Friday, the 3rd June 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Eight of the Clock, Mr. President. (The Honourable Dr. Rajendra Prasad) in the Chair.
Mr. President: We shall take up article 168.
Shri T. T. Krishnamachari (Madras: General): Before taking up article 168, Sir, I would like to draw the Chair's attention to the fact that there is an amendment seeking the introduction of new article 167-A. This arises out of the issue raised by two amendments to article 168, amendments Nos. 2440 and 2441. It is felt that it would be appropriate to have those issues put in a separate article 167-A. I feel, however, the House has not had the time to consider this proposed article and I would therefore suggest with the Chair's permission that this may be held over to a later date, so that the House may have enough time to digest the contents of this new article.
Mr. President: I was thinking of taking it up with amendment No. 2441. If it is to be held over, then it is all right.
Shri T. T. Krishnamachari: The point is, it more of less covers the purpose of amendment No. 2441; but the procedure outlined is different. I think it would be better to give the Members some time to digest it. Therefore, I suggest that it may be held over so that we can take it up on a later occasion.
Mr. President" If the Members have no objection, I shall hold it over.
There is notice of a fresh amendment that a new article should be added, article 167-A, which deals with the question of disqualification of members and suggests that the question whether a Member has incurred a disqualification or not will be dealt with in a particular way. The suggestion is that it should be held over. The notice is in respect of amendment No. 2441 which is to article 168; but it comes more properly here. In any case, the idea is that it should be held over for the present so that the Members may consider it.
We shall take up article 168 now.
The motion is:
"That article 168 form part of the Constitution."
The first three amendments 2434, 2435 and 2436 and 2436 I think, are of a drafting nature.
Mr. Naziruddin Ahmed (West Bengal: Muslim): yes, they are of a drafting nature.
Mr. President: Amendment 2437 this is covered by this new article which is proposed, 167-A. We may leave that over.
(Amendment Nos. 2438 and 2439 were not moved.)
Mr. President: Amendments 2440 and 2441: these arise in connection with the new article proposed. We may leave these over.
There is no amendment moved to article 168. Does any one wish to say anything about the article?
Shri Lakshminarayan Sahu (Orissa: General): *[Mr. President, I do not think there is any particular necessity for retaining article 168 in our Constitution. There is already enough provision in the Constitution to deal with such persons as are not members or do not possess the necessary qualifications but enter the House and sit there as members. We can turn them out of the House, or can prosecute them for trespassing and thereby they would be awarded due punishment. Therefore, it does not appear proper to me, Sir, to have an exclusive article for this purpose. I do not think there is any advantage in providing for an additional article like the present one. My submission is that they should be treated as trespassers and punished accordingly.]
Mr. President: The question is:
"That article 168 stand part of the Constitution."
The motion was adopted.
Article 168 was added to the Constitution.
Mr. President: We take up article 169.
(Amendment Nos. 2442, 2443, amendment to amendment,
No. 141, and 2444 were not moved.)
Shri Jaspat Roy Kapoor (United Provinces: General): Sir, I beg to move:
"That in clause (4) of article 169, after the words `a House of the Legislature of a State' the words `or any committee thereof' be inserted."
Sir, after my amendment is
incorporated in clause (4) of 169 it will read thus:
"The provisions of clause (1), (2) and (3) of this article shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise take part in the proceedings of, a House of the Legislature of a State or any Committee thereof as they apply in relation to members of that Legislature."
The object of this amendment is that any person, tough not a member of the Legislative Assembly, if he is called upon to appear before or act in a committee set up by the Legislature, he shall have in respect of whatever he says or does there the same privileges as have been extended to members of the Legislature. Without such immunity being extended to persons who are invited to appear before or act on a Committee set up by the Legislature it would be very difficult for such persons to act freely, with absolute freedom and without any reservation. A similar amendment of mine in relation to the privileges of such persons when they were to appear before a Committee
* Translation of Hindustani Speech.
set up by the Central Parliament has already been accepted by this House and for the same reason I would submit that this amendment also should be accepted.
Mr. President: Nos. 2446 and 2447 are not moved. The amendments and the article are open for discussion.
