1

Due Process, Rule of Law and District Judiciary

Constituent Assembly Debate on Article 15-A

[Article 22 in the Constitution of India]

15th

– 16th

September 1949

Introduction1

The extensive discussion in the Constituent Assembly2

while framing Article 22 of the

Constitution of India [referred in the Constituent Assembly as Article 15-A] dealing with the procedures

to be followed in the matter of arrest and detention shows the concerns of the assembly members in

balancing societal interest and the rights of arrested or detained person.

The chairman of the Drafting Committee, Dr. B.R. Ambedkar proposed Article 15-A [Article 22

in the present Constitution of India] as a safeguard against the arbitrary exercise of state power. Dr.

Ambedkar expressed dissatisfaction on Article 15 [Article 21 in the present Constitution of India] as it

does not subject laws to any conditions or limitations because of the exclusion of the word “due process

of law” from its language. Article 15-A was taken from the Code of Criminal Procedure and inserted into

the Constitution in order to put limitation on the authority of legislature and executive to not to violate the

fundamental right to personal liberty in the matter of arrest and detention while exercising their powers.

Dr. Ambedkar said thus:

“Article 15A merely lifts from the provisions of the Criminal Procedure Code two of the

most fundamental principles which every civilised country follows as principles of international justice.

It is quite true that these two provisions contained in clause (1) and clause (2) are already to be found

in the Criminal Procedure Code and therefore probably it might be said that we are really not making

any very fundamental change. But we are, as I contend, making a fundamental change because what

we are doing by the introduction of article 15A is to put a limitation upon the authority both of

Parliament as well as of the Provincial Legislature not to abrogate these two provisions, because they

are now introduced in our Constitution itself.”3

Commenting on the importance of this provision as introducing due process requirements, Dr.

Ambedkar said thus:

“I think, on the whole, those who are fighting for the protection of individual ought to

congratulate themselves that it has been found possible to introduce this clause which, although it may

1 By Mr. Rajesh Suman, Assistant Professor, National Judicial Academy.

2 Volume IX [30

th July to 18

th September, 1949]- Constituent Assembly Debates-Official Report; Reprinted by Lok

Sabha Secretariat, New Delhi, 4th

Reprint-2003, page 1498 to 1572 3 Supra note 2, P. 1499

2

not satisfy those who- hold absolute, views in this matter, certainly saves a great deal which had been

lost by the non-introduction of the words 'due process of law. Sir, I commend this article to the House.4

The debates consistently reflect the apprehensions of the assembly members regarding arbitrary

exercise of the power by executive and legislature. The members were quite skeptic on the credentials of

executives in the matter of arrest and detentions and wanted proper safeguards to put a check on the

arbitrary exercise of police power. Especially on the part on detention in this Article, there was grave

dissatisfaction among the members who had the experience of detention during British Regime in India.

The members consistently claimed that the provision on detention denies the guarantee of fair trial to the

accused.

One of the members referred to the various articles of the Charter of the Human Rights which

were then being considered by the United Nations Assembly and criticized the provisions for detentions

for not having adequate safeguards in Article 15-A [see page 1536-1537 of the Constituent Assembly

Debates (CAD)]. Mr. Alladi Krishnaswami Ayyar however expressed the concerns for the state security

and said:

“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.” 5

Most of the members of constituent Assembly proposed various amendments in this provision as

in their view the proper safeguards including the guarantees of fair trial in the matter of detention has not

been specifically provided in the this Article. However the Drafting Committee consistently expressed the

concerns for the security of the state and society and therefore most of the amendments proposed by the

members of the Constituent Assembly were rejected after giving due reasons. On the whole one could see

a consistent aspiration of the members of the Constituent Assembly in reconciling societal interest and

rights of the accused. The debates clearly demonstrate the interconnectedness of the criminal procedures

and constitutional principles and the powers of magistrates in keeping a check on the arbitrary exercise of

executive powers.

4 Id. , P. 1500

5 Supra note 2, P. 1538

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Constituent Assembly Debate on Article 15-A

[Article 22 in the Constitution of India]

15th

– 16th

September 1949 -------------------------------------------------------------------------------------------------------------------------------

CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS) - VOLUME IX

New Article 15-A

Mr. President: Then we go back to New Article 15 A.

The Honourable Dr. B. R. Ambedkar : Sir, I move:

"That after article 15, the following article be inserted:-

Protection against certain

arrests and detentions.

'15A. (1) 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'."

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Sir, the House will recall that when at a previous session of this Assembly we were discussing article

15, there was a great deal of controversy on the issue as to whether the words should be "except according

to procedure established by law", or whether the words "due process" should be there in place of the

words which now find a place in article 15. It was ultimately accepted that instead of the words "due

process", the words should be "according to procedure established by law". I know that a large part of the

House including myself were greatly dissatisfied with the wording of article 15. It will also be recalled

that there is no part of our Draft Constitution which has been so violently criticised by the public outside

as article 15 because all that article 15 does is this, it only prevents the executive from making an arrest.

All that is necessary is to have a law and the law need not be subject to any conditions or limitations. In

other words, it was felt that while this matter was being included in the Chapter dealing with Fundamental

Rights, we were giving a carte blanche to Parliament to make and provide for the arrest of any person

under any circumstances as Parliament may think fit. We are therefore now, by introducing article 15A,

making, if I may say so, compensation for what was done then in passing article 15. In other words, we

are providing for the substance of the law of "due process" by the introduction of article 15A.

Article 15A merely lifts from the provisions of the Criminal Procedure Code two of the most

fundamental principles which every civilised country follows as principles of international justice. It is

quite true that these two provisions contained in. clause (1) and clause (2) are already to be found in the

Criminal Procedure Code and therefore probably it might be said that we are really not making any very

fundamental change. But we are, as I contend, making a fundamental change because what we are doing

by the introduction of article 15A is to put a limitation upon the authority both of Parliament as well as of

the Provincial Legislature not to abrogate these two provisions, because they are now introduced in our

Constitution itself.

It is quite true that the enthusiasts for personal liberty are probably not content with the provisions of

clauses (1) and (2). They probably want something more by way of further safeguards against the inroads

of the executive and the legislature upon the personal liberty of the citizen. I personally think that while

I sympathisewith them that probably this article might have been expanded to include some further

safeguards. I am quite satisfied that the provisions contained are sufficient against illegal or arbitrary

arrests.

As Members will see, the provisions contained in clauses (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 enemy alien. I do not

think that there could de any further objection to the reservation made in clause (3) (a) in respect of an

enemy alien.

With regard to sub-clause (b) of clause (3) I think it has to be recognised that in the present

circumstances of the country, it may be necessary for the executive to detain a person who is tampering

either with public order as mentioned in the Concurrent List or with the Defence Services of the country.

In such a case I do not think that the exigency of the liberty of the individual should be placed above the

interests of the State. It is on that basis that sub-clause (b) has been included within the provisions of

clause (3).

There again, those who believe in the absolute personal liberty of the individual will recognise that this

power of preventive detention has been helped in by two limitations : one is that the Government shall

have power to detain a person in custody under the provisions of clause (3) only for three months. If they

want to detain him beyond three months they must be in possession of a report made by an advisory board

which will examine the papers submitted by the executive and will probably also give an opportunity to

the accused to represent his case and come to the conclusion that the detention is justifiable. It is only

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under that that the executive will be able to detain him for more than three months Secondly, detention

may be extended beyond three months if Parliament makes a general law laying down in what class of

cases the detention may exceed three months and state the period of such detention.

I think, on the whole, those who are fighting for the protection of individual freedom ought to

congratulate themselves that it has been found possible to introduce this clause which, although it may not

satisfy those who hold absolute views in this matter, certainly saves a great deal which had been lost by

the non-introduction of the words 'due process of law'. Sir, I commend this article to the House.

Pandit Thakur Das Bhargava: Sir, if you permit me I shall simply read out the numbers of my

amendments and they may be treated as moved in the House. This will save time.

Mr. President : Yes, as the amendments are lengthy ones they may be treated as read out in the

House.

Pandit Thakur Das Bhargva : Sir, I request that all my amendments may be taken as moved.

"That after article 15 the following new article be added:-

'15A. No procedure within the meaning of the proceeding section shall be deemed to be established by

law if it is inconsistent with any of the following principles :-

(i) Every arrested person if he has not been released earlier Shall be produced before a Magistrate within

24 hours of his arrest to the Court of the Magistrate and informed of the nature of the accusation for his

arrest and detained further only by the authority of the Magistrate for reasons recorded.

(ii) Every person shall have the right of access to Courts to being defended by counsel in all proceedings

and trials before courts.

(iii) No person shall be subjected to unnecessary restraints or to unreasonable search of person or

property.

(iv) Every accused person is entitled to a speedy and public. trial unless special law or public interests

demand a trial in camera.

(v) Every person shall have the right of cross examining the witness produced against him and producing

hisdefence.

(vi) Every convicted person shall have the right of at least one appeal against his conviction'."

'15 B. No procedure within the meaning of Sec. 15 shall be deemed to be established by law in case of

preventive detention if it is inconsistent with any of the following principles :-

(i) No person shall be detained without trial for a period longer than it is necessary.

(ii) Every case of detention in case it exceeds the period of fifteen days shall be placed within a month of

the date of arrest before an independent tribunal presided over by a judge of the High Court or a person

possessed of qualification for High Court Judgeship armed with powers of summary inquiries including

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examinations of the person detained and of passing orders of further detention conditional or absolute

release and other incidental and necessary orders.

(iii) No such detention shall continue unless it has been confirmed within a period of two months from the

date of arrest by an order of further detention from such tribunal in which case quarterly reviews of such

detentions by independent tribunal armed with powers of passing of orders of release conditional or

otherwise and other necessary and incidental orders shall be made.

(iv) Such detention shall in the total not exceed the period of one year from the date of arrest.

(v) Such detained person shall not be subjected to hard labour or unnecessary restrictions otherwise than

for willful disobedience of lawful orders and violation of jail rules.'"

"That in amendment No. 1 above, for clause (1) and (2) of the proposed new article 15A, the

following be substituted:--

'15A. No procedure shall be deemed to be established by law within the meaning of article 15 if the law

prescribing the procedure for criminal proceedings and trials of accused persons contravenes any of the

following established principles and rights-

(a) the right of production of the person under custody before Magistrate within 24 hours of his arrest

(excluding the reasonable period of journey from the place of arrest to the court of Magistrate) and further

detention only with the authority of the magistrate for reasons recorded;

(b) the right of consultation after arrest and before trial and the right of being defended by the Counsel of

his choice;

(c) the right of full opportunity for cross- examination of witnesses produced against the accused and

production of his defence;

(d) the right of at least one appeal in case of conviction'."

"That in amendment No. 3 above, after clause (d) of the proposed new article 15 A, the following

clauses be added :-

'(e) right to freedom from torture and unnecessary restraints and from unreasonable search of person and

property;

(f) right to a speedy and public trial unless special law and public interest demand a trial in camera'."

"That in amendment No. 1 above, in clause (1) of the proposed new article 15 A, for the words 'a legal

practitioner of his choice' the words 'and be defended by a legal practitioner of his choice in all criminal

proceedings and trials' be substituted."

"That in amendment No. 1 above, in the proposed new article 15A, for clause (2), following

be substituted :-

'(2) Every arrested person if he has not been released earlier shall be produced before a

Magistrate. within24 hours of his arrest excluding the reasonable period of journey from the place of

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arrest to the court of the Magistrate and detained further only by the authority of the Magistrate for

reasons, recorded'."

Or, alternatively

"That in amendment No. 1 above, at the end of clause (2) of the proposed new article 15A, the

following be added :-

'and for reasons recorded'."

"That in amendment No. 1 above, after clause (2) of the proposed new article 15A, the following

clauses be added :

'(2a) Every person accused of any offence or against whom criminal proceedings are being taken shall

have the full opportunity of cross-examining the witnesses produced against him and producing

his defence.

(2b) Every person sentenced to imprisonment shall have the right of at least one appeal against his

conviction'."

"That in amendment No. 1 above, for clauses (3) and (4) of the proposed new article 15A, the

following be substituted :-

'15B. No procedure shall be deemed to be established by law within the meaning of article 15 if the law

prescribing the prevention or detention contravenes any of the following principles'---

(1) Such detention without trial shall only be allowable for alleged Participation in dangerous or

subversive activities affecting the public peace, security of the State and relation between different classes

and communities inhabiting India or membership of any Organisation declared unlawful by the State.

(2) 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.

(3) Such detention shall not exceed the total period of one year.

(4) Such detention shall be free from unnecessary restrictions and hard labour otherwise than

for wilfuldisobedience of lawful orders and violation of jail rules :

Provided that the Parliament shall never be precluded from prescribing other reason and circumstances

which may necessitate such detention and the conditions of such detention'."

"That in amendment No. 1 above. in the proviso to clause (3) of the Proposed new article 15A, for the

word 'three' the word 'two' be substituted."

"That in amendment No. 1 above, in sub-clause (a) of the proviso to clause (3) of the proposed new

article 15A, after the word 'Board' the words 'with powers of inquiry including examination of persons

detained' be inserted."

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"That in amendment No. 1 above, at the end of sub-clause (b) of the proviso to clause (3) of the

proposed new article 15A, the following be added :-

'but in no case more than six months' or 'but in no case more than a year'."

"That in amendment No. 1 above, in clause (4) of the proposed new article 15A, after the word

'circumstances' the words 'and the conditions' be inserted."

"That in amendment No. 1 above, in clause (4) of the proposed new article 15A, for the word 'three

months' the words 'one month' or'two months' be substituted."

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. 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 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 sodemoralised our character that a man in the street....

The Honourable Dr. B. R. Ambedkar: Sir, may I say a word ? I am prepared to accept one of the

amendments of my honourable Friend which says that the accused shall have the right to be defended. I

can add these words in the last line of clause (1) of article 15A. It will run thus : be denied the right to

consult or to be defended by lawyers of his, choice'. I think that will carry out my honourable Friend's

intention.

Pandit Thakur Das Bhargava : In trials as well as in criminal proceedings ?

The Honourable Dr. B. R. Ambedkar: 'Defended' means that. Could we not curtail the debate now ?

Pandit Thakur Das Bhargava: We have already passed an article, No. 24 about Compensations. Is it

the idea that no compensation need be given at all ? If you make acceptance of amendments a price for

my not speaking further, I should be paid full compensation.

So far as the question of compensation is concerned, we wanted that the words 'due process of law'

should be there. I am glad that Dr. Ambedkar, who has been very cautious in this matter, has today

confessed that he is of the same view as many other lawyers in this House. But our misfortunate was that

the greatest obstacle to this 'due process' came from the greatest jurist in this House and it is most

unfortunate to this country that we have not been able to pass this due process' clause. In the long history

of the struggle for liberty which the Congress had to wage with the foreign government, the High Courts

and the Supreme Court many a time held that the laws passed by the bureaucracy were not valid. Now,

this power is being taken away from our Indian courts in the name of liberty. My submission is that the

first casualty in this Constitution is justice. After all what is a fundamental right? A fundamental right is a

limitation of the powers of the executive and the legislature. Whatever fundamental rights we have given

in this Constitution. lately an attempt has been made to take them away. Article 15 is the crown of our

failures because by virtue of article 15 we have given the Executive and the legislature power to do as

they like with the people of this country, so far as procedure is concerned. I cannot describe the state of

mind in which I felt myself when I could not succeed in getting this House to agree to the due process

clause.

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Now, Sir, Dr. Ambedkar says that he has given a compensation for that clause. He has given us these

two clauses (1) and (2). I congratulate him so far as these two clauses are concerned, although I shall have

occasion to quarrel with him over one of these clauses. All the same, I congratulate him on the efforts he

has made in salvaging something out of the lost cause. An the same, I do not know, Sir, which department

of the Government of India or which Minister has got the cheek to oppose the whole nation when it wants

to get into its own.

Now, Dr. Ambedkar says that he is agreeable to accept my amendment that the accused will have the

right of being defended by a lawyer of his choice. I make bold to say that in no country, in

no civilised country is that right not given. This too has been very niggardly given by Dr. Ambedkar. This

Dr. Ambedkar says, is a sort of compensation to the original due process clause. I submit with great pain

that this is in my opinion no concession at all. These two provisions mentioned by him are so elementary

that I may say without any sort of hesitation that these two clauses are of such a nature that

no civilised country, no civilised legislature, can have the heart to say that even these should not

be recognised.

Now, in regard to the two matters of arrest and detention, these two clauses are sought to be

introduced; but what happens after a person is arrested or detained ? His troubles begin then. When be is

detained or arrested and he is in the clutches of the police, he is alone in the world, and the forces of the

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 realise that the whole panorama of Swaraj is being taken away from us bit by bit. All the powers of

the magistracy will remain in this country as before. They are not going to make any change so far as the

question of the separation of the judiciary from the executive is concerned. Knowing well what kind of

magistracy we have, we should at least provide some sort of check by the way of procedure at least. If

you do not allow the courts, even the highest courts in this land to pronounce if any law is valid and just,

you must at least have some compensatory thing. In regard to these principles, only two are sought to be

put in. Now, after arrest and detention, there is absolutely no sort of right which is sought to be given.

Sir, if you will kindly examine these two clauses (1) and (2), you will be pleased to see that not only

no further riot is sought to be given, but also that the take away from the existing rights. In regard to 15 A

(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 a modicum of right which ensures the liberty of the citizen. Sir, the present practice

under 61 of the Criminal Procedure Code is as soon as a person is arrested, he must be produced before a

court within twenty-four hours, excluding the time taken for the journey from the place of arrest to the

nearest magistrate's court.

Apart from this, Sir, when he is brought before the Court under section 61 within twenty-four hours,

then at that time the powers of the courts also are restricted under the present law, and I think they have

been rightly restricted. We know that the magistracy, especially the special class magistrates, is police

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ridden, because the Superintendent of Police has only to write a letter in secret against the magistrate and

the magistrate will be no more. Therefore the ordinary magistrates have not the guts to do anything

against the wishes of the police. andtherefore they allow detention as a matter of course. This is the

present practice, and therefore the law enacted a provision in section 167 of the Criminal Procedure Code.

With your permission, I would just read that provision.

The provision in the Criminal Procedure Code is as follows:-

"Whenever any person is arrested and detained in custody and it appears that the investigation......

cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for

believing that the accusation or information is well founded, the officer in charge of the Police-station or

the Police Officer making the investigation if he is not below the rank of Sub-inspector shall forthwith

transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the

case and shall at the same time forward the accused........ to such Magistrate. "

Now, this provision and the other provision say that an accused must be kept with the authority of a

Magistrate;-and third-class and second class Magistrates, unless they are specially empowered, have not

the right to authorise detention of a person, because in 1923 we passed a law whereby a proviso was

added to this effect :-

"Provided that no Magistrate of the third class and no Magistrate of the second not specially

empowered in this behalf (by the Provincial Government) shall authorise detention in the custody of the

Police."

