without trial for three months or more. These provisions water down the principle embodied in the Preamble regarding individual liberty. They have fettered individual liberty. Let me make it clear that I am not a champion of absolute individual liberty. I want individual liberty only in so far as it does not jeopardise the security of the State. With that end in view I moved several amendments. They were not accepted.58
Shri T. Prakasam:… I come to another point regarding the provision on freedom of person that we have adopted. We made a provision after such consideration and discussion that for three months a person could be detained without trial. It shocked me and it shocks me now that we should have made such a provision. We cannot justify our position in the face of the world. It is strange that we who had been trained and disciplined for over thirty years by one person, the great leader who had given peace not only to this country but also to the rest of the world, should make such a (p.361) provision. Why should it be, Sir, that for three months a person could be detained without trial? I am sorry that we have adopted it.59
Prof. Shibban Lal Saksena: … But liberty has been a casualty in our Constitution. I think Sections 21 and 22 [sic]60 are the darkest blot on this Constitution. I could never have conceived that in the Constitution of free India, detention without trial will be permitted under the fundamental rights of the people. Having been convicted to total penal servitude for some 31 years in six trials on six different occasions during the Freedom struggle and having passed 10 years of my young life in prison dungeons and condemned cells in the days of our slavery under the British rule, both as a detenue and as a convict, I know the tortures which detention without trial means and I can never reconcile myself to it. An equally great blot on the Constitution are sections 358 and 359 [sic]61 which provide for the suspension of the Fundamental Rights and the methods of their enforcement during an emergency. This is, I think, a mockery of fundamental Rights.62
Mr. Mahboob Ali Baig Sahib: … Now, let us examine the causes that led us to shape the Constitution as it is before us. There are three causes according to me. The first is, most of us including those on the Drafting Committee were brought up and nurtured in an atmosphere of British Imperialism and this British Imperialism in its last stages became repressive, especially when the freedom movement began and in the name of safety and stability of the State, deprived the subjects of their civic rights and their personal liberties. Although most of the persons who suffered protested vehemently against this rule of repression when they were called upon to frame their own Constitution after they attained freedom, they could not shake off that frame of mind which was engendered by notions of stability and security of State inculcated by the British Imperialism.
The second reason, Sir, is this, that it is very unfortunate that when this Constitution was before the Drafting Committee, and subsequently before the Congress Members of this Assembly, and also finally before this Assembly itself, conditions in the country were far from peaceful. And the third reason is that one political party became the successor of the British imperialism and has been enjoying power. I am, therefore, led to believe that these three factors were responsible for the fashioning of this Constitution which is before us, and which, according to me, is very, very disappointing, conservative and reactionary. To illustrate my (p.362) point and to substantiate it, I would invite the attention of this August House through you, Sir, to the contrast between the decisions which this Assembly had taken in the year 1947, and also those that have emerged now after the consideration stage.
Sir, memories of the repression were very green in our minds in the year 1947. The disturbances in the country were not in great evidence at that time, and the political party which is now enjoying power, was not in exclusive authority at that time. Therefore it was, Sir, when the Modern constitution was placed before us, it was the Honourable Sardar Patel who moved that those provisos curtailing civil liberties should be deleted, and it was he who again moved that as far as personal liberties are concerned, they should be decided by a judicial inquiry. And as far as provinces are concerned, autonomy was contemplated. With power vested in one political party, and the memories of repression fast fading away, and also with disturbances in the country raising their ugly head, the whole face changed, and changed for the worse. Civil liberties have been curtailed. Personal liberties have been hedged in, and centralisation of power has been increased. It is claimed by some that there is justification for curtailment of the civil liberties, in view of the conditions prevailing in the country.