Shri H. V. Kamath (C.P. & Berar: General): Mr. President, I shall, by your leave, say a few words with respect to clause (3) of this article. I do not propose to repeat what I said on an earlier occasion when we were discussing the corresponding clause relating to the privileges of members of the Central Parliament. But I should like to invite the attention of Dr. Ambedkar and also of the House to the reaction among the people as well as in the Press to the clause that we adopted on that occasion. I have no doubt in my own mind that Dr. Ambedkar keeps his eyes and ears open, and cares to read some of the important papers daily or at least has them read to him daily. Soon after this clause relating to the privileges of members of Parliament was adopted in this House, most of the Press was critical of the way in which we had dealt with the matter. Even a Conservative Paper such as the Hindustan Times remarked that it was highly undesirable for us, drafting a written Constitution for our country, to legislate or to insert something in our constitution by reference to something in the unwritten constitution of another country. Britain, as the House is aware, has an unwritten Constitution though this particular measure may be written down in some document. I believe that when that clause was adopted, our Constitutional pandits here, our experts,our experts, Dr. Ambedkar, Mr. Alladi and others of their way of thinking laid the flattering unction to their souls that, the House of Commons being the Mother of Parliaments, we were doing the wisest thing in the world by stating something with reference to that body, the House of Commons, about which however most of us here are blissfully ignorant. Many of the Members here who spoke on that occasion remarked that they did not know what the privileges of the Members of the House of Commons were, and some of the papers and some of the comments on this particular aspect of our work was that the Drafting Committee more or less shirked, "scamped", its work. They could have at least drafted a schedule and incorporated it at the end of the Constitution to show what the privileges of the members of the House of Commons were. That was not done, and simply a clause was inserted that the privileges obtaining there will obtain here as well. Nobody knows what those are, and a fortiori nobody knows what privileges we will have. Our Parliament presided over by Mr. Mavalankar has adopted certain rules of business and procedure tentatively, and has also appointment or is shortly going to appoint a Committee of Privileges. I wonder why we could not have very usefully and wisely
adopted in our Constitution something to this effect, that whatever privileges we enjoy as members of the Central Parliament will be enjoyed by members of the Legislature in the States. If at all there was a need for reference to any other Constitution, I think it was very unwise on the part of the Drafting Committee to refer to an unwritten Constitution, viz., the Constitution of Great Britain. There is the written Constitution of the U.S.A., and some of us are proud of the fact that we have borrowed very much from the American Constitution. May I ask Dr. Ambedkar whether the Privileges of the Members of the House of Commons in the United Kingdom are in any way superior to or better than the privileges of the members of the House of Representatives of the United States? If they are, I should like to have enlightenment on that point. If they are not, I think the reference to an unwritten constitution is not at all desirable. I am of course against any reference to another constitution. If necessary let us put in a schedule to our constitution, and say here in this article that the privileges and rights are as specified in the Schedule at the end. There is probably a desire to simplify matters, but to simplify matters is always the proper way. If they wanted to simplify it for the sake of brevity, they should have thought of this alternative-a reference to a written constitution of some country in the world. That would not have been absolutely repugnant to me. But I would any day prefer a definite schedule in the Constitution showing what privileges shall be enjoyed by members of the Legislatures and of Parliament. This particular clause, to my mind, should be recast. We have passed one clause on an earlier occasion, but that is no reason why we should perpetrate the same mistake over and over again. I would, therefore beg of Dr. Ambedkar and his wise team of the Drafting Committee and the House to revise this clause, and if necessary, to go back to the other clause, if they are convinced of the wisdom of this course, and revise that also accordingly and proceed in a saner and a wiser manner.
Mr. Naziruddin Ahmed: Mr. President, Sir, I also desire to offer a few remarks on clause (3) of the present article. It was I who tabled an amendment to article 85, clause (3), and that was amendment No. 1624. There is another amendment which was tabled by me to the present article, namely, No. 2443. Each of these clause deals with the privileges of members by reference to those of the House of Commons. But I did not move the earlier amendment, nor this amendment, because I found that it would involve the Drafting Committee in tremendous labour. The greatest objection to these clause is that they attempt to define our privileges to be co-extensive with those of the Members of the House of Commons in the United Kingdom. These clauses has been copied from the Government of India Act, 1935. This clause has been bodily lifted from that Act and there has been no attempt to clarify the situation. As Mr. Kamath pointed out,this shows some amount of indolence on the part of the Drafting Committee. The difficulty is that the privileges of the Members of the House of Commons are nowhere collected in any systematic form. It is therefore, difficult for us, for any Member to be sure of our privileges. And it is also necessary and highly desirable not to postpone the matter any further. My feeling is that honourable Members should suggest the incorporation of a Schedule showing the list of privileges which, as far as they could be found out and decided upon today, may be incorporated in the Schedule, with a slight amendment of this clause, referring to that Schedule. I have a draft ready and I shall submit it for consideration of the House at a suitable stage, if requested. I think it highly desirable that the privileges which we are so anxious to protect, should be clearly known. I think they should be systematised and for the time being incorporated in the Schedule of the Constitution, to be further revised and elaborated by
Parliament, if necessary.
Dr. P. S. Deshmukh (C. P. & Berar: General): Sir, on the last occasion too, I had supported Mr. Kamath and I do not want to repeat a single syllable of what I then said. So far as this clause is concerned, I have one concrete suggestion to make. I would be happy if reference to the House of Commons could be omitted. But if that is not possible, there is a second suggestion that I would like to make. Of course, I have not seen much consideration given to suggestions that I make, but still I hope this particular suggestion of mine will not fall on deaf ears. I would much rather that this subject of privileges was dealt with by a reference to article 85 that we have already passed. That would not only save an additional reference to the House of Commons, but it will also do away with a variety of privileges which may come to prevail as a result of this clause. The clause reads like this:
"In other respects the privileges and immunities of member of a House of the Legislature of a State shall be such as may from time to time be defined by the Legislature by law........"
Instead of leaving it to each State Legislature to define these for itself, I would much rather have the privileges co-extensive of those enjoyed by Parliament, so that so long as the reference to the House of Commons remains, it may exist; but when we define various privileges it should be done only by the Central Parliament and not by each particular State differently, because they are likely to vary. I hope this suggestion of mine will be accepted, by which we will be saved reference in another place to the House of Commons. We will also be basing our Constitution on our own decision, by reference to article 85-so that even if the reference to the House of Commons of the United Kingdom remains there in article 85, the privileges enjoyed by the members of all the legislatures in all the States will be co-terminous and co-members of all the legislatures in all the States will be co-terminous and co-extensive and will not vary in any way. I feel this is a very sensible suggestion and I hope it will find favour with the Drafting Committee and the Honourable Dr. Ambedkar.