Even this right is taken away. There is an amendment by a friend of mine to this clause which says that

only first-class Magistrates should be enabled to have, this power and to authorise detention. I do not

agree with him, because unless and until the second-class and third-class magistrates are also specially

empowered, it would be difficult to work it in practice, but at the same time, I do not see any reason why

this provision passed in 1923 should be taken away by this clause.

Then again, Sir, a very important and salutary check has been placed on the authority of the Magistrate

by virtue of provision 167 (3) which says : "A Magistrate authorizing under this section detention in the

custody of the police shall record his reasons for so doing," and I beg Dr. Ambedkar to kindly give me his

car for half a minute. I beg to submit that only four words "and for reasons recorded" be added. When a

person is brought before a Magistrate, this is exactly the time when his fate is going to be sealed or to be

bettered. At that time, according to the practice followed in the Punjab and elsewhere, when an accused is

presented before the Magistrate, when the remand is sought to be given, the Magistrate is bound to record

his reasons and this is a very great check upon the power of the Magistrate. I have got some specific

amendments to this effect. I want that in the first proviso in the proposed new article 15-A as moved by

Dr. Ambedkar the words "and for reasons recorded" to be added and I beg of Dr. Ambedkar to kindly

consider the full effect of these words.

I claim that unless these words are there, you will be taking away a very important right of the

accused. If you put these words, then it would mean this that as soon as a man comes, as soon as the

papers are presented to the Magistrate, it is the duty of the Magistrate to see how long the remand is to be

given, for how long this man is to be put in the dungeon and give full reasons and these reasons could be

scrutinized by the superior Courts and the accused could get that order revised. This order is revisable; it

is a judicial order; it is not an executive order and therefore, reasons must be given. If reasons are given

then, of course, we may say that the order is justified. If you provide the reasons to be given, then the

Magistrate will be called upon to explain; he will have to hear the lawyer and then pass an order whether

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a man is to be detained for ten or five days and for what reasons he has to detain him. If you do not

condition his order with the words "and for reasons recorded", the probability is that the Magistrate will

mechanically make the order of remand.

I do not want to read from the rulings which give effect to it and why this is a very salutary law. I

leave it to the House because I submit this is one of the most important amendments that I seek to make in

this law. If these words are there, I submit Sir, the liberty of the accused will to a very great extent be

secured and at the same time the present provision 15A. (1) will not be necessary, because as soon as a

person is brought within a period of twenty-four hours his counsel is there; then in that case when the

Magistrate goes into the reasons as why he should allow further remand at that time, the reasons are gone

into and the accused is automatically informed and the accused can ask the Magistrate why he is granting

a remand and why he is being put in custody. He has a right to an explanation from the Magistrate why he

is detained, and thus the provisions of 15A (1) will be in effect fulfilled. If you put these words "and for

reasons recorded" in clause, (2) then it would follow that 15A (1) will be unnecessary.

In practice what happens ? The police is all powerful, they misinform the persons, ill-treat him and his

relations and give them wrong reasons of detention. You have got nothing to prevent this being done

unless it 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.

In regard to my other amendments, I am glad that one amendment has been accepted by

Dr. Ambedkarregarding counsel and I will not take up your time by referring to this aspect of the case.

The other amendments which follow also relate to such rights as have been already conceded by the

Criminal Procedure Code and the only apprehension is that a panicky legislature or an autocratic

Government may not take away those rights from the people and begin to tyrannise over them. Let us be

quite clear in our minds about this aspect of the matter. The whole of India, though governed by the

Centre, is at the same time governed by the Provincial Governments and States where the autocracy of the

old days is still in vogue and it is high time that when the new legislatures come into being, we should see

that the legislatures do not misuse the powers in respect of which they have not got any experience

whatsoever. It is in the blood of every executive officer and much more so in India to have as much

powers as possible. Does this House not remember that in 1947 we passed such a law as against which

one of the present Ministers of the Crown stood up and said "It is a black law" ? Do we not remember that

we in a panic passed in this House laws authorizing the Police to shoot over the public without

any warning ? Do we not know that we in this House passed some laws whereby if a person wrote an

article, not because it was inflammatory, but tended to do something which was quite vague in respect of

worsening the relations between different Communities, not only his other publications, but the press in

which they were published, could be confiscated without an appeal to any Court?

I know that these powers were not used because we have got Sardar Patel at the helm of affairs,

because we have got our own Government who do not want to use these powers. Suppose, Sir. in a new

State which is being formed these powers are given to the Ruler of that State, who in his wisdom begins

to exercise those rights, what would happen to the rights of the individual. We are making a Constitution

which will save the liberty of the people. My humble submission is that that article 15 as it stands with

these two safeguards also is a blot upon the Constitution. We have not been able to secure the rights

12

which we wanted to secure. I know I am using strong words. But, my feelings are extremely strong and I

cannot conceal them from this House. I want them to share these feelings with me. As a matter of fact, I

say this is the only time when you can impose some restrictions on the legislature. We must bring all the

pressure on Dr. Ambedkar, and tell him that these are the minimum rights which we want to secure to the

people at large. I would have rather liked that Dr. Ambedkar, instead of resisting the attempts of these

people, should have resigned from his post as a protest against the pressure which is being brought upon

him by the powers so that these fundamental rights may not be put in.

We have agreed that due process of law shall not be there. But I do not agree that even these small

rights should not be put in. I submit for your consideration what these rights are. One of these rights is

that. everyperson accused of any offence shall have the right of cross-examining the witnesses produced

against him and producing his defence. This is a very elementary right. If you do not allow this, why

speak of a trial ? Do we not know every day that this right is being denied to the accused ? In

the mofussil, the courts do not wait for the counsel and cases are conducted in places where witnesses do

not reach. the people are being deprived of their right of defence. So far as cross examination is

concerned, we know even under section 256, the provisions are abused and attempts are made not to

allow cross examination. Where is the guarantee that in the future the legislature will not assume, that the

executive will not force the legislature to assume the power that any accused may be condemned even in

his absence ? I know of the legislatures where attempts were made to see that in the absence of the

accused, the hole trial is gone through. Do we not know the Rowlatt Act which said,

no vakil, nodaleel no appeal ?

Mr. President: The Honourable Member has made reference to this House several times. I do not

know which House he means.

Dr. P. S. Deshmukh (C. P. & Berar: General) : In its legislative garb.

Pandit Thakur Das Bhargava: This House has got two forms, one legislative and the other

constitutional. We pass laws in the other House and here we only pass this Constitution. I am referring to

the other House. You are the President of that House also though we have got a Speaker too. My humble

submission is, we take full responsibility for what we have done. These laws have not been misused. My

humble submission is, where is the guarantee that any other Government which is not manned at the

Centre by people like the present Cabinet, or any other provincial Government will not exercise

these powers ? We do not think this Government would do it. But, there are other Governments. Take the

case of Rajasthan. They have just emerged from autocracy; we do not know to what extent they will go

when they are confronted with an emergency. With regard to emergency........

Mr. President : I was thinking of reference to this House when you mentioned the Rowlatt Act.

Pandit Das Bhargava: The Rowlatt Act was passed in 1918, XIV of 1918, I know. My submission is,

where is the guarantee that this House or the provincial legislatures will not enact a law like that Act

? This should be made foolproof so that the courts would sit in judgment and pronounce that these Acts

are not valid. When it is a case of giving compensation, let us be fair and let that compensation be

adequate and fair and just. It is neither, it is not even justiciable.

I shall come to another clause. No person shall be subject to unnecessary restraints or to unreasonable

search of person or property. This clause has a history of its own. I do not want to go into the history of

general search, etc., as they happened in England. But, I want to refer to what happened in this very

House. On 3rd December,Kazi Syed Karimuddin brought an amendment in this House in your absence. It

was to this effect : it appears on page 794 of the proceedings dated 3rd December 1948.

13

"That in article 14, the following be added as clause (4):-

'(4) 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

besiezed'."

When we were debating this, at the end, Dr. Ambedkar who is imbued with the notions of a criminal

lawyer, I do not know whether he has practised or not, said, (it appears on page 796) : "I am however

prepared to accept amendment No. 512 moved by Mr. Karimuddin. I think it is a useful provision and

may find a place in our Constitution. There is nothing novel in it because the whole of the clause as

suggested by him is to be found in the Criminal Procedure Code so that it might be said in a sense that

this is already the Law of the land. It is perfectly possible that the legislatures of the future may abrogate

the provisions specified in his amendment, but they are so important so far as personal liberty is

concerned that it is very desirable to place these provisions beyond the reach of the legislature and I am

therefore prepared to accept his amendment." The amendment was accepted. The Vice President said

twice that the amendment was accepted. But then the question was raised and ultimately this

was negatived.

I am submitting this to prove that as a matter of fact, this Drafting Committee which we have

appointed, which should have carried out the will of this House, has failed to do so. It has succumbed to

extraneous influences from other authorities. I think that so far as this House is concerned, the Drafting

Committee should have carried out the behest of this House. Dr. Ambedkar should have been allowed to

have his own way. Dr.Ambedkar agrees that this is a useful provision. Yet, now, he is not prepared to

accept my humble amendment to this very effect. What is the position? The position is, that the 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. Munshiwho 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 embarrassment and harassment is being caused to the public, on account of this corrupt and

incompetent police.

I know when we say this we are, condemning ourselves I do not take any pride in saying that the

police is so bad. But we have just started reforming them after 200 years of slavery and it may take some

time to change. If we continue to have the Cabinet which we have got now for some years more, I think

things will improve. But, we must take stock of things as they are. We cannot be complacent that

everything is being done rightly. May I humbly submit, Sir, I do not want to paint a gruesome picture, in

the present circumstances of the country. But there is no doubt there is great corruption, there is great

tyranny and there are no civil liberties in this country. Our ministers at the helm of affairs are not fully

aware of the situation. May I tell you, Sir, what happened in Delhi to the refugees ? Without any law,

police robbed the people of their goods, and broke up their stalls. There was no law; When asked under

what law this was being done, the reply was that this was done under executive orders of the Cabinet.

Now, my humble submission is that unless there is a reign of law in this country wherein no situation like

14

the one in which we find ourselves will arise, the liberty that we have won is not worth the paper on

which it is written.

What is the fifth right I claim? I claim if there is a conviction, if a person is sent to imprisonment, at

least you provide him with one appeal. Now it was after great fight and after you yourself took some

interest in the affair that we were able to put in a clause relating to Federal Court that in cases of persons

who are for the first time sentenced by the High Courts to death, in those cases an appeal was allowed;

but even then if the High Court in its wisdom wants to sentence the accused to transportation for life, even

though this is the first conviction, there is no appeal. My submission is that in every civilised country the

judgment of one man is not given the power whereby he can put a person in imprisonment of

transportation. I therefore want a very simple provision that every person when he is convicted or

sentenced to imprisonment must have one right of appeal. Is it extravagant that at least when the liberties

of the people are taken away, they will have at least one appeal.

Similarly when you go to the other question about speedy trial, what are the functions of Government?

Justice delayed is justice denied and I need not emphasize it. I am not one of those who want abstract

rights-I am not one of those who are opposed to social control in the interest of the community but I do

want that personal liberty may be secured to the individual in a full measure. My submission is that we

must have the ordinary rights which have been enjoyed by every civilized country.

I now come to the second part of the provision and that is relating to preventive detention. There was a

time when detention without trial was regarded as a very heinous offence by itself when every person said

that no person should be detained without being tried. Now fortunately or unfortunately the time has

come and in everycivilised country we have a law about preventive detention. I do not want that my

country must not have the safeguard; on the contrary I have always stood for having a law about

preventive detention and I am glad that we are going to have clause (4). At the same time I want that the

preventive detention may be regulated by law. I want that at least the barest demands of justice be secured

to a person who is a detainee. After all every accused person before trial is presumed to be innocent, and

similarly a detainee who is not even tried is presumed to be innocent. Therefore no unnecessary

restriction may be put upon him and be may not be put to hard labourunless for wilful disobedience to

lawful order or infraction of jail rules. Therefore I suggest that so far as these persons are concerned, they

may not be put to unnecessary hardship or restrictions.

Now I am not satisfied that three months period is the right period which has been prescribed by

Dr. Ambedkar. In ordinary cases we give fifteen days to Police for preparing the case. In cases of this

nature when a case is prepared for this impartial tribunal, then according to me one month is quite

sufficient. Taking the exigencies of the time I submit that before two months are over an order should be

obtained from an impartial tribunal and not from a board. I want to use those words which a year and a

halt ago Dr. Ambedkar himself used, I am reading from the proposed draft of Dr. Ambedkar which he

presented before the committee appointed to consider the question of Due Process. At that time the draft

had these words :-

"Nothing in article 15, 15A. 12B and 15C shall apply to persons taken in custody under any law

providing for preventive detention of persons who are believed to be engaged in dangerous or subversive

activities. Provided however no such person shall be kept for a longer period than three months without

the authority of an impartial tribunal."

you call it Board and I call it Impartial Tribunal. If you call it an 'Impartial Tribunals', unconciously it

gives the persons concerned an idea that it is an impartial tribunal. I want that this Board must be armed

15

with the powers of examining the detainee. I regard it as one of the most salutary and one of the most

elementary principles of justice.

We passed the other day an article that if a civil servant-if he was going to be reduced in rank or

removed or dismissed, he must be given an opportunity of showing cause. Now this man whose liberty is

taken away will not have such liberty of showing cause. Dr. Bakshi Tek Chand just showed me one of the

laws of the Government of Madras which says that in a situation like this the Madras Legislature has in its

wisdom sought to impose a restriction on the powers of the Executive that they must give the detainee the

grounds for which he is detained and ask him his explanation of the same. When Dr. Ambedkar moved it

he. said probably this power may be given to that Board. My submission is I do not want to stand on

formalities. I want in our Constitution we must place it that every person who has been detained shall be

given an opportunity before a tribunal to explain his conduct and- evidence against him and know the

sources and the subject matter of evidence against him. He may be able to explain his conduct. I beg that

this clause should be considered from this point of view. I want that this Board may be given the power of

summary enquiry and examination of the detainee.

Now with regard to the ultimate period my humble submission is that in India the anticipation of life is

said to be only 23 years and one year is certainly not a very short period because after that if the police is

not able to secure evidence within that year and place before the Court, then I would imagine the evidence

on which he is sought to be retained is not worth the paper on which it is written. Therefore this period

may be taken to be one year.

I want these three amendments in this clause and I would be satisfied. My difficulty is if we pass these

clauses as they appear in the amendment then we cannot touch this period of 3 months. This will

become absolute and we cannot say in the coming law under clause (4) that the three months may be

reduced to two months. In fairness the Executive has to account for every minute of the detention of such

persons. It is in the laws of every country that no police officer is authorised to keep a person detained for

a moment longer than is absolutely necessary and three months even is an unconscionably long period. I

would like to reduce it further, but I would not go further than two months. Therefore, so far as these

provisions are, concerned, they should at least be reframed in such a way that these amendments are

incorporated and these rights are secured to the citizens of this country.

Mr. Naziruddin Ahmad : Mr. President, Sir, I beg to move:

"That in amendment No. 1 of List I (Eighth Week) for clause (1) of the proposed new article 15A,

following be substituted :-

'(1) Every person arresting another in due course of law shall, at the time of the arrest or as soon as

practicable thereafter, inform that person the reasons or grounds for such arrest, nor shall he be denied the

right to consult a legal practitioner of his own choice."

I also move :

"That in amendment No. 1 of List I (Eighth Week), sub-clause (b) of clause (3) of the proposed new

article 15A be deleted."

I also move :

"That in amendment No. 1 of List I (Eighth Week), sub-clause (b) of clause (3) of the proposed new

article 15A be deleted."

16

Shri Mahavir Tyagi (United Provinces: General) : Then, with what will the Member connect the

word "nor" occurring there ?

Mr. Naziruddin Ahmad: It is not bad English, it is just good idiom. If it does not sound well to the

musical ears of Mr. Tyagi, we may leave it to the Drafting Committee to cure it. Now, Sir, I do not wish

to go over the general ground so ably and elaborately covered by

my honourable Friend, Pandit Thakur Das Bhargava. He speaks with unique authority and experience and

he speaks with the fervour of a real patriot and he has had ample experience as a criminal lawyer, of the

vagaries of the police. And he is now not a practising lawyer and therefore he looks on these questions

with considerable amount of knowledge and detachment which ought to be respected in the House.

I shall confine myself to the three amendments which I have just moved. There is a difference between

the original article moved and my amendment, to clause (1). In the original clause the words are that

when a man is arrested, he should be informed, as soon as may be, of the grounds of such arrest. This

leaves it entirely to the discretion of the man arresting another whether or not to give the arrested person

the reasons or ground, of his arrest, at once. It leaves him entirely free to give the reasons or not. He may

give the reason later on, or rather invent a reason for the arrest, later on. My amendment says that the

grounds and the reasons for his arrest shall be given at the time of the arrest, or as soon as practicable,

thereafter. The point is that there should be no needless delay. If quickness in giving of the information is

impracticable, then alone he may delay it momentarily. Even then, he must give the information as soon

as possible. I shall give the House an example. It may be that a man who is to be arrested gets scent of it

and runs, and the police officer chases him. In that circumstance, it would be impracticable on the part of

the arresting officer just before the arrest, to give the arrested man the reasons for the arrest. He must first

of. all, secure his body and must give the reason at the time, or as soon thereafter as practicable. All that I

mean is that there should be no difficulty in giving the man arrested the reason for his arrest or the

grounds for his arrest. The usual grounds for such arrests are that there is a credible or reasonable

information against him that he has committed or is concerned with a cognizable crime or that from

hisdemeanour or other circumstances, the officer arresting him has reasonable suspicion that be is

connected with a cognizable crime or he is about to commit such a crime. These are the general nature of

the circumstances in which an arrest is effected. Other circumstances are there is a warrant or summons

against him or there is an order, by an appropriate authority for his arrest. These are circumstances which

it is easy for the police officer to explain, though not immediately before the arrest or at the time of

making the arrest, at least immediately after that.

The need for such a provision is this. Although there are similar provisions in the Criminal Procedure

Code, we must insert fool-proof provisions in the Constitution so as to make it impossible for a

Legislature to change those salutary provisions. Therefore it is very necessary that the Constitution should

be particularly careful about limiting the authority of the police in effecting arrests. There is nothing lost,

but much gained by telling the accused immediately after the arrest or at the time of arrest the reasons for

his arrest.