I submit, Sir, that we have to consider two points in this connection. The first point is whether we are making this Constitution for all time to come and for normal times, or whether it is for meeting the exigencies of the present day. That is the first question. And the second question is: what are the safeguards which you give to the individual in the Constitution, which is modelled on what is called Parliamentary democracy, that is, government by a political party. These are the two questions to be considered and we must ponder over them. As far as the first question is concerned, my humble submission is there is ample provision in part XVIII which deals with emergency powers, there is also one article No. 358, I suppose which gives power to the State to suspend the rights which are given under article 19. What more do you want? Why are you disfiguring this Constitution by curtailing Fundamental Rights, curtailing civil liberties, in view of the present circumstances? There is no justification at all for that. You have got the emergency powers. The Centre has got power, the President has got powers, and the State has the power, whenever an emergency is declared, to take away the rights. So my point is that there is no real justification for doing this. (p.363)
The second point is, what about the safeguards for the citizens in a Constitution which is going to be what is called Parliamentary democracy. Two provisions are absolutely necessary in such a Constitution. One is that the Fundamental Rights must be real and these Fundamental Rights must not be subjected to the jurisdiction of the Legislature, which under such a parliamentary democracy, is bound to be a partisan government. So these Fundamental Rights must be taken out of the jurisdiction of the Legislature. That is the first requirement. The second requisite is that these rights must be enforceable at the instance of the aggrieved citizen, by a court of law. These are the two tests of a good Constitution, and let us see whether the Constitution satisfies these two tests. I am afraid, our Constitution falls too short of these two requirements. With all the goodwill of Dr. Ambedkar and also with the commendable championship of friends like Mr. Bhargava and Mr. Jaswant Roy Kapoor and others, they were not able to persuade the House or the drafting Committee to place these Fundamental Rights out of the reach, out of the jurisdiction of the Legislature which necessarily is bound to be a party legislature. Even today after so much of so-called improvement in article 22, the State Legislature can still detain a man, without trial for three months, and Parliament can detain him for any period it may decide. That is the position as far as the Fundamental Rights are concerned.
… May I again invite the attention of this House to the first article in the Emergency Chapter 18? There you have made provision to meet conditions of war, outside aggression and internal disturbance. The whole chapter is there. You can utilize it in the case of a real emergency. There is danger if Fundamental right themselves are curtailed. In the hands of an unscrupulous executive, articles 22 and 19 will be taken advantage of to oppress the persons. That is what this Constitution has laid down. For some reason or another, the persons who were responsible for drafting this Constitution have taken it into their heads to urge their points of view, making emergency more important than normal conditions. It is said that the price of democracy is vigilance. I hope the people will be vigilant enough to change the Constitution, and if necessary, change the Government which would, taking advantage of these provisions of this Constitution, rule in an arbitrary way. I hope India will rise to the level of self-consciousness and enthrone democratic principles and individual rights and instal a Government which will uphold the rights of individuals as well.63 (p.364)
Pandit Hirday Nath Kunzru: … Sir, there are many points of view from which we can look at the Constitution but I think that the more distinctive features of the Constitution are those that relate to individual liberty and the relations that will prevail in future between the Centre and the component units. The main article dealing with the first point is article 22. I recognise that that article places certain restrictions on the power of the provincial Governments and the Central Government that did not exist before. For instance, under the Public Safety Acts, many provincial governments had accepted the responsibility of supplying information to the detenus with regard to the charges on which they had been detained only if they were asked for it. Again, it has been found in several cases that there was undue delay in supplying the information. Another defective feature of the provincial Public Safety Acts was that they did not provide for the reference of the cases of detenus to an Advisory Board, so that even if no judicial examination of the charges was possible the public might feel that some impartial body had considered the charges and judged whether the detention was justifiable or not. Under article 22 the case of every detenu will go before an Advisory Board composed of persons who have been judges of a High Court or are qualified to be appointed as Judges. Again Sir, the government concerned will be under an obligation to inform the detenus as soon as possible of the grounds for their arrest and detention. It is further provided that no man unless he has been detained in accordance with the law passed by Parliament shall be kept in detention for a longer period than that prescribed by Parliament by law. Article 22, therefore, removes some of the defects that existed formerly. Nevertheless sour experience of the existing restrictive laws shows that scope is so narrow that it cannot deal with some of the difficulties that have arisen in various provinces.
Sir, although the Public Safety Acts have given full power to the Provincial Governments to detain persons who in their opinion have committed or are about to commit acts prejudicial to the public safety, nevertheless the High Courts had intervened in some cases and ordered the release of detenus on the ground that the charges against them were vague, indefinite or incomplete and did not contain sufficient information to enable them to make the representations contemplated by the Acts. Some of the Governments following the lead of the Central Provinces Government amended their laws so as (p.365) to prevent the High Courts from releasing anybody on these grounds. The Madras Government has recently amended its law in this sense and the Minister of law stated in the Madras Assembly that the change had been introduced at the instance of the Government of India. Dr. Ambedkar has placed before us an article that would impose restrictions on the powers of the Provincial Governments, but his Government, possibly his own Ministry, has advised the Provincial Governments to choose an indirect way of ousting the jurisdiction of the High Courts.