Pandit Thakur Das Bhargava (East Punjab: General): Sir, in relation to this article 169, I tabled an amendment which is amendment No. 2444, but I have not thought fit to move it. In regard to this section, apart from the general tendency of our Assembly to shelve inconvenient questions, which I deprecate very much, I find this reference to the privileges and immunities enjoyed by the members of Parliament of the House of Commons is undesirable. Not that I am ashamed of a reference to the House of Commons, but in a matter like this, if we do that , it will be again shelving the very important question which is within the scope of the activities of this Assembly. After all, if we cannot find a solution of this difficult question, may I known when the solution will be found? If today our jurists and our leaders cannot define the privileges of the members of a Legislature, I do not see at what point of time this would be possible. I know that the Members of this House have been enjoyed certain privileges. Even if we cannot define them all, let us define such of them as we know. I know that the Members of this House and the Members of provincial legislatures, in some cases, have been enjoying the right of holding arms without licenses. I know the right of freedom of speech has been enjoyed, which is referred to in article 69. The question about liability to arrest was mooted in the Punjab Assembly at one time, when the question arose as to whether a Member could be arrested while coming to or going from a Session of the Assembly. These and similar things are not written down anywhere, so far as the House of Commons is concerned. They are part of the unwritten constitution, and are among the privileges which cannot perhaps be reduced to writing. Be that as it may, I think still that a reference to the House of Commons is humiliating to an extent. Why should
we refer to it? Our Parliament have been in existence for a very long time. There is no reason why we should not attempt to put in writing whatever our privileges are. If they are to be enlarged or restricted subsequently, that could be done, but this reference to the House of Commons to find our immunities and privileges is not justified.
Moreover, I have seen a tendency whenever any inconvenient question crops up, such as for instance the constitution of the Council of States or any such similar body, we want to keep it in abeyance and leave it to the Parliament to decide. When we are framing the Constitution we must take up questions which are of fundamental importance and decide them here and now.
Sir, I think it would be much better if the reference to the House of Commons is deleted. If we are not able to decide the question now we should leave it to our own legislatures. But if that is not possible, Mr. Jaspat Roy Kapoor's amendment must be accepted. He wants that the privileges and immunities enjoyed by the members of the provincial Legislature may be the same as those enjoyed by the members of the Central Legislature, whenever these privileges come to be defined.
The Honourable Dr. B. R. Ambedkar (Bombay: General): Sir, not very long ago this very matter was debated in this House, when we were discussing the privileges of Parliament and I thought that as the House had accepted the article dealing with the privileges and immunities of Parliament no further debate would follow when we were really reproducing the very same provision with regard to the State legislature. But as the debate has been raised and as my Friend Mr. Kamath said that even the press is agitated, I think it is desirable that I should state what exactly is the reason for the course adopted by the Drafting Committee, especially as when the debate took place last time I did not intervene in order to make the position clear.
I do not know how many Members really have a conception of what is meant by privilege. Now the privileges which we think of fall into two different classes. These are, first of all, the privileges belonging to individual members, such as for instance freedom of speech, immunity from arrest while discharging their duty. But that is not the whole thing covered by privilege.
Dr. P. S. Deshmukh: We do not want any enumeration of the privileges not any lecture on how they are exercised. What we want to know is whether it is not possible to embody them into the Constitution. That is the real question.
Mr. President: He is dealing with the matter.
The Honourable Dr. B. R. Ambedkar: I am mentioning the difficulty. If we were only concerned with these two things, namely freedom of speech and immunity from arrest, these matters could have been very easily mentioned in the article itself and we would have had no occasion to refer to the House of Commons. But the privileges which we speak of in relation to Parliament are much wider than to the two privileges, mentioned and which relate to individual members. The privileges of Parliament extends, for instance, to the rights of Parliament as against the public. Secondly, they also extend to rights as against the individual members. For instance, under the House of Commons' power and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important privilege. Then again, it is open to Parliament to take action against any individual member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are very grave matters-e.g., to commit to prison. the right to lack up a citizen for what parliament regards as contempt of itself is not an easy matter to define. Nor is it easy to say what are the acts and deeds of individual members which bring Parliament into disrepute.
Pandit Thakur Das Bhargava: We are only concerned with the privileges of members and not with the privileges of Parliament.
Honourable Dr. B. R. Ambedkar: Let me proceed. It is not easy, as I said, to define what are the acts and deeds which may be deemed to bring Parliament into disgrace. That would require a considerable amount of discussion and examination. That is one reason why we did not think of enumerating, these privileges and immunities.
But there is not the slightest doubt in my mind and I am sure also in the mind of the Drafting Committee that Parliament must have certain privileges, when that Parliament would be so much exposed to calumny, to unjustified criticism that the parliamentary institution in this country might be brought down to utter contempt and may lose all the respect which parliamentary institutions should have from the citizens for whose benefit they operate.
I have referred to one difficulty why it has not been possible to categorise. Now I should mention some other difficulties which we have felt.