With regard to the other amendment, I seek to delete sub-clause (b) of clause (3) and of course the

proviso to clause (3) which is connected therewith. Sub-clause (b) is to this effect-that nothing in this

article shall apply to any person who is arrested under any law providing for preventive detention. Sir, I

fail to see the necessity for this. If a man is to be detained, as a preventive measure, there is nothing lost,

there would be no danger, nothing inconvenient in just letting the man know that he is being arrested for

preventive purposes under, the orders of a Magistrate or the orders of a superior officer or that there are

such and such reasons against him. In fact, it is very necessary that a man arrested should be given the

reasons for his arrest. And the obvious necessity for this is that unless the police officer is bound to give

17

him the information at once, he may make indiscriminate arrests as is often done. If he can arrest a person

without any justifiable reason, he will then be free to invent some reasons later on.

With regard to proviso to clause (3), there are a large number of elaborate provisions and I submit that

they are going into too much details of administration. As, to what should be done for a man who is under

preventive detention should be left to the Legislature. If we go too much into details, the result of that

would be that cases which we do not provide for would be rather doubtful. In these circumstances, I

submit that these amendments which I have proposed should be attended to and if thought proper, their

substance may be incorporated in the article.

Shrimati Purnima Banerji (United Provinces : General) : Sir, I move:

"That in amendment No. 1 of List I (Eighth Week), in clause (1) of the proposed new article 15A,

after the words 'as soon as may be' the words 'being not later than fifteen days' be inserted."

I further move:

"That in amendment No. 1 of List I (Eighth Week), in sub-clause (a) of the proviso to clause (3) of the

proposed new article 15A, after the words 'a High Court has' the words 'after hearing the person

detained' be inserted."

I further move:

"That in amendment No. 1 of List I (Eighth Week), in sub-clause (a) of the proviso to clause (3) of the

proposed new article 15A, after the words 'such detention' the words 'but so that the person shall in no

event be detained for more than six months' be added."

I also move :

"That in amendment No. 1 of List I (Eighth Week). the following proviso be added to clause (4) of the

proposed new article 15A :-

'Provided that if the earning member of a family is. so detained his direct dependents shall be paid

maintenance allowance."'

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. Granting that we visualize a situation in which it may become necessary and

occasions may arise, when powers of detention may have to be used and exercised by a

particular Government : Clause (1) says that if a person has been arrested he shall soon after that be told

the reason of his arrest and clause (2) says that after twenty-four hours he shall be placed before a

Magistrate. We are not quite sure as to what is the length of time which will be considered suitable for a

person to be told why he is arrested. And if he is placed before a Magistrate, does it presume and

presuppose that before he is placed before a magistrate his charges will be given to him? Having our own

experiences in our own short political lives and careers of what it is to be detained and on what laws one

is detained, we feel that in this clause a period should be specified; that is, if a person is arrested and is

placed before a magistrate he should be given the charges for which he has been arrested within fifteen

18

days at the most if his presentation in twenty-four hours before a magistrate does not involve such charge

being framed within twenty-four hours.

Further it has been said that any detenu who has been put into jail shall be detained for three months

till an Advisory Board decides whether he should be detained for a longer period. We feel that

the detenu should be permitted to appear before this Advisory Board in person and state his case in full.

We know the process how the person is detained. If a person is considered undesirable, the local

Magistrates or the local authorities leave it to their subordinates to handle the situation and even to decide

upon the situation, Then it happens that people in these situations have no manner or measure of relief

because they are simply detained and not allowed to appear before any court and not told for the time

being why they are being detained. Therefore we do feel that after being detained a detenu should have

the right to appear before the Advisory Board in person before he is condemned or his detention is

upheld. No facts regarding the detenu should ordinarily be withheld from the Advisory Board.

Thirdly, I have moved another amendment by which I say that if the Advisory Board should consider

that such a person should be detained, in no case should that period exceed six months. I am sure that

within that period if sufficient evidence is found against the accused the proper course would be that he

should be placed before a proper court or he should be released. Continuous detention from month to

month without a person getting a chance of appearing, or considering himself, sufficiently defended,

before a properly constituted Board is highly arbitrary.

Fourthly, whereas in our Constitution many provisions have been made as to how much salary one

should draw, what allowance members of the House shall get, what shall be each one's position and

status, if a person is detained in prison and if he is an earning member of the family I do earnestly plead

that he should be given a maintenance allowance. It should not be left to the arbitrary will of any one to

deprive anybody of his liberty and then later on to decide, by leaving it to their sweet will, as to how his

dependents shall live and maintain themselves.

With these words I commend my amendments to the House.

Dr. P. S. Deshmukh : Sir, there is more than one amendment standing in my name. I need not move

amendment No. 103, but I would like to move Nos. 107 and 110.

I move:

"That in amendment No. 1 of List I (Eighth Week), for clause (2) of the proposed new article 15A, the

following be substituted :-

'(2) Every person who is arrested shall be produced before the nearest magistrate within twenty-four

hours and no such person shall be detained in custody longer than twenty-four hours without the authority

of a magistrate"'

I further move :

"That in amendment No. 1 of List I (Eighth Week), clause (3) of the proposed new article 15A be

deleted."

Sir, I would like to offer some observations of a general nature on this article. I do not share the

vehemence which has actuated my honourable Friend, Pandit Thakur Das Bhargava, although the grounds

that he has stated in the House really incline one to take extreme views. As has been remarked by

19

the Honourable, Dr. Ambedkarhimself, he had really anticipated the argument that there is nothing new in

this article and that most of these provisions were really covered by those which are in existence in the

Criminal Procedure Code. His point was to a certain extent elaborated by

my honourable Friend, Pandit Thakur Das Bhargava, and it was pointed out that if this article was passed

in the shape in which it has been placed before this House the situation would be worse than it is at

present and there would be no improvement.

In addition to the sections which have been referred to by my

Friend, Pandit Thakur Das Bhargava from the Criminal Procedure Code I would like to refer to section 81

also. He has referred to section 61 where it has been laid down that:

"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 section 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 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.

20

If that is the point of view, if that is the attitude, then article 15A cannot be much of a remedy. The

present situation is certainly most obnoxious. We know of instances in every Province where people's

liberties are taken away. I will give a most poignant instance which should make every Member of the

House sit up, and think. Two M.L.As. who were in Congress for eighteen years, who were elected on the

Congress ticket, were detained by an order of the Bombay Government which is a Congress Government.

One of them was released after a period of eleven months without being told at any time what the charges

against him were, without there being any trial, without conviction; when his health was about to break

down the Government was pleased to release him. The second M.L.A. is still in jail; he has not been tried,

he has never been told what the allegation against him is, what offence he has committed; and to add

insult to injury he has been told that because he has not attended the Legislative Assembly for a certain

minimum period at laid down by the law, he ceases to be an M.L.A. of that Province. A person has been

prevented from attending the Assembly because of an act of the Government and that has been made as a

ground for ousting him from the membership of the Legislative Assembly. That I think is the height of

disrespect for law. If that is the respect for law that we have, if that is the sort of administration that is

going on in the Provinces and we are not to look into it or question their propriety, I do not think any

provision in the Fundamental Rights would be of any use to us.

If you want to prevent this sort of thing happening, you will have to go, much farther than you are

prepared to go in this article. This article can be no remedy; it is a mere repetition of what exists in the

Code of Criminal Procedure and if you are not prepared to respect that Code I am sure there will not be

much respect given to this provision either. As was pointed out by my

Friend, Pandit Thakur Das Bhargava you are going to put in obstacles in the way of Parliament in

enlarging the rights of the individuals; by the inclusion of sub-clause (3) you are going to lay down a

procedure for all cases of preventive detention. If tomorrow the Legislature of a State or even the

Parliament wishes to deal with the preventive detenus in a more liberal manner, they will be prevented

from doing so by the fact that there is a provision in the Constitution which is of a fundamental nature and

which cannot be altered by the Parliament. Therefore, this provision is absolutely useless. It does not

protect the individual in any way to any greater extent than does the Code of Criminal Procedure. 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.

At any rate, if this article must be there, I have given so far as clause (2), is concerned my shorter draft

of it. Of course, it is only in the nature of a drafting amendment, but I would like to support my Friend

Mr. NaziruddinAhmad and commend the omission of at least sub-paragraph (b) of clause (3) of this

article, that is to say, the provision which will fetter the discretion of the future Parliament so far as laying

down the procedure for the release of the preventive detenus is concerned. This provision would be

curtailing the rights of the individual and not enlarging them and I for one agree that there is much to be

done so far as this abuse of law is concerned. My Friend Pandit Thakur Das Bhargava admitted that this

autocracy is in our blood and it is showing signs everywhere. There have been shooting cases, there have

been lathi charges and there has been no attempt whatsoever to investigate into the causes to look into the

grievances of the people. The rule of unlawfulness, the want of the rule of law, is so rampant in the whole

of India that it is likely to recoil upon the heads of all of us one of these days. The people

are. getting tired, and if you feel that this Government is not popular there are very many reasons for that,

but unfortunately nobody is paying any attention to it.

If this is the way in which we want to pay attention to these facts,- then I would beg of

my Honourable Friend Dr. Ambedkar to provide a remedy which Will be a real remedy and not

something which will be merely taking away what exists. In fact, if there is not going to be any stringent

21

provision, I would be more content to leave the thing as it is, under article 15. It would be much better not

to have this article 15 A at all than have it in this particular shape.

I appeal to you, Sir, that the situation is grave; our respect for law is certainly decreasing. We are

ruling our people in a manner much less generous than the aliens did; if these rights that were conferred

by the alien rulers upon the people of India as early as 1898, which continued though with very many

violations throughout this period of fifty years, are not at all respected, if you want to respect them, if you

want to safeguard the freedom of the people and their liberty, there should be a more radical provision in

the Constitution than what has been proposed.

Shri H. V. Kamath (C. P. & Berar : General): Mr. President, it was refreshing to hear

Dr. Amedkar make a confession of faith. He expressed his dissatisfaction with article 15 as adopted by

this Assembly. and said that he was trying through this new article 15 A to undo the harm that might

accrue from the operation of article 15 as it stands. He commended this new article to the House in

accordance with the age-old maxim:-

"Sarvanashe samapanne

Ardham tyajati panditah".

I wish, Sir, we, could accept this new article in this spirit, but I feel, not being a pandit myself in name

or otherwise, that we are giving up more than half. If it was really half, ardham tyajati,. I would not have

minded it, but in an attempt to, salvage what has been lost we are giving up much more than half.

That is why I have tabled my amendments whose purpose is to salvage as much as possible and undo

the harm that has been done by the adoption of article 15. If the House would refer to article 15, as

adopted, myhonourable colleagues-will see that the reference there is to procedure established by

law. Once having adopted this article in this form, I see no reason why the law according to which a

person could be deprived of his life and liberty could not have been safely left to the future Parliament.

Why by introducing the new article 15A do we seek to fetter the future Parliament of our country? it is

due, I fear, to a lack of faith in our future Parliament. I would not say that the House, but the Drafting

Committee, is afraid that the future Parliament may not act wisely. I am sorry if the Drafting Committee

is motivated by such a fear. This whole article detailing the law and the procedure under which a person

can be deprived of his liberty could have been safely left to the future Parliament to lay down and to

provide for. This has been an unnecessary intrusion into our Constitution and it would have been quite

adequate for our purpose to mention in article 15 that life and liberty will be sacrosanct, except under

procedure established by law, and that law could have been left for Parliament to provide and regulate.

Coming, Sir., to my amendments, I shall move them one by one. First, I shall take amendment No.

104, List III, Eighth Week. I move:

"That in amendment No. 1 of List I (Eighth Week), in clause (1) of the proposed new article 15A,

after the word 'magistrate' Occurring at the end, the words 'who shall afford days following his arrest' be

substituted."

It is a well known fact, that the police or other authorities or persons arresting or detaining people are

not always actuated by the justest and the fairest of motives. As one who has spent a few years in the

administrative field-in the administration of a district--I am well aware myself how the police arrest

people for reasons wholly unconnected with security or order and sometimes merely with a view to

paying off old scores or wreaking private vengeance. In order to obviate or at least mitigate the evils or

22

the harm that might accrue from unjust arrest of people by the police or other authorities I wish to provide

through this amendment specifically that the person arrested shall be informed of the grounds of his

arrest. within seven days following his arrest. The words used in this article moved by Dr. Ambedkar are

"as soon as may be". I would be happy if the person is informed of the grounds even at the time of his

arrest.

The Honourable Dr. B. R. Ambedkar: That is the intention. You are worsening the position by your

amendment.

Shri H. V. Kamath: Why not then make it specific? I would welcome the substitution of the words

"as soon as may be" by the word "immediately". My Friend, Shrimati Purnima Banerjee, has also moved

an amendment to the same article, where she wishes to substitute the words "as soon as may be" by "not

less than fifteen days". I think fifteen days is far too long a period. I think twenty-four hours would be the

best. In any case if there is any hitch in informing the arrestee of the grounds of his arrest, I think in no

case should it exceed more than a week.

Coming, Sir, to the next amendment (No. 108), I beg to move:

"That in amendment No. 1 of List I (Eighth Week), after clause (2) of the proposed article 15A, after

the word magistrate' occurring at the end, the words 'who shall afford such person an opportunity of being

heard' be added."

The Honourable Dr. B. R. Ambedkar : I must tell my honourable Friend Mr. Kamath that he is

worsening the position. Our intention is that the words "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.

23

The Honourable Dr. B. R. Ambedkar: You are selling your immortality very cheap.

Shri H. V. Kamath: If Dr. Ambedkar admits that in using the phrase "as however that

Dr. Ambedkar presumes he will be immortal.

The Honourable Dr. B. R. Ambedkar : You might admit you have made a mistake in tabling this

amendment.

Shri H. V. Kamath: If Dr. Ambedkar admits that in using the phrase "as soon as may be" he has

erred, I would not say more.. He is standing on false prestige and showing obstinacy not worthy of him.

Coming to my amendment No. 108 I am glad to find that Shrimati Purnima Banerjee has also one on

the same lines. Both these are to the effect that the advisory board shall decide every case after giving an

opportunity to the arrestee or the detainee of being heard and that no case shall be decided by the advisory

board without hearing the person concerned. In the article as moved by Dr. Ambedkar there is no

satisfaction 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.

Sir, I now move amendment No. 109;

"That in amendment No. 1 of List I (Eight Week), after clause (2) of the proposed new article 15-A,

the following new clause beadded :-

'(2a) No detained person shall be subjected to physical or mental ill-treatment'."

I think Dr. Ambedkar is not quite aware of the frequent cases of physical or mental ill-treatment to

whichdetenus were subjected during the British regime, especially during the dark days of 1942 and

immediately thereafter. In one or two prisons where I myself was detained, I personally knew of cases,

where detenus in C class were beaten mercilessly and also subjected to all sorts of third-degree methods

of torture. There were cases where detenus were given no cloths to wear and were made to shiver in

severe cold in a state of nudity. There were other cases where the cells of detenus were flooded and

the detenus had to pass hours on the, damp floor which was not merely unhealthy, but definitely in some

cases induced pneumonia and other diseases which proved fatal. Sir, after all, a man is detained on

suspicion only. It is but fair that our Constitution should lay down specifically that no detenu will be

subjected to physical and mental ill-treatment. The latest Constitution of Western Germany-the Bonn

Constitution-though it is not the last word in constitution-making, has adopted, despite the prevalent

chaotic conditions fraught with danger to the State, a clause on these very lines that nodetenu 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.

24

My next amendment is No. 113.

Mr. President: Amendments Nos. 113 and 114 have been covered by the amendment moved

by ShrimatiPurnima Banerjee.

Shri H. V. Kamath: My next amendment is No. 116. This amendment goes to the root of the, matter

and in my opinion it is a vital proposition. It runs as follows:

"That in amendment No, 1 of List I (Eighth Week), after clause (4) of the proposed new article 15A,

the following new clause beadded :-

'(5) Notwithstanding anything contained in this article, the powers conferred on the Supreme Court and

the High Courts under article 25 and article 202 of this Constitution as respects the detention of persons

under this article shall not be suspended or abrogated or extinguished'."

Sir, before I speak on this motion I would ask for clarification as regards the content of the motion

moved by Dr. Ambedkar. I know that the amendment as moved by me is not couched in happy language.

It can be put in better language by lawyers if they accept the principle embodied in this amendment. First,

in regard to clause (4) of article 15 A. as moved by Dr. Ambedkar which invests Parliament with power to

make laws regarding preventive detention. I would like to know whether with regard to the persons

detained under the law of preventive detention, the jurisdiction of the High Courts and the Supreme

Court, especially with regard to their right to issue a writ of habeas corpus will be ousted. If it is not

ousted under this article, three is no need for amendment 116. If Dr. Ambedkar would make it

categorically clear that the power and jurisdiction of the High Courts and the Supreme Court in regard to

these detenues, and the right of the latter to move the High Courts and the Supreme Court, for a writ of

habeas corpus, it these are not abrogated by this article 15 A, then I would not press my amendment.

Otherwise, I would do so. The article is silent on this point. Therefore it is that I have moved this

amendment before the House.

We Sir, have already adopted article 280 seeking to vest in the President extraordinary powers in the

event of an emergency. According to that article, in an emergency the right of the individual to move the

High Courts and the Supreme Court for the enforcement of the rights guaranteed under Part III

Fundamental Rights and the powers of the courts in this regard will be suspended. I hope this is the only

article in our Constitution which seeks to abrogate or extinguish the fundamental rights conferred by this

Constitution,--the rights of the individual as well as the powers of the Supreme Court and the High Courts

in this regard.

Dr. Ambedkar in his speech referred to the enthusiastic champions of absolute liberty. I shall make it

quite clear that I am not an advocate of absolute liberty.

Mr. President : He did not talk of absolute liberty today.

Shri H. V. Kamath: He did, Sir, if I remember aright. (The Honourable Dr. Ambedkar nodded in the

affirmative). He referred to absolute personal liberty. I am not a champion or advocate of absolute

personal liberty. No man can have absolute personal liberty if he wants to live within the social

framework. If a man leaves the world and becomes an absolute sanyasi, not in the customary sense of the

term but in the truest sense, the case is different. If any man has to live in society, his personal liberty

must be restrained. Liberty without restraint will become licence. The eternal problem of governments all

over the world has been how to reconcile the liberty of the individual in society with the safety and

security of the State, and thinkers have widely differed on this point. Some have tried to exalt the State

25

above the individual making it a leviathan making it a veritable supreme power, which can crush the

individual without any compunction. There have been other thinkers who have sought to lay down the

dictum that the State is for the individual, and not the individual for the State. We will have to strike a

balance between these two : the individual for the State and the State for the individual. We should bear in

mind that the State has been formed, has been brought into being by individuals acting together, acting in

unison, and we must provide that the State will not unjustly, unfairly override the claims of the individual

to Justice and liberty. That is what we hear, the founding fathers of our free State, have got to provide in

our Constitution. If we seek to take away or abrogate or extinguish the liberal of the individual without

due course, without having in mind really the security of the State, but having in mind only the lust for

power of a coterie, or a few men in power, then that provision to my mind stands self condemned.