Another illustration will also show how narrow the scope of article 22 is. In a case that came before the Central provinces High Court a few months ago the High Court found that the charges were groundless. The facts and the evidence placed before it by the detenus concerned showed that there was no ground for the apprehension entertained by the Provincial Government and that the facts mentioned by it and the grounds for arrest communicated by it to the detenus had no basis in fact. I suppose that the Central Provinces Government communicated definite charges to the detenus because it feared that the High Court might otherwise hold that the detention was not justified, but article 22, as placed before us and as passed by the Assembly, would afford scarcely any relief in such a case. Neither the Central Government nor the Provincial Governments would be under an obligation to communicate definite charges to the detenus and consequently the High Courts would be unable to exercise even the little supervision that they have so far been able to do.
Sir, there is one other feature of the Constitution……
Shri T.T. Krishnamachari: May I point out to my honourable Friend that clause (1) of article 22 might probably cover the case he has in mind ?
Pandit Hirday Nath Kunzru: Clause (1) of article 22 does not relate to cases of persons who are detained under any preventive law. I am speaking of persons arrested under the Public Safety Acts and not of people arrested under the ordinary law. I do not, therefore, think that clause (1) of article 22 will apply to the cases of persons to whom I have been referring.
Sir, there is one other feature of the Constitution that I should like to refer to in this connection. The administration of a law is a matter of no less importance than its provisions. It is necessary, therefore, that the position of the judiciary should be strengthened and that every step (p.366) should be taken to devise a machinery that would ensure that impartial justice was meted out to everybody, but I fear that the constitution will not promote what is necessary for this purpose, viz., the separation of the Judiciary from the Executive. The form in which the recommendation on this subject was placed before us required that this reform should be carried out in three years, but the reference to this period was deleted when the recommendation was discussed by the House. Consequently the recommendation is only of a general character now. I know that in Madras at least the scheme for the separation of Judiciary from the Executive has been put into effect in one or two districts and that in one or two other provinces schemes for carrying out this purpose are under consideration. But, the Constitution as it is, does not enable us to exercise any pressure on the provincial Governments to effect this reform as speedily as possible.64
Giani Gurmukh Singh Musafir: … There is yet another point. In article 22, clause (3), sub-clause (b), which relates to Fundamental Rights, system of detention has been retained. To my mind, in the Constitution of free India as has been pointed out by Pandit Hirday Nath Kunzru — the system of detention should not be retained. We want to inspire the people with confidence. We want them to feel that the Constitution of free India is quite different. But such steps shall not inspire them with the beliefs that now situation is altered. They shall not believe that they are free and that a Constitution of free India is being framed. To my mind none should be detained unless he has been tried in a court of law.65
Shri Alladi Krishnaswami Ayyar: … In the chapter on Fundamental Rights, there is one other matter which requires more than a passing notice. Clause (4) of article 22 has been animadverted upon as if it were a charter to the Executive to detain a person for three months. There is no such thing. The whole of article 22 is designed to secure against any abuse of the provisions of article 21 which says in general terms that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. If article 21 stood by itself, it may authorise an indefinite detention if only it conforms to the procedure established by law. Article 22 has been put in to prevent any such indefinite detention. The Constituent Assembly which was quite alive to the dangers confronting the new State could not rule out detention altogether.66 (p.367)
Shri Kamlapati Tiwari: … It appears that the Constitution has been framed only to meet the exigencies of the times. We were influenced by the conditions obtaining in the country and were obsessed by the fear that some people might spread anarchy and emergency may arise at anytime and our freedom might be endangered. We were all along influenced by this thought and we framed our Constitution accordingly. No doubt we are confronted with this situation in the present transitional period. When an old order crashed, when an established system collapses it sends vibrations and quivers even into the earth. It is but natural that at such a time of political earthquake fear and anxiety should grip the minds of men. Before our eyes has collapsed a great and mighty empire. It is not surprising. Sir, that there should be at such a time fear and anxiety in our hearts, but I do deeply regret that there should have been reflected in the provisions of our Constitution.
My other regret is, Sir, that we have drawn inspiration mainly from foreign Constitutions alone. … But, Sir, we have not cared to cast even a glance to the historic spirit and culture of India nor have we taken into consideration the Indian approach to life. While passing this Constitution we did not in the least pay attention to the political philosophy and situation of this ancient country … We have committed Sir, a fundamental error in keeping this Constitution quite unrelated to the historic culture, traditions, the national genious, the national sentiments and self of our country. I would urge you to remember that this cultural divorce between the Constitution and the country has not only made entirely alien but also lifeless in character.