It seems to me, if the proposition was accepted that the Act itself should enumerate the privileges of Parliament, we would have to follow three courses. One is to adopt them in the Constitution, namely to set out in detail the privileges and immunities of Parliament and its members. I have very carefully gone over May's Parliamentary Practice which is the source book of knowledge with regard to the immunities and privileges of Parliament. I have gone over the index of May's Parliamentary Practice and I have noticed that practically 8 or 9 columns of the index are devoted to the privileges and immunities of Parliament. So that if you were to enact a complete code of the privileges and immunities of Parliament based upon what May has to say on this subject, I have not the least doubt in my mind that we will have to add not less than twenty or twenty-five pages relating to immunities and privileges of Parliament. I do not know whether the Members of this House would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty-five pages. That I think is one reason why we did not adopt that course.
The other course is to say, as has been said in many places in the Constitution, That Parliament may make provision with regard to a particular matter and until Parliament makes that provision the existing position would stand. That is the second course which we could have adopted. We could have said that Parliament may define the privileges and immunities of the members and of the body itself, and until that happens the privileges existing on the date on which the Constitution comes into existence shall continue to operate. But unfortunately for us, as honourable Members will know, the 1935 Act conferred no privileges and no immunities on Parliament and its members. All that it provided for was a single provision that there shall be freedom of speech and no member shall be prosecuted for anything said in the debate inside Parliament. Consequently that course was not open, because the existing Parliament or Legislative Assembly possess no privilege and no immunity. Therefore we could not resort to that course.
The third course open to us was the one which we have followed, namely, that the privileges of Parliament shall be the privileges of the House of Commons. It seems to me that except of the sentimental objection to the reference to the House of Commons I cannot see that there is any substance in the argument that has been advance against the course adopted by the Drafting Committee. I therefore suggest that the article has adopted the only possible way of doing it and there is no other alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it.
Dr. P. S. Deshmukh: The honourable Member has said nothing about my other suggestion.
The Honourable Dr. B. R. Ambedkar: As I said, if you want to categorise and set out in detail all the privileges and immunities it will take not less than twenty-five pages.......
Mr. President: Dr. Deshmukh's suggestion was that in this article which deals
with the legislatures of the States we might only say that the members of a State legislature will have the same privileges as Members of our Parliament.
The Honourable Dr. B. R. Ambedkar: That is only a drafting suggestion. For instance, it can be said that most of the articles we are adopting for the State Legislatures are more or less the same article which we have adopted for the Parliament at the Centre. We might as well say that in most of the other cases the same provisions will apply to the State Legislature but as we have not adopted that course, it would be rather odd to adopt it in this particular case.
Mr. President: I shall first put the amendment of Mr. Jaspat Roy Kapoor to the House:
The question is:
"That in clause (4) of article 169 after the words `a House of the Legislature of a State' the words `or any committee thereof' be inserted."
The amendment was adopted.
Mr. President: The question is:
"That article 169, as amended, stand part of the Constitution."
The motion was adopted.
Article 169, as amended, was added to the Constitution.
Mr. President: To article 170 there are no substantial amendments except Nos. 2450 and 2451.
(Amendment Nos. 2448 and 2449 were not moved.)
Shri L. Krishnaswami Bharathi (Madras: General): Sir, I beg to move:
"That in article 170, after the words `so made' the words `salaries and' be inserted."
Sir, this is only to fill in an inadvertant omission in this article. Article 170 relates to salaries and allowances of members of the Assembly and the Legislative Council. This has two parts ad the House will see. The first part makes provision for parliament to determine salaries and allowances etc. and then the next part says that till such provision is made the existing conditions shall continue. But in the actual wording it is only said "allowances at such rates" shall be continued. The House will know that in the provinces members of the legislature are receiving salaries at present. Unless this word "salaries" is added the members of the provincial legislatures would get no salary till provision is made in that regard. The article is in similar terms to article 86 which relates to members of Parliament. Members of the Constituent Assembly are not receiving salaries and hence provision is made only for allowances, whereas in the provincial legislatures the members receive salaries. It is therefore necessary that you must have the word `salary', and I hope the House will accept the amendment.
Mr. President: The other amendment is 2451 in the name of Mr. Z. H. Lari. A similar amendment was discussed and rejected in regard to the Central Parliament. I find that Mr. Lari is also not here and so the amendment is not moved.
The Honourable Dr. B. R. Ambedkar: Sir, I accept Mr. Bharathi' amendment.
Mr. President: The question is:
"That in article 170, after the words `so made' the words `salaries and' be inserted."
The amendment was adopted.
Mr. President: The question is:
"That article 170, as amended, stand part of the Constitution."
The motion was adopted.
Article 170, as amended, was added to the Constitution.
Mr. President: There is notice of a new article 170-A in the name of Mr. Bharathi.
Shri L. Krishnaswami Bharathi: Sir, I am not moving it.
Mr. President: There is another in the name of Prof. K. T. Shah.
Prof. K. T. Shah (Bihar: General): Sir, I beg to move:
'That after article 170, the following new article 170-A, be inserted :-
`170-A. It shall be open to the Legislature of any State to move the Supreme Court to restrain any other State from ill-treating or discriminating against or denying the Fundamental Rights of citizens to the individuals originating from the former State but who are settled or carrying on any trade, profession, occupation or business in the latter on the ground only of their not being original inhabitants of that State.'"
Sir, this is a very difficult matter which is already agitating
the minds of many public men; and unless we find a remedy for it in a constitutional manner, it would raise its ugly head to very unpleasant proportions.