The question is whether under the article as moved by Dr. Ambedkar we have provided for those cases

where persons might be arrested and detained for long periods without even a show of justice. Clause (4)

of this article lays down that Parliament will prescribe the circumstances under which and the class or

classes of casts in which a person who is arrested under any law providing for preventive detention may

be detained for a period longer than three, months and also the maximum period for which any such

person may be so detained. Supposing Parliament takes it into its head to lay down that the period of

preventive detention may last a man's life-time, what stands in the way of the Parliament doing so? But as

a safeguard there, must be the courts of justice to go into every case and decide as to whether every

person detained under that law has been justly detained, has been fairly detained and has been detained

for longer than is absolutely necessary. That is why I want to vest the High Courts and the Supreme Court

with this power to examine and decide the cases of persons detained under clause (4) of this article which

provides for preventive detention. If, as I said, the powers and the jurisdiction of the High Courts and the

Supreme Court have not been ousted by this article, then my amendment falls. Otherwise, there is a

lacuna in this article and we shall greatly endanger the liberty of the individual if we do not provide any

sort of safeguard against unjust detention which has been so often done in the past by the British

Government. I do not mean to say that we will do so in future, but we know that the British detained

persons without just cause, often on mere suspicion, or just because some officer wanted to take revenge

on somebody.

Before I close, I would only say that it looks to me as though we are framing a short-term Constitution,

we are drafting a Constitution which will last perhaps just as long as some of us hope to be in power and

we do not have a long-term plan or vision. Has anybody considered how some other persons, possibly

totally opposed to our ideals, to our conceptions of democracy, coming into power, might use this very

Constitution against us, and suppress our rights and liberties ? This Constitution which we are framing

here may act as a Boomerang, may recoil upon us and it would be then too late for us to rue the day when

we made such provisions in the Constitution. I hope, Sir, and I pray to God that we shall be guided by

wisdom and vision, not merely wisdom but the vision for a long-term constitution and we will see to it

that the Constitution that we are framing will not last merely for a few years but will last at least our life-

time, if not for a few generations. If unfortunately this outlook is not there, the old Biblical saying will

come true--"Where there is no vision, the people perish."

Shri H. V. Pataskar (Bombay: General) : Mr. President, Sir, there has been considerable discussion

with respect to the way in which we have already passed article 15 and with respect to the fact that we

failed then to make provision for due process of law and all that discussion has gone on for a long time. I

have no desire to enter into all that discussion, to reopen it and take the time of the House because

the Honourable Dr. Ambedkar the Chairman of the Drafting Committee has himself stated that in view of

the article 15 as it has been passed, he has thought it necessary to bring forward this article 15A as a sort

of compensation: I start from that point and do not want to go behind that. Then, Sir, I have tabled some

three or four amendments which are on the basis that I do not want to refer to that controversy which was

26

carried on for a large number of hours in this House, but I want to see if I can contribute anything to the

improvement of the draft as it stands in certain technical matters and only one matter which I regard as a

matter of principle.

My first amendment is No. 105 : it reads as follows:--

"That in amendment No. 1 of List I (Eighth Week), in clause ( 1) of the Proposed new article

15A. for the words 'as soon as may be' the words 'within twenty-four hours' be substituted".

So, far as the intention is concerned, I would just claim for five minutes the attention of Dr. Ambedkar;

he and I agree. He himself said while interrupting Mr. Kamath that the meaning of the words "as soon as

may be" is that it must be done immediately. I agree entirely with the object in view, and say that the

words "as soon as may be" should be- replaced by the words "within twenty four hours".

Dr. Ambedkar says in clause (2) as follows : "Every person who is arrested and detained in custody shall

be produced before the nearest magistrate within a period of twenty-four hours", and the magistrate is

to authorise his detention further. In paragraph 1 we have mentioned that the grounds should be

communicated to the person "as soon as may be". It may happen in a particular case like this--and I would

like to stress this point : Supposing the Police arrest a man, they take that man under clause (2) to the

magistrate within twenty-four hours and there at that time they do not communicate any reasons to this

man because under paragraph (2) what is required of them is to produce the person before the magistrate

within a period of twenty-four hours. The only thing that paragraph (2) is concerned with is for a different

purpose, it is for the, purpose of enabling the Police Officer to get from the magistrate an authority to

detain him for more than 24 hours and it has nothing to do with the question of informing that mail of the

grounds on which he has to be detained. I would like to make that distinction. Paragraph 1 refers to a

matter which refers directly to the person who is detained, namely that he has to be informed of the

reasons on which he is to be detained and paragraph (2) only refers to the matter that he must be produced

before a magistrate within 24 hours. In a given case it may be argued that a person was produced before a

magistrate within 24 hours and the magistrate authorized that he may be detained for a further period of a

month or fortnight or whatever it may be, but a man may still not be informed of the reasons for a longer

period than 24 hours. So far as the principle is concerned, I entirely agree with him and the object is the

same. I would like to draw his attention to paragraph (2) which is intended to enable the Police Officer to

get from the magistrate the authority to detain an arrested person for a longer period and paragraph (1)

relates to supplying of grounds to the Person who is detained. These are two different things. Suppose A

is arrested, he is detained and within 24 hours he is taken before a magistrate and we know it would not

be very difficult for any police officer to get from the magistrate an extension for a further period and the

accused may not be informed, as required by para (1). Therefore I would suggest to Dr.Ambedkar--Our

objects are the same and we want that all these provisions in clauses (1) and (2) are based on the Code of

Criminal Procedure provisions as they exist and there is no desire to go back on them-and I would appeal

that this loop-hole be closed.

Therefore, I say instead of the words "as soon as may be" the words "Within twenty-four hours" be

substituted. I hope I have been able to convince the Honourable Dr. Ambedkar that clauses (1) and (2) are

entirely for different purposes and in respect of different persons. The idea between "as soon as may be"

and "within twenty-four hours" is the same, and Dr. Ambedkar goes further than myself and he says that

the man must be immediately informed. If that be, so I would appeal to him to accept my amendment No.

105.

As regards amendment No. 106 that also is an amendment which tries to carry out what is there

already in the Code of Criminal Procedure. Along with several other arguments which were raised

by Pandit Thakur Das Bhargava, he has already referred to this aspect of it. Under the Code of Criminal

27

Procedure section 61 authories a Police Officer to detain a person for 24 hours and then there is another

section 167, and in that there is a proviso whichsays :

"Provided that no Magistrate of the third class and no Magistrate of the second class not specially

empowered in this behalf by the (Provincial Government) shall authorize detention in the custody of the

Police."

As the law stands now, the power has been given to extend the period of detention only to magistrates

of the first class or to such third class and second class magistrates who are specially empowered in this

behalf. Now, my amendment is that in amendment No. 1 of List I (Eighth Week), in clause (2) of the

proposed new article 15A, after the word "magistrate," wherever it occurs, the words "of the First Class"

be inserted. The reasons are clear. Probably on this point also, there may be no difference in principle. If

under the Criminal Procedure Code, this power is to be exercised only by a Magistrate of the First Class

and by magistrates of the Second Class and Third Class where they are specially empowered, I believe

that in the Constitution, when we are making a provision of the nature which Dr. Ambedkar proposes to

make, then, it is necessary that such a power should be confined only to Magistrates of the First Class, for

reasons which I think it is not necessary for me to go into, knowing as he does the lower magistracy, its

composition, ideas of justice and ideas of jurisprudence and all that. Probably Section 167 of the Criminal

Procedure Code had to be amended because it was felt unsafe to leave this power in the hands of Second

and Third Class magistrates unless they were specially empowered in this behalf. I would appeal therefore

that this is a very salutary thing that when we are making a provision, this power should be given only to

Magistrates of the First Class.

While I was discussing this matter with a colleague of mine, he suggested that the difficulty is that

Second Class and Third Class magistrates may be available at short distances and First Class magistrates

may not be available easily. To this, Sir, I would appeal. that we may exclude the time taken for

producing the person before the magistrate. When we are guarding the liberty of a subject, it is better,

even if a man is detained for a few days more, rather than taking him before a Third or Second Class

magistrate, he should be taken before a First Class magistrate, who is expected at any rate not to be

influenced so much by mere police reports or the report of an executive officer. It is from that point of

view that I have given notice of this amendment No. 106 which stands in my name. I hope this

amendment also will be acceptable to the Honourable Dr. Ambedkar.

Then, there is another amendment, No. 111 :

"That in amendment No. 1 of List I (Eighth Week), in sub-clause (b) of the operative part of clause (3)

of the proposed new article 15 A, after the word 'law' the words 'of the Union' be inserted."

Sir, this is not a formal amendment and naturally, I would like to press my views on this matter.

Clause (2) of this new proposed article 15-A says : "Every person who is arrested and detained in custody

shall be produced before the nearest magistrate etc., etc." Clause (1) says that he should be informed of

the grounds for such arrest. Clause (3) is in the nature of a proviso, or an exception being made (to the

provision already made) in clause ( 1) and (2). Clause (3) says : "Nothing in this article shall apply (a) to

any person who for the time being is an enemy alien." There can be no point of difference so far as that

provision is concerned. With respect to the next provision, the clause says : "to any person who is arrested

under any law providing for preventive detention." My point is that so far as these laws for preventive,

detention are concerned, there must be uniformity in the new Union to come into existence. At the present

moment, we have got public safety measures passed by different provinces. There is one law in Bengal;

there is another law in Madras and there is a third law in Bombay . 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

28

have been various interpretations and naturally, therefore, there is a sort of a confusion. We have already

listened to some honourable Members who have pointed out some of the defects in the existing public

security measures Acts in the different provinces. I need not dilate upon that point.

But, my point as a lawyer is that there must be uniformity in this legislation and it is the Union

Government and the Union Parliament that alone should pass this legislation. I am told that it would be

too late in the day now, when we have put in the Concurrent List certain matters. Unfortunately, I was not

here at that time to express my view. Even that difficulty does not exist to my mind because in the

Concurrent List I am told there is made a provision for legislation with respect to public safety. and with

respect to the safety of the State it has been left exclusively in the hands of the Parliament at the Centre.

Even if it is in the Concurrent List, there is nothing wrong in providing here in the Constitution that so far

as laws regarding preventive detention are concerned, where the question of the liberty of the individual is

concerned, it is better that this exception should be made in clause (3) in respect of laws passed by the

Union only. If a provincial Government has passed any law, that law must be in conformity with the

provisions that we are making in article 15A and it must be within the limits which are now being

presented so far as such legislation regarding arrest and detention of persons is concerned.

Therefore, I think, it is just and proper, it is in the interests of the administration of the country, it is in

the interests of the reputation of our people as a whole that we have one uniform law so far as this

question of restricting the liberty of a person is concerned. It is no good of having different provincial

laws; ultimately, they react upon the whole country upon the reputation even of the Central Government

whether the law are passed by this provincial Government or that. Therefore, I say this is an amendment

of substance which I would like thehonourable 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 with out trial. I learn on good

reliable authority that even foreign countries we are being blamed for the way in which some of these

provisions are being carried out. Is it not desirable therefore that we have one uniform legislation? We

have got our freedom newly. People have not learn to behave democratically and there are so many

actions which are beyond control and resort has to be had to detention without trial. I would submit, let us

not be warped by what is happening in the present, let us be guided by the wholesome principles which

should prevail and if at all this thing is to be done, that should be done by the Central Parliament which

may take a more dispassionate view rather than by the provincial Governments.

Another drawback is that whenever power is given to any State or province to pass such a legislation,

naturally, the human tendency is to go along the easiest line. If we anticipate some trouble somewhere for

the ordinary process of law, which is believed to be cumbersome, the tendency is to curtail the liberty of

the subject and to pass legislation which would prevent it. As a matter of fact, I find that that process, that

method has not succeeded. On the contrary, it is bringing many of us into unpopularity. Because, as soon

as a man is detained without trial under the Public Safety measures, he is exasperated, and his supporters

get a handle. Therefore, I think it is best that if such measures are necessary, they should be uniform and

they should be passed by the Central authority where representatives of all the States meet and where they

29

can take a more dispassionate view rather than in the Provincial Governments. Therefore, Sir, I commend

this amendment.

There is only one little point. Probably this was also intended by the Drafting Committee; as is

apparent from what they have mentioned in para (4). Otherwise, it would not have been there. In

paragraph (4) they say :

"Parliament may by law prescribe the circumstances under which and the class or classes of cases in

which a person who is arrested.under any law providing for preventive detention may- be detained for a

period longer than three months........ etc."

What is contemplated in clause (4) is-

"Parliament may by law prescribe the circumstances under which and the class or classes of cases in

which a person who is arrested under any law providing for preventive detention may be detained for a

period longer than three months and also the maximum period for which any such person may be so

detained."

My amendment is that the exceptions should only apply to a person who is arrested under any law of

the Union providing for preventive detention. I hope this amendment also will be, acceptable to the

Drafting Committee.

My next amendment is No. 112.

"That in amendment No. 1 of List I (Eighth Week) in sub-clause (a) of the proviso to clause (3) of the

proposed new article 15A, the words 'or are qualified to be appointed as' be deleted."

Now clause (3) in its latter portion makes provision for an Advisory Board because it is thought that

when we are trying to detain persons without trial their cases should be considered by some independent

authority, so that there will be some sanction for the executive action by which the liberty of the

individual has been taken away. We have been told of instances where people have to be detained for

long periods. Therefore it has been wisely decided that this should be left at least after three months not to

the discretion of the executive, but the matter should be brought before a Board. Therefore this is a

wholesome provision. My amendment is that I do not want the words--'or are qualified to be appointed

as.' The fundamental idea underlying the Constitution of this Board is that the matter should go before a

judicial tribunal or before any authority which is capable of judiciously thinking, which has got either the

experience or is at present concerned with administration of justice. But to make the provision 'or are

qualified to be appointed as' is dangerous. I can understand that this Board should consist of some High

Court Judges at present working : I can understand if it should consist of some persons who have been

High Court Judges and who therefore can take a judicious view of the question when it is brought before

them.

Shri T. T. Krishnamachari (Madras: General): Will the honourable Member prevent a person like

himself being appointed a member of the Advisory Board ?

Shri H. V. Pataskar: Yes, Once you expand the scope of persons that can be appointed, it is

dangerous. I expect the people will be appointed by the Executive and it will give a loophole in their

hands-not that it is fair that I should charge that the present Executive would be unfair-but the question

remains that if a loophole is kept whereby somebody who might in future be in charge of Government

might take advantage of it and cram the Board with persons who are not fit enough for the purpose.

30

Because a man is a graduate in law according to the provisions at present he can be appointed as High

Court Judge and therefore he can be appointed to this Board. If we leave this loophole it may be abused.

We can get people who are either Judges or who had worked as Judges. Of course there may be some

eminent persons who are not on the Bench or who have not been on the Bench. If this loophole is kept it

will enable an unscruplous executive to nominate persons who may be their own men. We have so many

High Courts Judge and I am sure that a person who has acted in that position is likely to be more

independent and fair than somebody who is unconnected. I need not dilate on this. There may be even

better persons outside the High Courts but it is desirable, that it should consist of persons who have

worked as Judges. It is from that point of view that I have moved amendment No. 112.

To sum up, I would appeal that I have desisted as far as possible from reopening that old controversy

about due process of law. I am happy that Dr. Ambedkar and the Drafting Committee have thought fit to

make amends or as described by him, to compensate regarding what has been lost in the present article

15A. I have no quarrel with the Drafting Committee but the objective with which they have brought

forward this amendment should be carried out in a more satisfactory manner in order that whatever we

have lost by 15 may to some extent be gained by 15A in a manner to allay the fears of those who

unfortunately have at the present moment to suffer on account of several other measures which are there.

I therefore commend that so far as 105 and 106 are concerned, there is absolutely no

difference. between me and the Drafting, Committee regarding the objective. Regarding 105 there is no

difference. Regarding 106 it is consistent with the present provision of the Criminal Procedure Code and I

do not think there is any desire to go behind those provisions in the Cr. P.C. Looking to 106, I think it

should be confined only to first class magistrates. It will be unsafe to rely upon the authority given to

second class magistrates. We have not abolished honorary Magistrates. On the contrary I find there is a

desire to perpetuate them for reasons into which I need not go while discussing this matter. Therefore it is

better to follow the principle which has been followed in the present Cr. P.C. and leave this matter only in

the hands of First Class Magistrates so that there may be some security No. 111 says there must be

uniformity in legislation in respect of such matters. In spite of the fact that this is in the Concurrent List

there is nothing to prevent us from saying that exception shall apply only in cases of persons arrested and

detained under any law passed by the Union. I hope my reasons will appeal to the Drafting Committee.

No. 112 is meant only for ensuring a sort of a feeling in the public that what we are doing is that we

are trying to do our best consistent with the present circumstances which requires such action to be taken,

to do our utmost to see that justice is done and no injustice is done and we are giving fair opportunities to

those who have or are to be unfortunately detained.

I therefore commend my amendments to the acceptance of the Drafting Committee and the House.

Shri R. K. Sidhwa (C. P. & Berar: General): Mr. President, I move:-

"That in amendment No. 1 of List I (Eighth Week), at the end of clause (3) of the proposed new article

15A, the following new proviso be added :

'Provided that in the case of any such person so recommended for detention as stated in sub-clause (a) of

clause (3), the total period of his detention shall not extend beyond nine months provided the Advisory

Board has in its possession direct and ample evidence that such person is a source of continuous danger to

the State and the society'."

31

While going through this article I wanted to know whether it gives any kind of concession or facilities

to thedetenus or it stiffens the present provisions of the laws provided in the Criminal Procedure Code or

the Indian Penal Code.

I think, Sir, that this article now proposed does not give any kind of concession or facility to

the detenus. I do feet that while the present laws are not stiffened, there is nothing in this article which

should find a place in the Constitution. In a matter like this, the laws must be flexible so that according to

the times, the laws may be framed according to the conditions prevailing in the country. We have, under

the existing conditions to consider the state of affairs, namely peace and tranquility and law and order,

and from that point of view we cannot bind down the Constitution with rigid laws which may not be

really desirable during the time when the peace of the country is in danger. Sir, I find that clauses (1) and

(2) are reproductions of the Criminal Procedure Code, as has been stated by many honourable Members

here. Clause (3) provides for the Advisory Board. Such advisory board already exists and it may exist in

the future also. In the past the detenus were asked to give explanations, if they have any, and the Advisory

Board, comprising of High Court Judges used to give their opinions to the respective governments. There

is nothing new in this article even as far as the provision of the Advisory Board is concerned.