The third basic shortcoming of this Constituion is the limitations and restrictions it imposes on Fundamental rights, … It is no doubt true that the reins of power are today in the hands of leaders whose life has been passed in the service of the country. None need entertain any fears about their acting improperly. But it may well be that this power may fall into the hands of people who misuse it. That is the danger.67
Shrimati Purnima Banerji: … Sir, article 21 guarantees personal liberty and article 22 provides for preventive detention. In article 21, I would have like to include the safety of the person, his dwelling and his personal property from being searched or confiscated, because the powers of search and detention by Governments have played a disastrous part in our history, and we would not like these powers to hamper the growth of healthy political movements in future.68 (p.368)
Shri O.V. Alagesan: … Sir, another charge is that this Constitution is full of checks and safeguards, and it curtails freedom of the individual and restricts State autonomy. I do not take it in that light. These safeguards are there only as fences intended to protect the infant freedom and democracy from stray cattle. A tiger cannot say, for instance, that it should be free to kill the lambs and take them away. This is my reply when the cry that civil liberty is in danger is raised and all these provisions are thrown in our face. Though for me and for many others who have known what detention is, the article relating to preventive detention is a bitter pill to swallow, we may expect that that weapon will be very sparingly used and there will be no necessity to use it, unless under very grave emergency, when the stability of the entire society is threatened by subversive elements.69
Shri Ram Chandra Gupta: … Article 21 of the Constitution relating to protection of life and personal liberty of an individual is a clause which has attracted the attention of a large section of the public, specially lawyers and judges. Their contention is that the clause, as enacted, will not safeguard the rights of the individual sufficiently. Their fear is unjustified because no Government in the country can pass any legislation and then enforce it in a wanton or irresponsible manner. Sanction of the legislature is essential under the clause. There is no doubt the clause is wide enough to confer very wide powers on the legislatures of the country and I am sure that a resort to such extraordinary powers would be had only when the exigencies of the time would require them.70
Shri T.T. Krishnamachari: … I do want the House to understand that there are two conflicting moods in the minds of the people while approaching the fundamental rights: those that feel that the fundamental rights have gone too far, and those that feel that the fundamental rights have not gone far enough. Let me take up the position of my honourable Friends Pandit Kunzru and Pandit Thakur Das Bhargava whose objections to articles 19, 21 and 22 and even to some other ones, were that there has been a subtraction of the rights conceded to the individual. Well, I must say that on pure merits, and in the light of what is happening now about us and what has happened in the past my sympathies are entirely with them. All of us who came into politics as a result of a desire for freedom and dislike of the British rule, have done so because we were attracted by libertarian traditions attached to the (p.369) rights of the individual. We wanted those rights to be safeguarded at a time when a foreign ruler was ruling over us. But today, if there is to be any subtraction of those rights, it would be effected by Parliament and by the legislatures of the States; in fact, Parliament will have the ultimate say, because most of the subjects which cover personal liberty are in the Concurrent List and Parliamentary enactments will predominate. If objection is taken to Parliament passing any act, it means that there is a certain amount of lack of confidence in the Parliament which would be elected on adult suffrage. It might appear to be an ingenious argument; but that is a grim fact. My honourable Friends might choose between the two. Yes; what we have done is merely to state the proposition, and we have stated that if Parliament so wills, it can subtract from the propositions (a), (b), (c), (d) and (e) (of Article 19), the rights conferred to the extent stated. If Parliament does not want it, it need not, and the fundamental rights stated will be there without any diminution therefrom. Any subtraction can only be done by a positive Act by Parliament enacting laws in regard to every particular right. That is the point I want honourable Members to understand. I also want those people who criticise the Constitution on the basis that the fundamental rights conceded are worthless because they have been subtracted from to understand the point that the subtraction can only be affected by Parliament, and if they have any confidence in Parliament, Parliament will not do it unless it is absolutely necessary. I agree that the present circumstances colour our vision, make us look at them in a way which distorts the picture. I have not been in charge of law and order in any province; I have not been in power; so it is fairly easy for me to sympathise with my friends who feel that notwithstanding the fact that the British have gone, the hangover is still there both ways. It affects us citizens who criticise the Government. It affects those in Government because they have imbibed the traditions of our former rulers. I do not for one moment question the validity of the objections raised by my honourable Friend Pandit Thakur Das Bhargava or Pandit Kunzru on the ground that at the present moment there has been a certain amount of what appears to be miss-use [sic]71 of authority or rather extra use of authority. But I do not think that is a matter which would exist for all times. At any rate if the Parliament of the future is not going to safeguard the liberty of the individual, I do not think that anything we put in this Constitution can possibly safeguard it. Therefore any (p.370) insistence on putting into the Constitution Fundamental Rights, completely unabridged and in a manner that was done somewhere about 160 years back by a country which had different ideals and different hopes is, I think, an argument which is besides the point and out of place altogether.72
Mr. President (The Honourable Dr. Rajendra Prasad): … I do not propose to deal with the criticism which relate mostly to the articles in the part dealing with Fundamental Rights by which absolute rights are curtailed and the articles dealing with Emergency Powers. Other Members have dealt with these objections at great length. All that I need state at this stage is that the present conditions of the country and tendencies which are apparent have necessitated these provisions which are also based on the experience of other countries which have had to enforce them through judicial decisions, even when they were not provided for in the Constitution.73
The motion moved by Dr. Ambedkar for passing of the Constitution as settled by the Assembly was then put to vote and was adopted.