Generally speaking sir, I think it is of the same character and fraught with the same consequences as the communal evil which has resulted in the partition of the country. Inter-provincial jealousies and rivalries, which are already showing themselves in variety of ways, would mean a menace to the country's integrity and the maintenance of proper friendly feelings between the various parts of the country which require urgent attention. And if we desire a constitutional solution, if we desire a peaceful amicable settlement of such problems, a provision of the kind I am suggesting is of the utmost importance. The manifestation of this sentiment in some form of discriminating taxation, if not legislation, and in the form of discriminating appointments in services and other advantages in trade, occupation or business to the persons originating from one part of the country and carrying on business trade or profession in another, are already known to us. One solution which is suggested is the reconstitution of several parts of the country on some form of internal homogeneity, like language. But that creates new difficulties. I am afraid the sentiment is such that, unless a harmonious and amicable arrangement is provided within the Constitution itself, these dangers will not be obviated.
It is possible that you have entrusted powers of this kind to the Central Government of Legislature. On that basis, you may have a feeling of some kind of justice being given to the parties complaining. For my part, I am afraid that, by their very nature, the Central Government or the Central Legislature may be suspected of being actuated by political rather than purely judicial motives; and that is why I suggest that the power be vested in the legislature collectively of a State to move the Supreme Court, which will always give, presumably, decisions on purely judicial lines so that any grievance of the kind implied in the amendment may be solved by unimpeachable and unexceptionable judicial authority on lines exclusively of justice.
Sir, such collective grievances no doubt may be difficult to take to a court of law, in as much as they may not manifest themselves in specific injury or specific harm to any particular individual, who would then have a cause of action and would be able to take the matter to a court of law. I am full aware of the difficulty; and so I suggest the remedy that you make a provision of the kind suggested so as to provide a check, on sectional basis which would help to prevent and to a great extent minimise at any rate the grievances that may otherwise crop up.
The possibility of the country completely solidifying and the sense of oneness prevailing and prevading all over the country is not to be undreamt of. But at the same time it will take some time. And before that sense of single homogenous nationality runs through every corner of the country, I think a salutary provision of this kind will be very helpful to avoid difficulties the magnitude of which I for one am afraid to contemplate. Hence my suggestion which I hope will be accepted.
Prof. Shibban Lal Saksena (United Provinces: General): Sir, I only wish to draw the attention of Professor Shah to the fact that under articles 9 to 10 we have already provided that there shall be no discrimination against any citizen on the ground of race, caste, place of birth etc., and that no citizen shall, on grounds only of religion, place of residence or birth etc. be ineligible or discriminated against for any employment or office under the State. As there are these provisions against discrimination on the basis of provincialism there seems to be no necessity to make this provision in a separate article as is here contemplated. My Friend wants that the Legislature of the State should move the Supreme Court. I think it is not proper to overdo the fear of provincial feelings and jealousies. Individuals can
get their remedy in civil courts. I think that by making this provision we shall be increasing provincial jealousy rather than diminishing it.
Shri H. V. Kamath: Sir, I feel that there is no valid reason for the insertion of an article of this nature at this stage. Professor Shah has drawn the attention of the House to the increasing inter-provincial or inter-State jealousies based on various considerations such a language, caste, etc. But, as Professor Shibban Lal Saksena has pointed out, the Chapter on Fundamental Rights has guaranteed these rights and their enforcement under article 25 and 13. It may be argued that article 25 confers the right on an individual and not on a corporate body to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. I do not know how the juristic, legal and constitutional experts will at a later date interpret this article 25. To my mind it confers the right on the individual only and not a corporate body such as a legislature or some other organisation. But the suggestion of Professor Shah is a remedy which in fact may be worse than the disease. He wants to prevent or alleviate as far as lies in human power the rousing of inter-provincial jealousies and rivalries leading to discrimination of various kinds.But to cure that disease, investing the legislature of a State with the right to move the Supreme Court to restrain another State, is not the proper treatment. Such an action on the part of one State is liable to be seriously misunderstood by the other State as an attempt to meddle in the affairs of that State. This would be a fatal consequences. Therefore, if at all the citizen of any State, who has not originated in that State but has settled there, has a grievance against the Government of that State, Part III has given him the right to move the Supreme Court. That should be adequate. There is no need for insertion of an article of this nature.
Dr. P. S. Deshmukh: Sir, I am not, like my Friends Professor Shibban Lal and Shri Kamath, content merely by saying that there is no need for the addition of a fresh article and that we should be content with the provisions regarding Fundamental Rights.
I wish to oppose very strongly the very suggestion that it should be competent for any State to complain against any other State on a matter like what is embodied in this article. I was really surprised that a man like Professor Shah should come forward and should try to protect the interests of the people for whom I never expected that he will have much sympathy. In making his speech he has referred to communal considerations also. It is of course the fashion to dub anybody as communalist, however much the critic himself is steeped in communalism and does, nothing else but help the people of his community, if not his own relatives only. This is the fashion of the day. Those who sponsor the cause of ninety per cent. of the people are dubbed as communalists, while those who never look beyond the small coterie of their own relatives and caste pose themselves as the most noble-minded and cosmopolitan-spirited persons. I would not have wished to refer to all this but I was really amazed that when there is nothing in this article about communalism, my learned Friend, Professor Shah, thought fit to refer to it. Actually he wants to protect the interests of the businessmen and the traders, the merchants and so on. Here I want to say with all the emphasis at my command that the trading and merchant profession in India has not proved an honest profession at all. It is a profession based essentially on cheating. If you see from day to day the way in which our food articles are sold, you will be amazed to see how they are adulterated, and he will be a boldman who says that he gets his food articles pure and unadulterated with something or the other. Irrespective of the profit they can make by legitimate means, the merchant class is not content with it. If under such circumstances, for instance, a State wants to bring a legislation
against this sort of adulteration of foodstuffs on a large scale, my Friend Professor Shah wants that some State which only consists of traders and businessmen should be in a position to move the Supreme Court so that the Supreme Court may take steps against all the States or any State which passes such legislation.