And clause (4) says that despite what is stated therein, Parliament may make laws and the period of

three months' detention may be increased. My amendment says that when an Advisory Board is

appointed, it should be seen that the aggregate, continuous detention of a detenu is not more than nine

months. If it exceeds this period, then there should be definite evidence before the Advisory Board that

the person detained is a danger to society, that he is a pest to society and that he is out to destroy our

freedom. I am certainly agreeable to making any kind of law for dealing with a person who is out to

destroy our well-deserved freedom by violent methods. He should have, from my point of view, no

quarter or no kind of protection. I am quite clear about that point. At the same time, I must say that

persons detained on suspicion should be given the fullest protection, and from that point of view, I do not

find in this article any provision for that purpose. On the contrary, I find, from all sources his hands have

been tied down. We know, Sir, during the British regime, detenus were put into prisons and the then

legislature made law, that the maximum period should not be more than one year, which subsequently

was enhanced to two years. In this article no maximum period is laid-down and a person can be detained

for an indefinite period. The Advisory Board may say that the detention should be continued. Today what

happens is this. The detenu is asked whether he has to say anything against his detention. That is all. And

on a statement by the accused, with C. I. D. report the judges give their opinion. My own feeling is that

whatever the charges way be, whatever the evidence may be against the detenu, they should be supplied

to 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 exporte decisions by the judges on a mere

statement from the C. I. D. and the detenu. He will certainly ask you, "For what purpose do you detain

me? Please let me know the charge under which you detain me. You ask me for an explanation. I say, I

am not guilty of anything, and so please release me." And the judges, on the other hand, say "There are

good reasons for detaining you and so you must be detained for an indefinite period. That is not fair. I do

not find any improvement made in this article. I do realise the conditions existing at present in the

country, and for that purpose there should be some specific mention. But the whole thing should not be

left to the discretion of the judges. I feel that the charges for detention should be made public. The

Advisory Board should say that such and such person has been detained because he is a danger to society

and he is out to destroy the freedom of the country. By this method the confidence of the people will be

gained. They will come to know that such and such a person deserves to be detained for an indefinite

period. It may be that for certain purposes and in certain cases you may have to keep certain information

secret. But in the case of detention of such persons, you must make the grounds public. Otherwise the

people will begin to have many doubts and suspicions as to why such and such person is detained.

32

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 15 A in the Constitution.

Parliament is there and Parliament makes the law and Parliament will see what are the conditions in the

country and what is the state of affairs from time to time and make laws. But why do you put down such a

clause in the Constitution ? It may become harmful to the State if you provide such an article in the

Constitution. You may require something very deterrent. But why do you want to put it in the

Constitution? Why not leave it to Parliament. The person detained may be quite innocent. After all, the

machinery of the State is composed of officials and we know the mind of the officials. Officials, after all,

are officials. They have a particular line to follow and from that point of view it is very likely that even

under a democratic government, most of the laws would be abused. Therefore, under the existing

circumstances, a detenu, if be is detained on mere suspicion, should be properly protected .That is my

point. I have no sympathy, as I have said, and I repeat it, for the man is out to destroy our freedom. He

must have no quarter. I again repeat that, and from that point of view, and for that purpose if you want to

add to this article any stringent law, I am with the Drafting Committee; but not for other purposes. We

know that even today for peaceful demonstrations and for such other matters persons have been detained

by officials, and then subsequently the Ministers have realised that it is not a wise course and they have

been released. As I said, no improvement has been made in this article. After all, when you make a

provision, when you provide an article, some concession or some liberty is given to the person, and for

that purpose articles are provided.

Mr. President : You are repeating yourself.

Shri R. K. Sidhva: Therefore, Sir, my object in bringing this amendment is what I have

already state.Icommend my amendment for the acceptance of the House.

Dr. Bakshi Tek Chand (East Punjab: General) : Sir..........

Mr. President: There is one amendment which Dr. Bakshi Tek Chand is going to move I do not know

if Members have got copies of it, but I hope he will read it out.

Dr. Bakhshi Tek Chand : Sir, I move.

"That in the proviso to clause (3) of article 15A, the following new clause be added:--

'(aa) As soon as may be after the arrest of the Person, the grounds on which he has been arrested shall be

communicated to him, and he shall be informed that he may submit such explanation as he desires to

make which shall be placed before the Advisory Board referred to in sub-clause (a)'."

33

Sir, it is a very modest amendment and I hope in article 15A, attenuated as it has been,

Dr. Ambedkar will accept and incorporate it in the article. The amendment goes no further than what is

provided in the Safety Acts that have been enacted by some of the Provincial Legislatures. For instance

clause (3) of the Madras Maintenance of Public Order Act (1 of 1947) lays down :

"When an order in respect of any person is made by the Provincial Government under sub-section (1) of

section 2. etc., the Provincial Government shall communicate to the person affected by the order. so far as

such communication can be made without disclosing the facts which they consider would be against the

public interest to disclose, the grounds on which the order has been made against him and such other

particulars as are in their opinion sufficient to enable him to make, if he wishes, a representation against

the order. And such person may, within such time as may be specified by the Provincial

Government. makea representation in writing to them against the order, and it shall be the duty of the

Provincial Government to inform such Person of his right of making such representation and to afford

him opportunity of doing so.

(2) After the receipt of the representation referred to in sub-section (1). or in case no representation is

received after the expiry of the time fixed therefore. the Provincial Government shall Place before the

Advisory Council constituted under subsection (3) the grounds on which the order has been made. and in

case such order has been made by an authority or officer subordinate to them. the report made by him

under sub-section (2) of section 2. and the representation. if any, made by the person concerned, etc.. etc."

I need not repeat the remaining sub-sections of that section. This is the provision in the Madras Act.

Similar Provisions were to be found in the Rules made under the Defence of India Act.

Many honourableMembers of this House, who had been proceeded against in 1942 and in the following

years under the Defence of India Rules, will remember that the substance of the grounds on which they

were detained were communicated to them and they were asked to make representations, if they chose to

do so.

Similar provisions existed even under the notorious Rowlatt Act passed in 1919, as a protest against

which our revered leader, Mahatma Gandhi, started the great movement which ultimately culminated in

the liberation of the country from foreign yoke.

In England under the Regulations framed under the Defence of Realm Act, both in 1914 when the first

World War broke out and the Defence of Realm Act was enacted, and later again in the Regulations

which were in force in 1939 when a state of grave emergency was declared and arrests or detentions

began to be made in that country, similar provision existed.

As I have already stated, in Madras Act 1 of 1947 called "the Madras Maintenance of Public Order

Act", similar provision has been made. In similar Acts in other Provinces, for instance in Bombay, there is

provision to the limited extent that the substance of the grounds on which a person is arrested and

detained shall be communicated to him and he will be asked to submit, if he likes, an explanation. But

there is no provision that his explanation will be laid before a tribunal or any other independent Board.

The explanation is only for the consideration of the executive government which may, after considering

it, either release him or confirm the previous order or order his detention for such longer period as it

thinks proper. In the United Provinces also, while there is provision for an explanation of the person

affected being taken, there is no provision for its being placed before an impartial tribunal. And in Bengal

the latest Act is narrower still.

34

I submit this procedure is open to serious objection and it is necessary that Constitutional guarantees

be provided, so that the legislatures of this country provincial or central--are precluded from enacting

legislation of this kind. We should see that our legislature do not go farther than what the British Indian

Government did under the Rowlatt Act or the Defence of India Act in 1942 or what was done under

the Defence of Realm Act in England.That, Sir, is the, sum and substance of the amendment which I have

moved.

Dr. Ambedkar, in the amended article 15 A as he has introduced today, has made provision in clause

(3) of the article that "an Advisory Board consisting of persons who are or have been or are qualified to

be appointed as judges of a High Court has reported before the expiration of the said period of three

months that there is in its opinion sufficient cause for such detention". Of what value will the opinion of

this tribunal be, if the explanation of the person affected is not laid before it? It will be an exparte opinion

expressed by the members of the tribunal upon such papers as may be placed before them by the

executive government, which, in most cases will be based either upon police reports or reports of other

officials or informers. The whole object of constituting a tribunal of three persons, who are High Court

Judges or who have been High Court Judges or who are qualified to be High Court Judges, will be

rendered nugatory if the explanation of the person affected is not taken and placed before it. And no

explanation can be given by that person unless he is informed of the nature of the charges against him

whether it was merely on suspicion or upon some solid ground that he had been arrested and was being

detained. I submit that this is an elementary right which should be conceded Perhaps, this is an omission

in Dr. Ambedkar'samended article, and if so, he will, I hope, supply it by accepting this amendment.

With your permission, Sir, I will now make a few general observations on article 15A as it has been

introduced by Dr. Ambedkar today, and then I shall say a few words with regard to some of the

amendments which have been placed before the House by Pandit Thakur Das Bhargava and

other Honourable Members. I feel--and I may be pardoned for saying categorically that I consider article

15A as the most reactionary article that has been placed by the Drafting Committee before the House, and

therefore I would ask the House to reject it altogether and not allow it to form a part of the Constitution. I

will ask Dr. Ambedkar and I will ask Mr. Munshi and I will ask our great

jurist Shri Alladi Krishnaswami Ayyar whose knowledge of constitutional law is perhaps second to none

in this country, and who has contributed so much to the drafting of this Constitution, if there is any

written Constitution in the word in which there is provision for detention of persons without trial in this

manner in normal times. In the case of a grave emergency, as for example when the country is involved in

war, there are provisions even for suspension of the fundamental rights. But apart from that, I have looked

in vain in any Constitution for a provision for such detention without trial in peace times. It is not to be

found even in the Japanese Constitution, which the Drafting Committee purports now to follow. That

Constitution was prepared for Japan in 1946, it a time when that country having been defeated and lay

prostrate under the heel of a dictator appointed by the conquering powers, the United States and the other

Allied Nations.

I consider that this article, in the form in which it has now been framed instead of being a fundamental

right of the citizen, is a charter to the Provincial legislature to go on enacting legislation under which

persons can be arrested without trial and detained for such period as they think fit subject to a maximum

period fixed by Parliament.

It does not give any fundamental right to the people. In fact it is a charter for denial of liberties, and I

am surprised to find how the Members of the Drafting Committee including great lawyers, have

subscribed to it. It is strange, indeed, how the Members of the Drafting Committee have drafted from the

position which they bad originally taken to the submission of the present article 15-A. Sir, with your

permission, I will place the history of this article before the House which will show how the Members of

35

the Committee have come down from the high place at which they were at the beginning to the position to

which they have ultimately come and which they want the House to adopt.

Our Law Minister, Dr. Ambedkar, a great lawyer, an eminent jurist, an erudite student of constitutional

law as he is--what was the proposal that he submitted to the Drafting Committee before he had been

appointed to the high office which he now occupies ? In 1947, soon after the Constituent Assembly met

first, members were asked to submit their suggestions for the draft Constitution. A number of suggestions

came. Dr. Ambedkar at that time was a private Member of this House; he had not been installed on

the gaddi which he is occupying now and which, if I may say so with respect, he is so worthily

occupying. Early in 1947 he submitted this note, which be circulated in the form of a book styled, "States

and Minorities-What are their rights and how to secure them in the Constitution of Free India", by B.

R. Ambedkar. At page 9, article 2, are his suggestions headed, "Fundamental Rights of Citizens", this

article reads as follows :

"No State shall make or enforce any law or custom which shall abridge the privileges or immunities of

citizens. Nor shall any State deprive any Person of life. liberty and Property without due process of

law, nor deny to any person within its jurisdiction equal Protection of law."

This is the suggestion which Dr. Ambedkar submitted to the Advisory Committee of the Constituent

Assembly early in March 1947. That was his opinion as a private Member.

Then we come to the Second stage of the consideration of this matter by the Advisory Committee of

the Constituent Assembly. As you know, the Advisory Committee on Fundamental Rights and Minorities

was one of the earliest Committees appointed by the Constituent Assembly and Sardar Vallabhbhai Patel

was its Chairman. The Committee consisted of a large number of Members including three of the most

prominent Members of the Drafting Committee, namely Dr. Ambedkar,

Mr. Munshi and Shri Alladi Krishnaswami Ayyar. This Committee submitted its report on the 23rd of

April 1947 recommending the adoption of certain fundamental rights by the Constituent Assembly. In this

report also this "due process of law" clause figured prominently. The report of this Committee came up

for consideration before the House in April 1947, and we find from the Reports of the Committees, (First

Series) issued by the Constituent Assembly office that at page 28 a List of what are called

"justiciablefundamental rights." Article No. 9 at page 29 is as follows :

"No person shall be deprived of his life or liberty without due process of law, nor shall any person be

denied equality before the law within the territory of the Union. This was the considered decision of this

House and the Drafting Committee was directed to draft the Constitution on these lines."

Now, what did the Drafting Committee do ? It met, considered the matter, and ultimately produced this

Draft Constitution which was circulated to the Members in February 1948. There in article 15 instead of

submitting a draft on the lines of the resolution of April 1947 which I have just now read, it suggested the

following article :

"No person shall be deprived of his life or personal liberty, except according to Procedure established by

law. Nor shall any person be denied equality before the law or the equal protection of the laws within the

territories of India."

So, instead of the words "due process of law" which, as I shall presently show, have acquired a certain

fixed meaning both in England and in America, as a result of the struggle for liberty against the Executive

which went on there for centuries, the Drafting Committee put in the words "according to procedure

established by law." There is a footnote appended to it in the Draft Constitution. The footnote says :

36

"The Committee is of opinion that the word "liberty' should be qualified by the insertion of the word

"Personal" 'before it, or otherwise it might be construed very widely so as to include even the freedoms

already dealt with in article 13.

The Committee has also substituted the expression 'except according to procedure established by law'

for the words 'without due process of law' as the former is more specific (c.f. Art. 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.'"

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.

Mr. President: I was not present during the discussion when article 15 was adopted, but I hope this

whole question would have been discussed at great length and as a result of that discussion the article in

the form in which it has found its place would have been passed.

Dr. Bakhshi Tek Chand: I won't take very long, Sir.

Mr. President: I am not objecting to your speaking. I Was only asking whether this question was not

discussed at great length.

Dr. Bakshi Tek Chand: Sir, it was discussed. But Dr. Ambedkar promised to place before the House

an amended article, and he, on behalf of the Drafting Committee, has proposed the present article 15-A.

As I was saying in the Magna Carta the words were "no person shall be arrested, etc.. except according to

the law of the land". That was the expression originally used. Later, it was incorporated in the Statute of

Edward III in the words, "no person shall be arrested without due process of law". Centuries later when

the American Colonies bad separated from England and they framed their own Constitution, in the 14th

Amendment to that Constitution they put in the words :

"Nor shall any State deprive any person of his liberty or property without due process of law, nor deny

to any person within its jurisdiction equal protection of the law."

Many Judges of the Supreme Court have said that this clause has been the bulwark of the liberty of the

people of the United States. It has been said that there is no other single clause in the Constitution which

has done so much to preserve the liberty and the rights of the people as this particular clause apparently

and it was from the American Constitution that Dr. Ambedkar had copied it in his original draft which he

submitted to the Advisory Committee.

There are various decisions of the courts of America. But the best exposition of it is by a great

American lawyer Webster as to the meaning of the expression "due process of law", who said that "due

process of law means the law which hears before it condemns; a law which proceeds upon enquiries and

a law which renders judgment after trial". These are the three essentials that you will not condemn a

37

person before hearing him; you will not proceed against him 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 criminal penalty be imposed, except according to procedure established by law."

This article 31 has been taken verbatim in our Draft Constitution. But in the Japanese Constitution

there are other clauses, which embody the substance of the 'due process of law' clause and safeguard the

rights of the subject, but which, unfortunately, find no place in our Draft Constitution. I shall read those

articles:

"Article XXXIII. No person shall be apprehended except upon warrant issued by a competent judicial

officer which specifies the offence with which the Person is charged, unless he is apprehended while

committing a crime.

Article XXXIV. No person shall be arrested or detained without being at once informed of the charges

against him or without the immediate privilege of counsel; nor shall he be detained without adequate

cause; and upon demand of any person such cause must be immediately shown in open court in his

presence and the Presence of his counsel.

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 only for probable cause, and

particularly describing the place to be searched and things to be seized, or except as provided by article

XXIII.

Each search or seizure shall be made upon separate warrant issued for the purpose 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.

38

He shall be permitted full opportunity to examine all witnesses, and he shall have the right of

compulsory process for obtaining witnesses on his behalf at public expense.

At all times the accused shall have the assistance of competent counsel who shall. if the accused be

unable to secure the same by his own efforts' be assigned to his use by the Government."

These are the additional provisions in the Japanese Constitution. They form one consistent, integrated

whole, and incorporate the pith and substance of the phrase 'due process of law'. But what our Drafting

Committee has done is to copy article XXXI only, and exclude from the Constitution of Free India

anything corresponding to articles XXXII to XXXVII, which provide all the safeguards to ensure a fair

trial, and to see that a person is not detained without being told as to what the cause of arrest is and

without trial. Can it be said that this omission has been made for the sake of securing precision of

expression only ?

When this clause came up for discussion before the House on 6th December 1948 an amendment was

moved suggesting that the words "due process of law" be substituted for the words "according to

procedure prescribed by law". The strongest supporter of this amendment at that time was our esteemed

Friend Mr. Munshi. His speech on that occasion is to be found on page 851 to 853 of the proceedings of

this House dated 6th December 1948, and I want to read portions from it.

Shri H. V. Kamath : Mr. President the honourable Member is awaiting your attention.

Mr. President: The honourable Member may proceed.

Dr. Bakhshi Tek Chand: I will read only a few sentences from that speech. Mr. Munshi said:

"I know some honourable Members have got a feeling that in view of the emergent conditions in this

country this clause, may lead to disastrous consequences. With great respect I have not been able to agree

with this view."

* * * *

"We have unfortunately in this country legislatures with large majorities facing very severe problems,

and naturally, there is a tendency to Pass legislation in a hurry which give sweeping powers to the

executive and the police. Now, there will be no deterrent if these legislations are not examined by a court

of law. For instance I read the other day that there is going to be a legislation, or there is already a

legislation, in one province in India which denies to the accused the assistance of lawyer. How is that

going to be checked ? In another province I read that the certificate of report of an executive authority-

mind you it is not a Secretary of a Government, but a subordinate executive--is conclusive evidence of a

fact. This creates tremendous difficulties for the accused and I think, as I have submitted, there must be

some agency in a democracy which strikes a balance between individual liberty and social control."

"Our emergency at the moment has perhaps led us to forget that if we do not give that scope to

individual liberty, and give it the protection of the courts. we will create a. tradition which will ultimately

destroy even whatever little of personal liberty which exists in this country. I therefore submit, Sir, that

this amendment should be accepted."

Now, this was the position of Mr. Munshi. Why has he changed now?, I will next refer to the speech

which Dr.Ambedkar himself delivered in this House on the 13th December 1948. That speech is printed

on pages 999 to 1001. I will not read the whole of it, but only three or four sentences from page 1000-

39

"The question of "due process" raises, in my judgment, the question of the relationship between the

legislature and the judiciary. In a federal constitution. it is always open to the judiciary to decide whether

any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of

legislation which are granted by the Constitution to the particular legislature. If the law made by a

particular legislature exceeds the authority of the power given to it by the Constitution, such law would

be ultra vires and invalid. That is the normal thing that happens in all federal constitutions."