(*) The author gratefully acknowledges the permission granted by the Indian Institute of Public Administration, New Delhi to include extracts from B. Shiva Rao (1967 and 1968)The Framing of India’s Constitution—A Study, Delhi: IIPA.
(6.) Extract from Constituent Assembly Debates, Vol. III, p. 468.
(7.) Extract from The Framing of India’s Constitution—Select Documents, Vol. III, B.Shiva Rao, p. 9.
(11.) Excerpts from Constituent Assembly Debates,Vol. VII, pp. 842–857.
(15.) “That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to (p.371) Death, without being brought in Answer by due Process of the Law.” Liberty of Subject (1354) CHAPTER 3 28 Edw III. http://www.legislation.gov.uk/aep/Edw3/28/3
(16.) Amendment which seeks to substitute the words “without due process of law” for the words “except according to procedure established by law”.
(18.) Excerpts from Constituent Assembly Debates, Vol. VII, pp. 999–1001.
(19.) The Framing of India’s Constitution—A Study, B. Shiva Rao, p. 246.
(20.) Excerpts from Constituent Assembly Debates, Vol. IX, pp.1498–1541.
(21.) Amendment moved by Thakur Singh Bhargava in this regard: Such detention shall not be longer than two months unless an independent tribunal consisting of two or more persons being High Court judges or possessing qualifications for High Court judgeships and armed with powers of enquiry including examination of the detainee recommend continuance of detention within the said period of two months.
(22.) Amendment moved by Thakur Singh Bhargava in this regard: Such detention shall not exceed the total period of one year.
(23.) Italics supplied. Was Shri H.V.Kamath referring to cases under CrPC which provide for detention as a preventive measure?
(24.) Article XXXI.
(25.) Article XXXII.
(26.) Italics supplied. It is to be noted that the thrust of the arguments of other members was not that the two principles were added but that other principles, equally important, were not incorporated.
(27.) As laid down in Art. 15A (now Art. 22).
(28.) Excerpts from Constituent Assembly Debates, Vol. IX, pp. 1543–1572.
(29.) Italics supplied.
(30.) Clause 4.
(31.) Italics supplied.
(33.) The Framing of India’s Constitution—A Study, B. Shiva Rao, p. 246.
(34.) The Framing of India’s Constitution—Select Documents, Vol. IV, B. Shiva Rao, p. 757.
(35.) Excerpts from Constituent Assembly Debates, Vol. XI, pp. 531–6.
(36.) Amendments were moved on behalf of the Drafting Committee.
(37.) Italics supplied.
(39.) Excerpts from Constituent Assembly Debates, Vol. XI, pp. 575–6.
(42.) Italics supplied.
(43.) From The Framing of India’s Constitution—A Study, B. Shiva Rao, pp. 604–5.
(47.) The Framing of India’s Constitution—Select Documents, Vol. II, B. Shiva Rao, p. 785.
(48.) Excerpts from Constituent Assembly Debates, Vol. V, pp. 112–8.
(49.) The Framing of India’s Constitution—Select Documents, Vol. III, B. Shiva Rao, pp. 174–182.
(53.) Excerpts from Constituent Assembly Debates, Vol. IX, pp. 727–30.
(54.) Italics supplied. It is to be noted that Dr. Deshmukh did not ask for a substitution but suggested addition of the words ‘reasons of State’ and it definitely would have been more effective in delimiting the powers of the State.
(55.) Excerpts from Constituent Assembly Debates, Vol. IX, pp. 926–7.
(57.) Constituent Assembly Debates, Vol. XI, p. 620.
(60.) Articles 21 and 22.
(61.) Articles 358 and 359.
(62.) See note 54 above, pp. 705–6.
(72.) See note 54 above, pp. 958–9).