There is another fact which should be taken into consideration and that is the kind of usury which has been going on in India. In times to come, States. e.g. the Samyukta Maharashtra when it comes into being, will have to take steps against usurers who have taken possession of thousands and lakhs of acres of land by no other process except by cheating and usury. I am sure that it is the apprehensions and fears of these people that my Friend Professor Shah was talking about. And I would not blame them if they feel apprehensive. But if they have apprehensions and fears, the remedy lies in reforming themselves and behaving justly and fairly with the other members of the society and not to base their existence and their prosperity on cheating others. That would be a better remedy than to empower any State to go to the Supreme Court for their protection so that their nefarious actions could go unchallenged and unnoticed. From that point of view I do not even like the fundamental right by which anybody could go anywhere and acquire any land or property, because the acquisition of property on a large scale itself means that it has not been done by fair means and if any State comes forward to stop these unfair means, it should be entirely free to do so and not be debarred from punishing these enemies of society.
Sir, for all these reasons I think that an article like this would give a charter to dishonesty, a charter to all sorts of anti-social activities that some of our people are accustomed to. I hope, Sir, this sort of thing will not be permitted. Again, Sir, the word `minorities' is mis-interpreted. We understood minority and majority as between Muslims and Hindus. Later on the Sikhs came in and the Schedule Castes also were considered a minority. Now the term is sought to be applied to even small castes and communities amongst the Hindus themselves. The Hindu community as a whole is exploited from day to day by some of these minor Hindu castes and if there is a strong feeling against these castes, it is not based on communal feelings at all. It is based on the dislike of the exploitation of the masses which that caste has been carrying on. It is this exploitation that a State may well want to put a stop to, and provision like this should not be allowed to come in the way of any State acting in this direction.
Prof. K. T. Shah: In view of the argument advanced, I would request the House to give me permission to withdraw the amendment.
The amendment was, by leave of the Assembly, withdrawn.
Mr. President: Then we come to article 171.
Shri T. T. Krishnamachari: Since the provisions following the Chapter which begins with article 171 are more or less similar to the provisions which earlier the House has not yet decided relating to financial matters as well as the Supreme Court, we can not go back to those provisions and take up 109 again. Once we pass the financial provisions and the Supreme Court provisions, the provisions following the chapter which begins with article 171 will be easy to deal with as mutatis mutandis they are much the same.
Mr. Naziruddin Ahmed: We have not had notice that article 109 will be taken up today.
The Honourable Dr. B. R. Ambedkar: What does it matter:
Mr. President: Article 171 and 172 relate only to procedure.
Shri T. T. Krishnamachari: Article 172 relates to joint sittings and unless the composition of the upper House is decided, we will not be able to decide on the question of joint sittings. The articles following article 172 are much the same as those we have held over. But it is entirely left to the Chair to do what the Chair thinks fit.
Mr. President: There is notice, Mr. Naziruddin Ahmed, if you look at the Orders of the Day. Item
No. 2 there refers to the remaining articles of Chapters II and IV of Part V, and Part VI. So there is notice that article 109 may be taken up today. Shall we go back to article 109?
Honourable Members: yes.
Mr. President: We shall take up article 109.
The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, I move:
"That in article 109, for the words `if in so far as' the words `if and in so far as' be substituted."
(Amendment Nos. 1896 and 1897 were not moved.)
Shri T. T. Krishnamachari: Mr. President, Sir, I move amendment No. 1898 standing in my name, and in amendment thereof, I move amendment No. 147 of List III, Third Week, which reads as follows:
"That with reference to amendment No. 1898 of the List of Amendments for the proviso of article 109, the following be substituted :-
`Provided that the said jurisdiction shall not extend to a dispute to which any state is a party, if the dispute arises our of any provision of treaty, agreement, engagement, sanad or other similar instrument which provides that the said jurisdiction shall not extend to such dispute.'"
Sir, amendment No. 1898 and the amendment that I have now moved are more or less the same except that the amendment that I have moved states the whole proviso as it would stand if proviso (i) is deleted. The reason why proviso (i) is to be deleted is, for one thing, it refers to disputes in which the State for the time being specified in Part III of the First Schedule is a party which opens out a vista of agreements and disputes which are to be prohibited from coming within the scope of this article by this particular proviso. The House will remember that right through our deliberations we have been trying to avoid a specific reference to States in Part III of the First Schedule. As I have stated before-and it has also been stated by Mr. K. M. Munshi and Dr. Ambedkar-where it is necessary to provide specifically for these States, if the need still exists at such time as we come to the end of the discussions of the articles in the Draft Constitution, it will be provided for in a separate chapter, and, therefore, this proviso No (i) is entirely unnecessary, and it is only to avoid this particular provision, which will put these States on a different footing from other States which now form the provinces of India, that I have moved this amendment. Sir, it does not present any complications as it is merely an elimination of proviso (i). I hope the House will accept it.