Further he says-

"The "due process" clause, in my judgment, would give the judiciary the power to question the law

made by the legislature on another ground. That ground would be whether that law is in keeping with

certain fundamental principles relating to the rights of the individual. In other words. the judiciary would

be endowed with the authority to question the law not merely on the ground whether it was in excess of

the authority of the legislature, but also on the ground whether the law was good law. apart from the

question of the powers of the legislature making the law. The law may be Perfectly good and valid so far

as the authority of the legislature is concerned. But it may not be a good law, that is to say, it violates

certain fundamental principles; and the judiciary could have that additional power of declaring the law

invalid."

These were the views of Dr. Ambedkar in December last. Why has her changed since? I shall not refer

in detail to the speech of Shri Alladi Krishnaswami Ayyar in that debate. It was directed mainly in

expounding the uncertainty of the meaning of the expression "due process of law", but he gave no

substantial reasons why it should not be used in relation to 'personal liberty', as was sought to be done in

the amendment.

Sir, that phrase is now sought to be substituted by the phraseology of Act XXXI of the Japanese

Constitution, in article 15 of our Constitution, without the safeguards which that Constitution has

incorporated in Act XXXII etseq 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 DasBhargava pointed out, as far as the

Criminal Procedure Code does today. The article then provides for an Advisory Board or Tribunal which

will, within three months, advise the local governments as to whether the grounds on which a person is

arrested are sufficient for his further detention. But in the draft placed before the House today there is no

provision that the person affected will be given an opportunity of being told what the grounds for his

detention are. No doubt you have Judges of the High Court on this Board, but what can the Judges do

unless they hear the other side? They will only pass judgment ex parte. Therefore I submit that this

provision is very defective. It is no protection at all. It is only intended to make a show that some sort of

protection is given. I submit with great respect that this is not the proper way of dealing with this

question.

I will now make a few more remarks with regard to some of the amendments. I do not want to carry

my speech today after tomorrow. If the article is to be retained at all, the three amendments which have

been suggested by the previous speakers should be accepted. First of all is the alternative amendment

moved by Pandit Thakur DasBhargava which is printed at page 4 of List I, which says that at the end of

clause (2) of the proposed new article the words "and for reasons to be recorded" be added. If a man is to

be arrested and remanded to custody, the Magistrate must record his reasons in writing. I do not think

there can be any objection to this being incorporated in the Constitution. Then there is the other

amendment by Pandit Thakur Das Bhargava that indiscriminate arrests should not be permitted. If we are

40

copying the Japanese Constitution, then let the provisions of article XXXV of that Constitution be also

included. If the executive has to have this power of arrest and detention, then at least let the person

affected have an opportunity of submitting his explanation. This is all that I have to submit on the

amendment.

One word more, Sir. So far I have drawn your attention to the various Constitutions of the world,

English, American and Japanese. I will now make a reference to the Charter of Human Rights which is

now being considered by the United Nations Assembly. As honourable Members are aware, to the

Committee dealing with this matter, our country had also sent a delegate.

Prof. N. G. Ranga (Madras: General) : Into how much of detail are we being taken in this matter?

Mr. President: He is now completing his argument.

Prof. N. G. Ranga: He said he would complete it twenty minutes ago.

Dr. Bakhshi Tek Chand: My honourable Friend Prof Ranga who has just come from America, does

not want to hear anything about the Charter of Human Rights. He is welcome to have that opinion., I shall

read only two or three lines.

Shri Mahavir Tyagi: It is quite important.

Dr. Bakhshi Tek Chand:

Article 3 provides : 'Everyone has the right to life, liberty and security of Person.

Article 7.No one shall be subjected to arbitrary arrest or detention.

Article 8.In the determination of his rights and obligations and of any criminal charge against him

everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal.

Article 9.Everyone charged with a penal offence has the right to be presumed innocent until proved

guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

2. No one shall be held guilty of any offence on account of any act or omission which did not

constitute an offence, under national or international law at the time when it was committed."

I will read nothing more. This is the substance of Fundamental Human Rights for civilized nations.

But in our Constitution are we going to incorporate provisions which lay down that persons can be

arrested and detained without trial for three months, then there will be a sort of make-believe examination

of the case by a tribunal which will give its opinion on ex parte examination of such papers as the

executive might place before it and then the person concerned can be kept in further detention for any

length of time ? In some provinces it was originally six months, then it was varied to one year and then

again to three years In one province they can detain indefinitely. Are you going to incorporate such

provisions in the first Constitution framed by Free India; so that when people compare this Constitution

with those of other countries, they will say : "Here is a country which permits its legislatures to frame

laws of this kind"? Will it. I submit, not be better to omit it altogether and leave it to the good sense of

future Parliament or the good sense of the various Provincial legislatures to pass such laws as they like,

and not to disfigure our Constitution with a provision like Act 15A.

41

Shri Alladi Krishnaswami Ayyar (Madras:, General) : Mr. President, my honourable Friend

Dr. Bakhshi TekChand has gone over the whole ground which has been travelled at length by this House

when it came to a conclusion after a very full debate and after an adjournment of the House that the

expression "due process" must disappear from the article for the reasons which were then considered by

the House at length. I do not propose again to repeat what I have said on that occasion. I might mention

that the main reason why "due process" has been omitted was that if that expression remained there, it

will prevent the State from having any detention laws, any deportation laws and even any laws relating

to labour regulations. Labour is essentially a problem relating to persons and I might mention in the

United States Supreme Court, in the days when the Conservative regime dominated the U.S.A. politics,

enactments restricting the hours of labour constituted a violation of the "due process of law". An

American would be employed for five hours, ten hours or twenty hours and make a slave of himself and

yet it was held to be interfering with due process of law if there was a restriction of the hours

oflabour 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 fairplay 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 Procedure Code and that finding a place in a constitutional statute is that where as the Criminal

Procedure Code is liable to alteration by the State Legislature or by the Central Legislature, when once it

finds a place in the Constitution it cannot be changed excepting in the manner provided for the change of

the Constitution. Therefore certain very important provisions which go to the fundamental principles are

taken into article 15A. Therefore, I do not think any exception can be taken to, those two clauses. There

are corresponding provisions in the Criminal Procedure Code and they are now transferred practically into

a constitutional provision in order to prevent any change being made by any legislature in regard to those

provisions because they were regarded as fundamental.

Then the next question is if you guarantee personal liberty in the Constitution either by the use of the

words "due process" or "procedure" or any such thing the State will be hampered even with regard to

detention and in regard to deportation. It is agreed on all hands that the security of the State is as

important as the liberty of the individual. Having guaranteed personal liberty, having guaranteed that a

person should not be detained or arrested for more than 24 hours, the problem necessarily had to be faced

as to detention, because detention has become a necessary evil under the existing conditions of India.

Even the most enthusiastic advocate of liberty says there are people in this land at the present day who are

determined to undermine the Constitution and the State, and if we are to flourish and if liberty of person

and property is to be secured, unless that particular evil is removed or the State is invested with sufficient

42

power to guard against that evil there will be no guarantee even for that individual liberty of which we are

all desirous. That is the object of the provision.

What do those provisions say ? You cannot detain for more than three months unless the matter is

placed before some kind of tribunal. The tribunal is to consist of people who are qualified to be judges of

the High Court. Are we to say that a retired judge is eligible, but not a distinguished member of the Bar

who might not have a chance of becoming a Judge of the High Court is eligible for a place in that Court

? If there is sufficient public spirit, I have no doubt members of the Bar who might have retired from the

Bar or who might not have occupied the position of judges are eligible to be members of such tribunals,

and it cannot be said that a person simply because he has not occupied a position of a judge is not good

enough to be a member of the tribunal or to take a dispassionate view of the situation. Therefore,

normally speaking, the tribunal will consist of people who were judges or people who are fit to be judges,

and people of high character. And after all, there are judges and judges,The one reason why we say that

that it is better to have. judges is that they have security of tenure; they occupy a particular place in

society and they are accustomed to deal with cases from a detached point of view and it is better to have

these people as members of the tribunal.

You need not put an embargo on people who may take an impartial view of the question, who may be

guided by principles of justice and fair play,. from being members of this tribunal, because they never

happened to be Judges. I believe there is a sufficient number of people in this country who are fit to be in

the tribunal other than Judges or people who are retired Judges. Imagine a man like

Sir Tej Bahadur Sapru being alive and he being ineligible to be a member of the tribunal. I would have

welcomed him as a member of the tribunal. The other day, Mr. Venkatarama Sastri was a member of the

Board. A leading member of the Bar, who has occupied the position of Advocate General, he was a

member of a Board which was constituted in Madras. He sat along with Judges who are much junior to

him and possibly who could have sat under him and learnt some bit of law when they were at the Bar.

Under those circumstances, we need not introduce a cast-iron provision to the effect that the members

shall be only judges. There is absolutely no reason to believe that the members would not give an

opportunity to the person before being satisfied that there is a case for detention if it is more than three

months. Therefore, at any particular time, a person can only be detained for three months.

Beyond that time, there must be the imprimatur of this special tribunal which will take into account all

the circumstances of the case, examine all the materials placed before them and come to the conclusion

whether there is a satisfactory ground or not. Normally, I have absolutely no doubt that they will give

notice to the party in every case. To say that you must give notice, it might be to surrender the very

principle. There are cases where it is not susceptible of exact proof, but there are materials from certain

quarters which will carry conviction to any impartial mind. At the same time, these people who are

concerned in subversive activities, sometimes take care to see that no sort of evidence is preserved.

Therefore, it is to provide against these extreme cases this provision is made. On the other hand, if you

say that in every case there shall be notice, there shall be a charge, there shall be a hearing, that there shall

be examination and cross examination, there shall be counsel, then this Board may convert itself into a

magistrate's court with all the paraphernalia of the magistrate's court, and it will defeat the very purpose

of the article. This is the object of saying that you must have competent men with a fair sense of justice,

trained in the law. It is such people that will be there in the Board. After all, it will be very difficult for a

lawyer who has been a Judge to get rid of his legal mode of approach. That is the reason for having a

tribunal.

Beyond that, Parliament will intervene. Otherwise, that procedure is to be followed. There might be

cases when Parliament will have to consider whether detention for more than the period referred to is

called for in the interests of the State. Parliament which is elected on universal adult suffrage will have to

43

pass, a law. There are other guarantees in the Criminal Procedure Code (other than the Constitutional

guarantees above referred to). The provisions of the Criminal Procedure Code are nowhere repealed or

modified. The Constitutional guarantees constitute a minimum with which the legislature itself cannot

interfere. The provisions in the criminal Procedure Code are liable to alteration by the legislature whereas

this provision is not liable to alteration. Therefore, the question is which are the minimum rights that have

got to be secured.

I do not think my honourable Friend. Mr. Tek Chand can show any Constitution which contains all

these provisions. I am quite willing to throw out a challenge to him to show any well known Constitution,

which contains all these detailed provisions. I venture to say there is none. There is no known

Constitution which contains such detailed provisions, transferring all these provisions of the Criminal

Procedure Code into their Constitution so that they may hamper the action of the legislature, the action of

the courts, which will become the battle-ground for lawyers. Therefore,

the Honourable Dr. Ambedkar has taken care to put in what may be considered to be the fundamental

principles into article 15A. The other guarantees are there, the guarantees under the Criminal Procedure

Code. There is no intention of interfering with the provisions of the Criminal Procedure Code. Both these

could be exercised side by side, the Criminal Procedure Code and the Constitutional guarantee. I thought

of stating more; but I do not want to take more of the time of the House. It is better that the matter is

finished as soon as possible. That is the reason why I refrain from taking more time of the House.

Shri H. V. Kamath: May I request, you, Sir, to be so good as to throw some light on the duration of

thissession ?

Mr. President : I have myself been considering that matter. There are certain matters which have to

be held over for another session which will have to be held in October. The question is what we can

dispose of now and what is to be held over for the October session. We have been considering the details

and I think I shall be able to announce in the House tomorrow the details of the provisions which will

have to be held over for the October session and those which we want to dispose of in this session. If we

are able to get through our work quickly, we propose to finish this session by Saturday next. But, if by

any chance, we axe not able to do it, we may have to o over to the next day or the day following.

An honourable Member: The next day will be Sunday.

Mr. President: I do not know: if Members would sit on Sunday, I have no objection. Or we may sit

on Monday.

Shri K. M. Munshi (Bombay: General) : We may sit on Sunday, both morning and evening and finish

it.

Pandit Lakshmi Kanta Maitra (West Bengal: General.) : The difficulty with some of us, orthodox

Members is that we have got the Mahalaya ceremony which comes off on the 22nd.

Mr. President: It is not Monday.

Pandit Lakshmi Kanta Maitra: We have got to go back to our places; we may not be able to find

transport later. If you can finish by Saturday, it will be helpful.

Mr. President: It is in the hands of Members. I shall try to get through the work as quickly as

possible.

44

Shri Deshbandhu Gupta (Delhi) : Sir, when do we reassemble in October ?

Mr. President : As far as I can judge, this is not final, this is only provisional, we must begin about

the 7th.

The Honourable Shri Satya Narayan Sinha (Bihar: General) : Not earlier than the 10th, Sir.

Mr. President : Then there will be no time. We have a time limit on the other side. Diwali comes off

on the 21st. If we have to complete these articles which will be left over, we must have sufficient time

before we rise forDiwali Therefore, we have to begin the October session as early as possible. It all

depends on the number of articles left over. Therefore, I said I would be able to say this with a little more

definiteness tomorrow.

An honourable Member: If everybody speaks on every article, it may take two months.

Mr. President : I cannot prevent that.

We have got several time limits. We must finish the third reading at the, latest by the 18th of

November. For that purpose, we are thinking of beginning the session for the Third Reading on the 7th of

November, so that we may get about ten days for the Third Reading. Between the beginning of the Third

Reading and the ending of the Second Reading, the Drafting Committee would naturally require some

time to put the things in order, as renumbering, of the paragraphs, correcting of errors, getting the, thing

printed and placing the whole Constitution in the hands of the Members in time for their consideration on

the 7th of November. Therefore, it is necessary to complete the Second Reading pretty well in advance of

the beginning of the Third Reading. Therefore I am suggesting that if we start, say, about the 7th October,

we would be able to complete the Second Reading by about the 18th or 19th October and then we give

them a fortnight for completing their revision and for printing and distributing to Members, so that we

might start the Third Reading on the 7th November. These are the variousdead lines which we may not

cross and therefore it is necessary to fit in the whole programme within this time.

The House will now stand adjourned till Nine tomorrow.

The Assembly then adjourned till Nine of the Clock on Friday, the 16th September 1949.

------------------------------------------------------------------

*[Translation of Hindustani speech.]*

Friday, the 16th September 1949

-------------

The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Nine of the Clock, Mr.

President (The Honourable Dr. Rajendra Prasad) in the Chair.

-------------

45

DRAFT CONSTITUTION- Contd.

New Article 15 A- Contd.

(Shri Jaspat Roy Kapoor rose in his seat.)

Mr. President: Do you want to say anything?

Shri Jaspat Roy Kapoor (United Provinces: General) : Sir, I want to speak on article 15A.

Mr. President : Yes, we shall continue the discussion of article 15A. Mr. Jaspat Roy Kapoor.

Shri Ram Sahai (Madhya Bharat) : *[Sir, I would like to know if you could give us an idea of the

remaining programme of the House. It would have been convenient to us if you had made an

announcement in this connection at the time the Assembly commenced its sitting today. I may draw your

attention, to the fact that you had told us, you would be making this announcement today.]*

Mr. President : *[I did not make the announcement in the beginning on account of certain

difficulties.] I would request Members not to prolong the discussion, because, after all, it deals with a

subject whichwas discussed in the last session at great length, and we want to get through all this within

today and tomorrow, if possible. If all this is discussed and finished, tomorrow there are certain other

items which will come in later, namely, the Preamble and the first article.

Shri T. T. Krishnamachari (Madras: General) : The Preamble won't be taken up now, but at the end.

Mr. President: Very well. The first article will come, and we shall have also the Bill. The House now

knows the amount of work which has to be gone through between today and tomorrow and if you take

that into consideration, I hope the Members will curtail the discussion as much as possible so that we

might finish the discussion tomorrow and end the session tomorrow.

Shri Jaspat Roy Kapoor : Sir, I assure you that, I will scrupulously respect your wishes in fact it is

no pleasure to refer to article 15A, the whole article is jarring to the ear and is one more illustration of the

conservatism which characterises the chapter on Fundamental Rights. 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.

I will only refer to four or five points. There are, firstly, two clause of persons who may be arrested

:(1) those arrested on a specific charge, and (2) those who are to be detained, not for any specific offence,

but because their detention is thought necessary in the interests of the State. With regard to the first class

of persons, they are being given no new rights whatever. The article says that no person shall be arrested

without the authority of a magistrate. But that right every citizen has got under the Criminal Procedure

Code. It may be said that that Code can be changed by Parliament or even by the provincial legislature.

But still, trusting in the good sense of the legislatures as we do, we may take it that they are not going to

provide for detention, even on a specific charge, beyond 24 hours without the authority of a magistrate.

Therefore, the right conceded here is one which the citizen already enjoys. It is further provided that he

shall be produced after 24 hours of his arrest before a magistrate. That provision also appears in the

Criminal Procedure Code. Therefore this article confers nothing that is new or guarantees nothing which

any legislature would not provide for.

46

With regard to the second class of persons, i.e., 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 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

bevery 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 (Bihar : General) : Is it a fact that lie 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. 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

47

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 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 varioussatyagraha 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 bad, 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 detenusare! 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 (Madras: General): I would have very much liked to retain the

words "due process of law" in the original article itself, but unfortunately our other friends differed and

ultimately the House accepted the change of expression "procedure prescribed by law".