(Amendment Nos. 1899, 1900 and 1901 were not moved.)
Shri Brajeshwar Prasad: (Bihar:General): Mr. President, Sir, I rise to oppose article 109. I am never tired of repeating the same argument because I feel that repetition may have some effect and may bring about a change in favour of a unitary system of Government. I am not in favour of vesting the power that has been vested under this article into the hands of the Supreme court. The Government of India has always enjoyed the power of adjudicating in a dispute between two States. I fully understand the role of the Supreme Court in federalism, but I am opposed to both federalism and the Supreme Court. I feel that if there is a conflict between two States, the Government of India and a State, the decision of the Government of India should be final. The provincial Governments are subordinate Governments.I have nothing more to add.
Shri A. Thanu Pillai (Travancore State): Mr. President, Sir, I am very happy to accord my full support to the amendment moved by Mr. T. T. Krishnamachari. We find that in the Draft a distinction was sought to be made between States in Part III of the First Schedule and States in Part I, evidently on the ground of the difference in the political relations between the States in Part III and the Centre and between the States in Part I and the Centre. Sir, after this Draft was prepared, a good many changes have taken place. We find that in this Draft nineteen States are mentioned by name in Part III and the others were not mentioned because they were expected to be
merged in large units. Now all the minor States have disappeared. Even of the nineteen units which were probably expected to remain, we now find only four or five and they are also fast coming into line with the other States, namely those that are known as the provinces. If there is any benefit that the people of the States in Part III should receive from the new Constitution that is to come into being, in my view it is right of approach to the Supreme Court. In these States till now, we have had no right of appeal to the Privy Council. Our courts are supreme. The High Court of Travancore exercises the same extensive powers in respect of that State as the Privy Council in relation to the provinces of India. Now conditions are changing and they must change. Mr. T. T. Krishnamachari said that provisions will now be made on the basis that the Supreme Court will have necessary7 agreement of the States in Part III be not secured in time, they will be excluded from the operation of these provisions. I fully hope, Sir, that such a contingency will not arise. Everybody concerned in this matter including those that are responsible for running the Government of India and those that have a right to speak on behalf of the States in Part III will I hope appreciate that the people of these States should have the right to approach the Supreme Court in the same way as the people of the provinces. There should be absolutely no distinction in regard to this right. With that hope I fully support the amendment moved by Mr. T. T. Krishnamcahari. I wish to refer to another point in this connection. Constitution-making in the States in Part III has now been held up by an order or direction from the Central Government. The Government of India are preparing a model constitution for the States. I do not know at what stage that work is now. The question is has to be decided, and that promptly, whether the Constitution for the States should be framed here in this Constituent Assembly or in the States themselves by their respective Constituent Assemblies. In any case, delay should be avoided and this until the Constituent of the States in Part III is also framed and passed. Therefore, no time should be lost and necessary steps should be immediately taken in that regard. I do not think this Constituent Assembly will be out of order in seeing to it that the Constitution-making in the States in Part III is taken up soon and completed because this Constitution will not be capable of being put into force until that Constitution is also passed. I hope that that matter would also receive the earnest consideration of this House and the Government of India.
(Amendment Nos. 1899 to 1901 were not moved.)
The Honourable Dr. B. R. Ambedkar: I do not think it is necessary to say anything. I accept Mr. T. T. Krishnamachari's amendment.
Mr. President: The question is:
"That for the proviso to article 109, the following be substituted :-
"Provided that the said jurisdiction shall not extend to a dispute to which any State is a party, if the dispute arises out of any provision of a treaty agreement, engagement, sanad of other similar instrument which provides that the said jurisdiction shall not extend to such dispute.'"
The amendment was adopted.
Mr. President : The question is:
"That in article 109 for the words `if in so far as' the words `if and in so far as' be substituted."
The amendment was adopted.
Mr. President: The question is:
"That article 109, as amended, stand part of the Constitution."
The motion was adopted.
Article 109, as amended, was added to the Constitution.
Mr. President: We may go to article 110.
Pandit Thakur Das Bhargava: Sir, I have given notice of amendments Nos. 182 and 183 to add a new article 109-A. I would request you, Sir, kindly to allow them to stand over.
Mr. President: They may stand over. But, if as a result of any other articles being accepted, these amendments become infructuous, then you take that risk.
Shri T. T. Krishnamachari: may I clarify the position, Sir?
The position is that this article 109-A stands on its own. It is entirely unrelated to any article that comes thereafter. Therefore, the danger that the Chair visualises will not happen and it will not become infructuous by reason of later articles being passed; the subject covered is a new subject. If the Chair wishes, it may be allowed to stand over.
Mr. President: If it does not become infructuous, it will be taken up later.
These two amendments will remain for the present.
Mr. President: The motion is:
"That article 110 form part of the Constitution."
Shri Raj Bahadur (United States of Matsya) : Mr. President, Sir, I beg to move:
"That in clause (1) of article 110, for the words `a State' the word `the territory of India' be substituted."
There are two principal reason for which I wish to move this amendment. The term `a State' is definitely one which restricts and limits the interpretation and meaning of this article. We can very easily contemplate the possibility of acquiring by conquest or otherwise new territories for India. So far as the definition of "the territories of India" is concerned, at present article I clause (3) says:
"The territory of India shall comparise-
(a) the territories of the States;
(b) the territories for the time being specified in Part IV of the First Schedule; and
(c) such other territories as may be acquired."