My honourableFriend, the Chairman of the Drafting Committee himself felt that it was too wide and

therefore there was not that guarantee of expression in article 15 as modified and which might not be a

fundamental right, because Parliament can do whatever it likes. Therefore there is not anything like an

inherent right which Parliament cannot remove. Another fundamental to be incorporated or implemented

in a clause in the Constitution must be such as cannot be taken away by a provision of Parliament except

under exceptional circumstances. That kind of limitation is not there in article 15 as passed. That is why

the Honourable DrAmbedkar and the Drafting Committee have thought it to add these clauses by way of

caution. It is no doubt true that these clauses find a place in the Criminal Procedure Code today but the

necessity of incorporating these in the Constitution itself is this. It might be possible that what is now

prevalent or what now obtains in the Code might itself be modified. As a matter of fact, many of my

friends want some more restrictions to be imposed here, to prevent Parliament later on from modifying

the rules and the Criminal Procedure Code in such a manner that the safeguards might be taken away. For

instance, exception is taken to the words "as soon as may be". They want it to be done within 24 hours. I

find there is a practical difficulty in this matter. Under section 107 of the Criminal Procedure Code, as

soon as a man is arrested, he must with reasonable speed be taken before a Magistrate. It does not matter

whether that Magistrate has jurisdiction over that case or not. There is that lacuna. But a Third Class

Magistrate-unless a Second Class Magistrate is empowered-would not be authorised to commit or remand

the prisoner into custody for a period of 15 days. Under the existing Criminal Procedure Code this is a

defect. The man who is not in charge, who will not ultimately take the responsibility for hearing the case

may remand to police custody for a further period of 15 days. There it is. In section 167 it is clear that the

police who make an application that the accused must be further remanded to custody, must lay sufficient

grounds before the Magistrate, the information that they have, the accusation against him, the charges that

will be ultimately developed--all these matters have to be placed before the Magistrate to enable him to

come to a conclusion as to whether it is necessary to remand the accused further for a period of 15 days. It

may be possible for the police officer to give that information straightaway, in which case, the

amendment asking for information within 24 hours is legitimate. But there may be cases where it may not

be possible to give that information. The very object of remanding will be frustrated by giving the

information straightaway within 24 hours. What is the object of remanding a man to custody? It is to

prevent him from tampering with the evidence that might be possible. In very serious cases this is a

handicap. The man accused very often interferes with evidence and makes it impossible for that evidence

to come about.

48

Under these circumstances, I have doubts in my mind as to whether it will be prudent in every case to

give information to the accused within 24 hours of whatever information the police may have. There may

be cases where the police may abuse that power and in their enthusiasm merely on suspicion they may

arrest a person and also desire a remand to custody for a period of 15 days. Here in our own Government,

in a Government where there will be a majority in favour of the popular Government, that Government

may not easily allow such abuses. The balance of convenience is in favour of allowing this clause to

remain as it is instead of substituting it by a period of 24 hours. It may be dangerous to give information

before the evidence is ripe, and can be placed before the Magistrate and the accused.

As regards the suggestion made that at the end of article 15 (a) (i) the words "to consult a legal

practitioner of his choice and also be defended in a court of law" be added, I agree with it. In many cases

we know--as in the 1942 movement--there was more right to cross--examine witnesses.

Shri K. Kamaraj (Madras : General) : If the choice of a person for instance a Communist of the day,

is a Russian lawyer, would you allow it?

Shri M. Ananthasayanam Ayyanger : A Russian lawyer is good for Russia, but a different kind of

lawyer will be good for us. Let us not be prejudiced against lawyers. As a matter of fact, but for lawyers,

this Constitution would not have come into existence. They are contributing a lot to the world. I do not

want to dilate upon this. We can quarrel every day with a lawyer but you cannot get rid of him nor

dispense with his services. More often than not, he is the victim of reproach and unfortunate

misunderstanding. He has done yeoman service to the cause of freedom. Therefore this power or this right

must be conferred by Statute. I would urge upon my honourable Friend, Dr. Ambedkar, whether the right

to be defended by a lawyer and the right of cross examining witnesses ought not to be conferred here. In

cases of emergency, nothing can be done. But normally, this is what ought to be conceded to any person

who is arrested.

There is an amendment which was tabled by my honourable Friend Pandit Thakur Das Bhargava that

there must be a clause to say that the trial must be speedy. The present provisions in the Cr. P. C. are

sufficient and hence there need not be a clause to this effect. In the nature of it the expression "speedy" is

indefinite. What is speedy in one case may not be speedy in another. So such a clause is unnecessary.

I am in favour of making it obligatory that in every case where there is a punishment imposed or a

sentence of punishment made there must be at least one right of appeal, because we cannot entrust the

liberty of a person into the hands of only one individual. The present criminal law has been made with a

view to protect property much more than a person. It is unfortunate that the previous government and

those who conquered us did not value the human personality as much as they did property. That has to be

changed. We are not giving the right of vote according to the property of a man, not even according to his

literacy. Under the Constitution every human being is entitled to vote. Therefore every human being is

entitled to be protected-at any cost : the human personality is sacred. Judging from that standpoint I would

allow at least one right of appeal which should be incorporated in the Constitution itself.

As regards preventive detention my honourable Friend Dr. Bakshi Tek Chand has taken exception to

the provision being made in the Constitution itself. He said that in no constitution in the world such

preventive detention is provided for, meaning thereby that Parliament is not prevented from enacting a

law subsequently, for the purpose of preventing the committal of any offence. It is not by virtue of this

clause that Parliament is clothed with that power. We shall assume that, that power is not here. Unless

you say definitely that there should be no preventive detention would it not be open to Parliament........

49

Pandit Thakur Das Bhargava (East Punjab : General) : According to the present section the

Parliament will not be able subsequently to enact that any person can be detained for less than three

months. This gives power for three months practically to the local executive to put a man in prison

without his being brought to trial. The Parliament subsequently will not be able to tamper with the period

of three months. That is the difficulty.

Shri M. Ananthasayanam Ayyangar: The provision reads:

"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."

From this I do not read that Parliament would not be empowered to change even the period of three

months. All that it says is that it clothes the authorities with the power to detain for three months at the

most. They cannot go beyond the period of three months without placing the matter before the Advisory

Board. It does not speak of the Parliament's right. The main point is this. When a man is arrested his case

must be placed before the Advisory Board. I believe, in spite of the wording, that Parliament has the right

to say that notwithstanding this clause immediately after a man is arrested for purposes of preventive

detention, his case shall go before the Board and it would be open to the Board to come to any conclusion,

even to say that the man may be let off even within three months.

Shri Jaspat Roy Kapoor: Will a person detained under a law enacted under clause (4) have the

benefit of a review by the Board?

Shri M. Ananthasayanam Ayyangar: Yes.

Shri Jaspat Roy Kapoor: No. He will not have that benefit.

Shri M. Ananthasayanam Ayyangar: The clause reads:

"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."

It is true that this apparently seems to apply only to cases where a man is sought to be detained beyond

three months. If it is for a period below three months, whether Parliament has a right or not is not clear

from this. As I read the article it is not intended to curtail the rights of Parliament. It may take away the

right to get information from the police. It might be open to Parliament to empower the police not to give

any such information at all. In those details Parliament's power of restricting the liberty of the citizen is

taken away. Otherwise wherever an Advisory Board is appointed, whether Parliament prescribes the law

or not, a man cannot be detained for more than three months unless the matter is decided by the Board.

Parliament has to enact a law under what circumstances and what officer and of what rank can detain man

for purposes of preventive detention.

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

50

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.

Lastly, our friends have tabled an amendment that the maximum period for which any such person

may be detained may not be more than one year. While I agree that in the first instance it ought to be

three months and should not exceed one year, there may be exceptional cases as in a state of emergency.

In cases other than such there may be a restriction of one year........

Pandit Thakur Das Bhargava : In an emergency these provisions will not have any force at all.

Shri M. Ananthasayanam Ayyangar: If these are intended in ordinary cases, there might be a

political party whose agitation is accompanied by plucking off of eyes or cutting off of arms and other

barbaric methods by friends who are as dark in colour as we are. I do not know what to do with them.

These have become a part of their tactics and I do not know whether they are likely to change. Under

those circumstances in the interest of the State is it not reasonable that we should make provision without

limiting the period of detention ? It might be that the officers or the executive might abuse this power. So

I would say a year in the first instance, but in exceptional cases it may be continued for a year more. We

should also fix the maximum period for which any such person should be detained. It may also be

considered whether it ought not to be left to Parliament to fix the maximum according to the exigencies of

the circumstances. If the period is now prescribed as one year, it may not be possible to change it except

by an amendment to the Constitution which requires two-thirds majority. I am not fully in agreement with

this. I therefore welcome a modification in the form suggested. Otherwise, the procedure 'as enacted by

law' would throw open the flood-gates and Government will be able to curtail the liberty of the citizen

and put him in jail even recklessly. If there is a political rival capable of fighting you at the elections the

possibility is that you will clap him in jail. Therefore, this clause may be a little improved by provision

that a lawyer might be engaged to defend a person Provision may also be made to enable the Advisory

Board to review the cases within three months and also fix a period or empower Parliament to effect a

change when necessary in this respect.

Shri Mahavir Tyagi (United Provinces: General) : 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.

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

51

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 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.

Shri Brajeshwar Prasad : Constitution or no-Constitution.

Shri Mahavir Tyagi: In Urdu there is a couplet which says:

'Kas rahe hain apni minquaron se halqa jalka'.

That is what really we are doing. We are making it easy and convenient and legal for the future

Governments to detain us. That is the meaning Sir, I do not wish to say more on this point. I only wanted

to warn the House that if we pass this article as it is we will simply be making a provision which will be

used against us.

Mr. President: That you have done. So far as the details are concerned, they have been dealt with by

other speakers in great detail.

Shri Mahavir Tyagi: If you think so, I shall now merely refer to the defects of the provision.

Mr. President: The defects have been pointed out by other speakers in great detail. You will be only

repeating them hereafter.

52

Shri Mahavir Tyagi : No, Sir, I, will not repeat their arguments.

Here it is mentioned that "nothing in this article shall apply (a) to any person who for the time being is

an enemy alien" this is agreed-and "(b) to any person who is arrested under any law providing for

preventive detention." Now, Sir, such persons as are detained under any law of preventive detention will

have the privilege, according to the proviso, of their cases being judged by an Advisory Board. Persons

who are detained by the Government for more than three months, their cases will be judged or at least

reviewed by an Advisory Board, but the cases of such persons, as come under clause (4) Will not be

reviewed at all. It is said "unless such person is detained in accordance with the provisions of any law

made by Parliament under clause (4) of this article" which means, Sir, that all such cases of detention

which come under such laws which are enacted by Parliament under clause (4) shall have no privilege of

revision by any Advisory Board. I want to know why the privilege of report by the Advisory Board is not

given to cases of detention under the provisions of any law made by Parliament under clause (4). When

we are providing for an Advisory Board here, we could also include the cases of Such persons as are

detained under any law which Parliament may hereafter make under clause (4). My

Friend, Pandit Thakur Das Bhargava, has really done a wrong to the House by pressing his demand for

safeguards against the misuse of article 15. Instead of giving more guarantees, Dr. Ambedkar has only

brought in a couple of clauses from the Criminal Procedure Code which are no new guarantees, and

immediately along with those clauses he has brought in a clause for detention.

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.

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.

53

Dr. P. K. Sen (Bihar: General) : Mr. President, Sir, after the eloquent appeal of my honourable Friend,

Mr. Tyagi, it may be rather dull and drab for the House to hear me speak in a different vein. There is no

question at all that the individual has rights which have got to be protected, but at the same time I think,

judging from the trend of this debate from the very beginning up till now, the House is agreed that there

are circumstances which compel the world today-not only our country but every country-- to take certain

measures which may defend the State against subversive measures. The only question is how far and to

what extent individual right, the fundamental right to liberty and freedom, and safety and security of the

person, should be circumscribed in the interests of the security and safety of the State as a whole. It is the

old old question of individual versus State and the extent to which the rights of either should be adjusted

so that, not by destroying individual liberty but by circumscribing it to a certain extent, the welfare of the

whole State may be secured.

Sir, I do not propose at all to go through all the details which have already been placed before the

House by my honourable Friends, Pandit Thakur Das Bhargava and Dr. Bakhshi Tek Chand and several

other speakers. The whole dispute as to whether it should be "due process of law" or "the procedure

established by law", and the history of it all has been discussed. The only short point upon which I wish to

address the House today is in support of the amendment brought forward by my honourable Friend,

Dr. Bakhshi TekChand, in regard to informing the detenu, the person arrested, of the grounds on which he

has been arrested. This is really the minimum that can be done and should be done. It has been hinted that

theHonourable Dr. Ambedkar was inclined to accept the amendment but that he was overborne by

"extraneous forces." It has even been suggested that Dr. Ambedkar has appeared in this House in double

personality,--the one Dr. Ambedkar, plain and simple as he is intensely in sympathy with the individual as

regards rights and liberties and the other somewhat like the ghost of himself, as it were, like the perturbed

spirit in Hamlet hovering about and over his innate love of freedom and yet being overborne by other

forces. I do not believe it, Sir. I do not believe that he is capable of it or that the Drafting Committee is

capable of it. Let us not regard the Drafting Committee or those who are in charge of these articles before

they are finally shaped as if they were an Opposition or as if we were in opposition to them. The simple

question is this :Whether the modicum that should be allowed to the citizen has been allowed or not. I do

believe that when a man has been detained, it is unquestionably his right to know the grounds upon which

he has been arrested and detained. This is the minimum that can be done. The Board has already been

provided for in the article constituted of judges of the High Court, or those who have been judges of the

High Court or those who are qualified to be judges of the High Court. Such a Board is to go into the

question as to whether or not the grounds are sufficient or not; and the whole affair as to whether three

months should be the limit or whether the period could be enhanced or enlarged is to be in the hands of

the Board. If that be so, it is the simplest thing in the world for the Board to know what the grounds of

arrest are.

It is not suggested at all that the whole of the evidence should be placed before the person arrested,

because it is a notorious fact that in regard to these persons who are charged with subversive activities the

evidence is very difficult to find, the evidence may also be counteracted by concocted evidence, and

therefore, it is not necessary at all for the purpose of acquainting him with the ground of his detention or

arrest that he should be given all the materials or data of the evidence. That, I take it, is not suggested in

the amendment. All that is suggested is that the moment a man is arrested the matter should be in the

hands of this Particular Board which will be appointed, and that Board having gone into the matter should

at once inform him of the ground of his arrest so that he may know where he is. It may be that there are

circumstances which he can disclose from which it will be found that he was arrested on no ground at all.

I therefore, most emphatically submit that this amendment should be accepted.

As regards the other points urged, I will not repeat them. There may be certain things in the provisions

of the article which appear to be rather against the fundamental rights, but as I have said, having regard to

54

the troublous times which not only this country, but all countries in the world are passing through, some

special measures for the security of the State are necessary and I hope the House in considering article

15A will not lose sight of that fact and will not be carried away by emotion so as to think that it can make

a clear sweep of the whole article (15A). That extreme view I am not prepared to subscribe to. I do

submit, therefore, that he Drafting Committee would be pleased to consider this amendment very

seriously and accept it. I thank you, Sir.

Pandit Hirday Nath Kunzru (United Provinces: General) : Mr. President, Sir, the article placed

before us by Dr. Ambedkar deals with two matters, the conversion of the ordinary rights enjoyed by

accused persons under the Criminal Procedure Code into constitutional guarantees and the manner in

which persons detained under preventive detention laws should be dealt with. So far as the first question

is concerned, it has been so fully dealt with that I do not want to deal with it except to say that I agree

with the proposal of Pandit Thakur Das Bhargava that if an accused person is allowed to be detained for

more than 24 hours by the Magistrate, he should record his reasons for doing so in writing that the

accused person should have the right of examining the prosecution witnesses and of producing

his defence and that at least one appeal should be allowed against every conviction. It is true, Sir, that

most of these rights are enjoyed under the present Criminal law by accused persons, but if any of the

rights now enjoyed is to become a constitutional right, it is desirable that the Constitution should contain

the most important of those rights without which there cannot be a fair trial.

Now I come to the second part of Dr. Ambedkar's amendment. Clause (3) of this amendment says :

"Nothing in this article shall apply-to any person who is arrested under any law providing for

preventive detention :

Under the various provincial Public Security Acts a man has to be informed almost as soon as he is

arrested of the reasons for his arrest and detention; yet when we are dealing with this matter in connection

with the Constitution, we are not giving a detained person the right that he now enjoys under the

Provincial Public Security Acts. I think therefore that whether a detainee's case goes before the Advisory

Board or not, he should be informed of the grounds on which he is detained as soon after his arrest as

possible and should be given an opportunity of submitting his explanation to the Government. I should

further like to submit that when a case is placed before the Advisory Board, the detainee should be given

an opportunity of submitting a further representation to the Board, should he so desire. Besides, the Board

should be at liberty to ask the Government to place the explanation of the detenu before it. If the

Government do not choose to inform the Board of the explanation submitted by the accused, the Board

should be at liberty to set him free.'

The second suggestion that I should like to make, in connection with clause (3) is that whether a State

Government is required to place the cases of detenus periodically before the Advisory Board or not, there

ought to be a limit to the period for which a man can be detained. After all, the judicial review provided

for in this clause will proceed only on the basis of written charges and replies. No witnesses will be

produced, the detainee will not be represented by counsel and he, will not have an opportunity of cross

examining the prosecution witnesses. It is possible therefore that even the Advisory Board may arrive at a

wrong decision. The materials placed before it by the Government justifying the detention of a person

will consist, I suppose, of police reports; and these reports, to put it mildly, may not always be correct.

The Advisory Board will have to proceed only on the basis of police reports and however wise its

personnel, it may not always be able to arrive at correct decisions. I think, therefore, that a limit should be

set to the period for which a man can be detained.

55

Now, I come to the case of a man detained under a Parliamentary statute. We are told that Parliament

being the supreme legislative body in the country and representative of the entire country it may be

supposed to be not merely willing, but anxious to do justice to all classes of people. There is, therefore, no

reason why its bona fides should be questioned or its powers should be curtailed by the Constitution. We

have, Sir, in the United States a body known as the Congress which, in that country, is as supreme as

Parliament will be in this country. Nevertheless, the Constitution of the United States limits the powers of

this body in respect of the arrest of persons, searches of dwelling places, and so on. We may, therefore,

without casting any reflection on Parliament and without unduly derogating from its authority, provide in

our Constitution some of the safeguards, or rather something remotely resembling the safeguards

provided in the United States Constitution. Even if my proposal is accepted that is, even if Parliament is

required to fix a period for the detention of a person, we shall be far from having provided all those

guarantees of liberty that the United States Constitution does.

The United States Government is today controlling the administration of Japan. A Military

Commander exercises ultimate authority there. But notwithstanding the abnormal position that prevails in

Japan, the Japanese people have been given in substance all those Constitutional guarantees that the

people of the United States enjoy under the Constitution of that country. In order to give an illustration of

what I mean I shall read out only one provision of the Japanese Constitution. This provision is embodied

in article 35 and runs as follows:-

"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 a warrant issued only for probable cause and particularly

describing the place to be searched and the things to be seized, or except as provided for by article 33."

The exception provided for in article 33 relates to the arrest of a person while committing a crime.

The situation in India, even if it may not be supposed to be normal, is far better than the situation in

Japan. But, the House has shown its unwillingness to give our people those guarantees of liberty that the

people of Japan have been provided with notwithstanding the, extraordinary situation existing there. If the

article under discussion is passed, the Central Government and the Provincial Governments will have the

right of detaining persons under special laws. We shall be far behind the United States Constitution or the

Japanese Constitution in regard to this matter. In these circumstances, I think it is necessary that we

should restrain the power of the executive to detain persons without trial so as to ensure that the detainees

are not kept in detention for an indefinite length of time. This is the least that we can do for those who are

deprived of their liberty.

I do not know, Sir, whether my suggestions will find favour with the Drafting Committee and the

House. But I have no doubt whatsoever that the safeguards that I have suggested can be provided without

affecting in the least the power of the Executive to deal even with such emergencies as may not be

constitutionally recognised as such. It will have the power to arrest people and detain them. All that it will

not be able to do is to detain them without limit of time.

It may be said that it is quite possible that it may not be desirable in the public interest that a person

who is regarded as highly dangerous by the Executive should be set at liberty even after six months or a

year. It is possible to conceive of such a case. If Government comes across such a case it will be able, to

deal with it by setting the man concerned at liberty, watching his behaviour for some time and then re-

arrest him after some time if he does not behave properly; but there is no justification whatsoever for

allowing any Government even with the approval of the Advisory Board to go on detaining a man no

merely for months but for years.

56

Shri B. M. Gupta : (Bombay: General) : 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. It is after all an attempt to rescue something out of fire and it should be

judged in that light. It is an attempt to rescue something out of fire that eliminated the phrase "due process

of law". Article 15 concerns the most vital of all the Fundamental Rights, viz., the right to life and

personal liberty. those of us who advocated the. adoption of that phrase wanted to give that right the

essence of Fundamental Right And what is the essence of Fundamental Right? In the small field of the

basic needs of the civilized man, the limitation on the sovereignty of the Legislature and to that extent the

supremacy of the judiciary, are the essence of the Fundamental Right, unfortunately we were defeated.

This provision does not at all seek to restore that supremacy. Dr. Ambedkar has rightly said that article 15

gave a carte blanche for the arrest of any person under circumstances that Parliament may think fit. That

right was there and it is not claimed that this article substantially restricts that right. Dr. Ambedkar is

satisfied that these provisions are sufficient to guard against illegal and arbitrary arrest : but are they

sufficient to prevent the Parliament from making any provision with regard to preventive detention? That

is the real test, and I submit that these safeguards are very minor safeguards. Clauses (1) and (2) of the

article give no new rights at all. They are old rights--only they are made more difficult of abrogation. And

the third point is in regard to the Advisory Committee. These are very minor safeguards and we can say

that they are only small mercies. I am not against accepting them for whatever they are worth; but their

real nature must be understood.

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 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 isthis, 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 orBakhshi 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 (Madras: General): 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 know that

57

I will be exhausting the patience of the House only if I have also taken some time to speak on this matter.

But I feel strongly that I should make a few points and remarks on the speeches made during the debate in

this House.

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. I do not think there can be a greater champion and advocate of individual freedom than De

Valera the product of this century with the best democratic traditions. What is it that he has done? The

very first thing that he did after becoming President was to pass a number of Public Security Acts. He had

no other go. He had to do it, because a situation arose when he himself was to be murdered, what was he

to do?

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

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.

Sir, I do not want to go into the various amendments introduced by

my honuurable Friend Pandit ThakurDas Bhargava. He said : Give the right of appeal, at least once, and

also the provisions for periodical reviews and conditional releases and so on. Dr. Ambedkar will deal with

these points. 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. After all, the

Board will not lose much by at least having a look at the person detained and receiving his explanations

58

and reasons. I do not know whether it raises any administrative difficulty, but that will be dealt with by

the Drafting Committee. I have confidence in the Government. Can there be a greater advocate and

champion of personal freedom than our government, our Prime Minister, and our Deputy Prime Minister

who always are here to give relief to the, poor and the needy and those who suffer?

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

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. mandetained

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) 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.

Sir, I commend this article for the acceptance of the House.

Mr. President: I understand Dr. Ambedkar has to make certain suggestions to meet the criticisms that

have been made against this article. I would therefore give him a chance to speak at this stage and if any

further question arises we can consider it.

Babu Ramnarayan Singh (Bihar: General) : Does he agree to remove the article altogether?

Mr. President: No.

The Honourable Dr. B. R. Ambedka : 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 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

59

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

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

ofdefence. 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 bad 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

60

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 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 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.

61

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 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.

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. Therefore I am prepared to incorporate the following clause after clause (3) in

article 15 :

62

"(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........"

Babu Ramnarayan Singh : Sir, Dr. Ambedkar says that provinces want the inclusion of this

clause......

Mr. President: He has not said anything of that sort. What he has said is that several of the Acts

which have been passed by the provinces for preventive detention contain certain provisions. He wants to

incorporate a similar provision in this article.

Babu Ramnarayan Singh: I wanted to know whether we are passing legislation at the dictates of the

provinces.

Mr. President: Nothing of the sort.

The Honourable Dr. B. R. Ambedkar: I find that Mr. Ramnarayan Singh is somewhat disaffected

with the provincial government to which he belongs.

As I was saying I think this provision ought to do :

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."

These are the exact words in some of the Acts of the provinces and I do not see any reason why they

should not be introduced here, so that this ground of criticism that we are detaining a person merely

because his case comes under preventive detention, without even informing him of the grounds on which

we detain him. Now that is met by the amendment which I have proposed.

The other question is...........

The Honourable Shri K. Santhanam (Madras : General) : 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.

63

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. It 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 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

64

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 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) 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

beenlevelled 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 (East Punjab: General) : 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) 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.

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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

bythe fear that lie 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 will 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.

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.

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.

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.

66

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 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 ofhabeas

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.

Shri H. V. Kamath (C. P. & Berar: General) : My question is whether we have provided in the article

for this purpose.

The Honourable Dr. B. R. Ambedkar: It is not necessary. Everybody knows it. If you get into

trouble, you can engage a lawyer who will let you know everything.

Shri H. V. Kamath: I shall engage yourself.

Mr. President : Is it necessary to have any further discussion?

The Honourable Dr. B. R. Ambedkar: The question may now be put.

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Shri T. T. Krishnamachari: The House has discussed this for six hours already.

Sardar Hukam Singh (East Punjab Sikh) : From this corner I have been trying to catch your eye but

without success. I would like to say a few words if you would permit me.

Shri Brajeshwar Prasad: I have been standing since yesterday.

Prof. Shibban Lal Saksena (United Provinces: General): This is a very important article in the

Constitution and deals with personal freedom and liberty. The debate on this should not be curtailed.

Mr. President : I am entirely in the hands of the House. Closure has been moved. The question is :

"That the question be now put."

The motion was adopted.

Mr. President: I do not think I can give Dr. Ambedkar another right of reply.

The Honourable Dr. B. R. Ambedkar: I do not 'think so, Sir. Nobody said anything.

Mr. President : I will now put the amendments to the vote.

The Honourable Dr. B. R. Ambedkar: They might all be withdrawn.

Mr. Naziruddin Ahmad (West Bengal: Muslim) : New clauses have just been added. Will they be put

to the vote now?

Mr. President: Yes, just now.

Mr. Naziruddin Ahmad: It will be difficult to follow them without copies.

Dr. Bakhshi Tek Chand: They are not new amendments in any sense and it is not necessary to have

further time to discuss them. Only some amendments of Dr. Bhargava have been accepted in part. There

has been sufficient discussion on them.

Mr. President : I was just going to say that myself.

The question is :

"That after article 15 the following new articles be added:-

'15A. No procedure within the meaning of the preceding section shall be deemed to be established by

law if it is inconsistent with any of the following principles :-

(i) Every arrested person if he has not been released earlier shall be produced before a Magistrate

within 24 hours of his arrest excluding the reasonable period of journey from the place of arrest to the

Court of the Magistrate and informed of the nature of the accusation for his arrest and detained further

only by the authority of the Magistrate for reasons recorded.

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(ii) Every person shall have the right of access to Courts to being defended by counsel in all

proceedings and trials before courts.

(iii) No person shall be subjected to unnecessary restraints or to unreasonable search of person or

property.

(iv) Every accused person is entitled to a speedy and public trial unless special law or public interests

demand a trial in camera.

(v) Every person shall have the right of cross-examining the witness produced against him and

producing his defence.

(vi) Every convicted person shall have the right of at least one appeal against his conviction.'

'15B. No procedure within the meaning of Section 15 shall be deemed to be established by law in case

of preventive detention if it is inconsistent with any of the following principles :-

(i) No person shall be detained without trial for a period longer than it is necessary.

(ii) Every case of detention in case it exceeds the period of fifteen days shall be placed within a month

of the date of arrest before an independent tribunal presided over by a judge of the High Court or a person

possessed of qualification for High Court Judgeship armed with powers of summary inquiries including

examinations of the person detained and of passing orders of further detention, conditional or absolute

release and other incidental and necessary orders.

(iii) No such detention shall continue unless it has been confirmed within a period of two months from

the date of arrest by an order of further detention from such tribunal in which case quarterly reviews of

such detentions by independent tribunal armed with powers of passing of orders of release conditional or

otherwise and other necessary and incidental orders shall be made.

(iv) Such detention shall in the total not exceed the period of one year from the date of arrest.

(v) Such detained person shall not be subjected to hard labour or unnecessary restrictions otherwise

than for wilfuldisobedience of lawful orders and violation of jail rules.'"

The amendment was negatived.

Mr. President : Then No. 3. Is it necessary to read the amendment?

Pandit Thakur Das Bhargava: They need not be read. Such of the amendments as have been

accepted may be taken and the others rejected.

Mr. President : The question is :

"That in amendment No. 1 above for clauses (1) and (2) of the Proposed new article 15A, the

following be substituted :-

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'15A. No procedure shall be deemed to be established by law within the meaning of article 15 if the

law prescribing the procedure for criminal proceedings and trials of accused persons contravenes any of

the following established principles and rights-

(a) the right of Production of the person under custody before Magistrate within 24 hours of his arrest

(excluding the reasonable period of journey from the place of arrest to the court of Magistrate) and further

detention only with the authority of the magistrate for reasons recorded;

(b) the right of consultation after arrest and before trial and the right of being defended by the Counsel of

his choice;

(c) the right of full opportunity for cross- examination of ,witnesses Produced against the accused and

Production of his defence;

(d) the right of at least one appeal in case of conviction.'"

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 3 above, after clause (d) of the Proposed new article 15A. the following

clauses be added :-

(e) right to freedom from torture and unnecessary restraints and from unreasonable search of person and

Property;

(f) right to a speedy and public trial unless special law and Public interest demand a trial in camera,' "

The amendment was negatived.

Mr. President: The question is :

"That in amendment No. 1 above, in clause (1) of the proposed new article 15A, for the words 'a legal

practitioner of his choice' the words 'and be defended by a legal practitioner of his choice in all criminal

proceedings and trials' be substituted."

The amendment was negatived.

Mr. President: Then No. 7.

Shri T. T. Krishnamachari: Dr. Ambedkar has accepted a portion of this amendment. It need not be

voted upon. If it is rejected, then Dr. Ambedkar will not be able to accept a portion of it.

The Honourable Dr. B. R. Ambedkar: Mine are in dependent amendments.

Mr. President: The question is

"That in amendment No. 1 above, in the proposed new article 15A, for clause (2), the following be

substituted :-

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'(2) Every arrested person if he has not been released earlier shall be produced before a Magistrate

within 24 hours of his arrest excluding the reasonable Period of journey from the place of arrest to the

court of the Magistrate and detained further only by the authority of the Magistrate for reasons recorded."'

or alternatively

"That in amendment No. 1 above, at the end of clause (2) of the Proposed new article 15A, the

following be added :-

'and for reasons recorded.'"

The amendment was negatived.

Mr. President: The question is :

"That in amendment No. 1 above, after clause (2) of the proposed new article 15A, the following

clauses be added :

'(2a) Every Person accused of any offence or against whom criminal proceedings are being taken shall

have the full opportunity of cross-examining the witnesses produced against him and producing

his defence.

(2b) Every person sentenced to imprisonment shall have the right of at least one appeal against his

conviction."'

The amendment was negatived.

Mr. President: The question is :

"That in amendment No. 1 above, for clauses (3) and (4) of the proposed new article 15A, the

following be substituted:-

"15B. No procedure shall be deemed to be established by law within the meaning of article 15 if the

law prescribing the prevention or detention contravenes any of the following principles,-

(1) Such detention without trial shall only be allowable for alleged participation in dangerous or

subversive activities affecting the public peace, security of the State and relation between different classes

and communities inhabiting India or membership of any Organisation declared unlawful by the State,

(2) 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 recommendcontinuance of detention

within the said period of two months.

(3) Such detention shall not exceed the total period of one year.

(4) Such detention shall be free from unnecessary restrictions and hard labour otherwise than

forwilful disobedience of lawful orders and violation of jail rules :

71

Provided that the Parliament shall never be precluded from prescribing other reason and circumstances

which may necessitate such detention and the conditions of such detention."'

The amendment was negatived.

Mr. President: The question is:

"'That in amendment No. 1 above, in the proviso to clause (3) of the proposed new article 15A, for the

word 'three' the word 'two' be substituted."

The amendment was negatived.

Mr. President: The question is :

"That in amendment No. 1 above, in sub-clause (a) of the proviso to clause (3) of the proposed new

article 15A, after the word 'Board' the words 'with powers of inquiry including examination of persons

detained' be inserted."

The amendment was negatived.

Mr. President: The question is :

"That in amendment No. 1 above, at the end of sub-clause (b) of the proviso to clause (3) of the

proposed new article 15A, the following be added 'but in no case more than six months' or 'but in no case

more than a year"'

The amendment was negatived.

Mr. President : The question is :

"That in amendment No. 1 above, in clause (4) of the proposed new article 15A, after the word

'circumstances' the words 'and the conditions' be inserted."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 1 above, in clause (4) of the proposed new article 15A, for the words 'three

months' the words 'one month' or 'two months' be substituted."

The amendment was negatived.

Mr. President : The question is :

"That in amendment No. 1 of List I (Eighth Week), for clause (1) of the proposed new article 15A, the

following be substituted:-

72

'(1) Every person arresting another in due course of law shall, at the time of the arrest or as soonas

practicable thereafter, inform that person the reasons or grounds for such arrest, nor shall he be denied the

right to consult a legal practitioner of his own choice."'

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 1 of List I (Eighth Week), in clause (1) of the proposed new article 15A, after

the words 'as soon as may be' the words 'being not later than fifteen days' be inserted."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 1 of List I (Eighth Week), sub-clause (b) of clause (3) of the proposed new

article 15A be deleted."

The amendment was negatived.

Mr. President : The question is :

"That in amendment No. 1 of List I (Eighth Week), the proviso to clause (3) of the Proposed new

article 15A be deleted."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 1 of List I (Eighth Week), in Sub-clause (a) of the proviso to clause (3) of

the proposed new article 15A, after the words 'a High Court has' the words 'after hearing the person

detained' be inserted."

The amendment was negatived.

Mr. President : The question is :

"That in amendment No. 1 of List I (Eighth Week), in sub-clause (a) of the proviso to clause (3) of the

proposed new article 15A, after the words 'such detention' the words 'but so that the person shall in no

event be detained for more than six months' be added."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 1 of List I (Eighth Week), the following proviso be added to clause (4) of the

proposed new article 15A :-

73

'Provided that if the earning member of a family is so detained his direct dependents shall be paid

maintenance allowance."'

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 1 of List I (Eighth Week), in clause (1) of the proposed new article 15A, for

the words 'as soon as may be' the words 'before the expiration of seven days following his arrest' be

substituted."

The amendment was negatived.

Mr . President: The question is:

"That in amendment No. 1 of List I (Eighth Week), in clause (2) of the proposed new article 15A, for

the words 'as soon as may be' the words within twenty-four hours' be substituted."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 1 of List I (Eighth Week), in clause (2) of the proposed new article 15A, after

the word 'magistrate', wherever it occurs. he words 'of the First Class be inserted."

The amendment was negatived.

Mr. President: The question is :

"That in amendment No. 1 of List I (Eighth Week), for clause (2) of the proposed new article 15A, the

following be substituted :-

'(2) Every person who is arrested shall be produced before the nearest magistrate within twenty-four

hours and no such person shall be detained in custody longer than twenty-four hours without the authority

of a magistrate.'"

The amendment was negatived.

Mr. President: The question is:

"That in amendment No. 1 of List I (Eighth Week). in clause (2) of the proposed new article 15A, after

the word 'magistrate' occurring at the end, the words 'who shall afford such person an opportunity of

being heard' be added."

The amendment was negatived.

Mr. President: The question is:

74

"That in amendment No. 1 of List I (Eighth Week), after clause (2) of the proposed new article 15A,

the following new clause be added :-

'(2a) No detained person shall be subjected to physical or mental ill-treatment.'"

The amendment was negatived.

Mr. President: The question is :

"That in amendment No. 1 of List I (Eighth Week), clause (3) of the proposed new article

15A, be deleted."

The amendment was negatived.

Mr. President : The, question is :

"That in amendment No. 1 of List I (Eighth Week), in sub-clause (b) of the operative part of clause (3)

of the proposed new article 15A, after the word 'law' the words 'of the Union' be inserted."

The amendment was negatived.

Mr. President: The question is:

"That in amendment No.1 of List I (Eighth Week), in sub-clause (a) of the proviso to clause (3) of the

proposed new article 15A, the words 'or are qualified to be appointed as' be deleted."

The amendment was negatived.

Mr. President : The question is :

"That in amendment No. 1 of List I (Eighth Week), at the end of clause (3) of the proposed new article

15A, the following new proviso be added :-

'Provided that in the case of any such person so recommended for detention as stated in sub-clause (a)

of clause (3), the total period of his detention shall not extend beyond nine months provided the Advisory

Board has in its possession direct and ample evidence that such person is a source of continuous danger to

the State and the Society.'"

The amendment was negatived.

Mr. President : The question is :

"That in amendment No. 1 of List I (Eighth Week), after clause (4) of the proposed new article 15A,

the following new clause be added:-

'(5) Notwithstanding anything contained in this article, the powers conferred on the Supreme Court

and the High Courtsunder article 25 and article 202 of this Constitution as respects the detention of

persons under this article-shall not be suspended or abrogated or extinguished'."

75

The amendment was negatived.

I think these are all the amendments which we moved yesterday. Dr. Ambedkar has moved certain

amendments today and I would put them to vote now.

Mr. President: The question is:

"That in clause (1) of article 15A, after the word 'consult' the words 'and be defended by' be inserted."

The amendment was adopted.

Mr. President : The question is :

"That 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."

The amendment was adopted.

Mr. President : The question is :

"That 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'."

The amendment was adopted.

Mr. President: The question is :

"That at the end of clause (4) of article 15A, the following be added:-

'and 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'."

The amendment was adopted.

Mr. President : The question is :

"That proposed Article 15A, as amended, stand part of the Constitution."

The motion was adopted.

Article 15A, as amended, was. added to the Constitution.

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Mr. President: I am sorry I forgot to put Dr. Bakhshi Tek Chand's amendment to vote. Of course it was

not necessary. It is covered by Dr. Ambedkar's amendments.

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