If we retain the term `a State' in article 110, territories that may be acquired hereafter, or that may of their own free will come to be included in the territory of India will not fall within the purview of this article and as such, it is necessary, in my humble opinion, that this change should be made.
Again, if we turn to article III, it would be found that the term used there is not `a State, but `territory of India.' Article III, for instance, runs as follows:
"An appeal shall lie to the Supreme Court from a judgment, decree or final order in a civil proceeding of a High Court in the territory of India............."
Again in article 112, the same words "territory of India" are used. It is therefore necessary that in article 110 also, the same term `territory of India' should be used and not `a state'. For these reasons, I commend this amendment for the acceptance of the House.
(Amendment No. 1903 was not moved.)
Mr. Naziruddin Ahmad: Sir, with your permission, I shall move amendments 1904 and 1907 together, as they are related.
Sir, I beg to move:
"That in clause (1) of article 110, the words `as to the interpretation of this Constitution be omitted."
I also move:
"That in clause (2) of article 110, the words `as to the interpretation of this Constitution' be omitted."
I think these are consequential amendments, consequential upon certain enactments that we have already passed in the Legislative Assembly. I submit, Sir, that these two amendments have a great constitutional importance.
In clause (1) of article, 110, it is provided:
"An appeal shall lie to the Supreme Court from any judgment, decree of final order of a High Court in a State, whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution."
I want to delete the last few words `as to the interpretation of the constitution'. The effect of this deletion would be that an appeal shall lie to the Supreme Court from a judgment, decree or final order of a High Court in civil or criminal or other proceedings if the High Court certifies that the case involves a substantial question of law. If we keep the words objected to, the result would be to confine the power to grant certificate to errors as to the interpretation of the Constitution, and it will therefore automatically prevent the High Court from granting certificate if there is an error of law which does not involve the interpretation of the Constitution. The effect would be the grossest violations of law laid down in the Criminal Procedure Code,
Evidence Act, the Indian Penal Code etc., will go unchallenged. Even if there is the grossest error in the decision of a High Court, then the High Court will have no power to grant certificate in order to enable party affected to come to the Supreme Court.
The second amendment relates to clause (2). It provided that where the High Court has refused to give such a certificate the Supreme Court may, if it is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution, grant special leave from such judgment. We are therefore reduced to this that the High Court can grant certificate for appeal if there is an error affecting the interpretation of constitution and under clause (2) the Supreme Court will grant leave if there is a substantial question of law as to the interpretation of the Constitution. I submit that this Draft was made at a time when the Privy Council was functioning. In the meantime we have passed a law in the Legislative Assembly empowering the Federal Court to deal with matters which were pending before the Privy Council relating to civil matters. At that time these two clause were fully justified. There was division of labour between the Federal Court and the Privy Council. The Federal Court had jurisdiction to entertain appeals on other matters which involved interpretation of the Constitution- the Government of India Act. So far a the Privy council was concerned it entertained direct appeals involving question of law but which did not involve a question of interpretation of the Constitution. If any interpretation of the Constitution was involved, there was an appeal from the Federal court to the Privy Council. Now that power of the Privy Council is gone. The powers of the Privy Council and the Federal Court are to be united in the Supreme Court. The powers to restrict the right of the High Court to grant a certificate for an appeal to the Supreme Court only when the grant a certificate for an appeal to the Supreme Court only when the interpretation of the Constitution is involved is now obsolete, and the Federal Court has been partly enjoying and the Supreme Court will enjoy of powers of the Privy Council also. In these circumstances the powers of the Privy Council and the powers of the Federal Court as hitherto enjoyed should be combined and should be given to the Supreme Court. In fact whether the question relates to interpretation of the Constitution or otherwise, the High Court should be enabled to grant a certificate, and the Supreme Court should be enabled to grant special leave, irrespective of the question whether there is a question of interpretation of Constitution or not. There may be grave errors of law affecting numerous Acts other than the constitution, and obviously appeal should be allowed on certificate by High Court on those grounds too. Then there is article 112 which tries to save the situation to a certain extent "that the Supreme Court may in its discretion grant special leave to appeal from any judgment, decree or final order in any cause or matter, passed or from any judgment, decree or final order in any cause or matter, passed or made by any court or tribunal in the territory of India except the States for the time being specified in Part III of the First Schedule, in cases where the provisions of article 110 or article 111 of this Constitution do not apply." Therefore wherever the High Court did not grant leave or could not grant under clause (1) of article 110 or wherever the Supreme Court could not grant special leave under clause (2) of that article, then the Supreme Court has a residuary power to grant special leave. The result would be that if there is a grave failure of law in the decision of a case not involving an interpretation of Constitution, the High Court would be precluded from granting any certificate. But under article 112 the Supreme Court alone would be empower the High Court to grant special leave. To this extent there is a clash between clause (2) of 110 empowering the Federal Court to grant leave
where the question of law involves the interpretation of the Constitution and article 112 allowing the Supreme court to grant special leave in other cases. So by combining clause (2) of article 110 and article 112 the Supreme Court has been given power to grant special leave in any case involving a question of law. While this power is given to Supreme Court the High Court's power to grant a certificate is confined only to error of law affecting the interpretation of the Constitution. If an error of law is considered to be a serious matter which requires correction by Supreme Court, then the High Court should be enabled to grant certificate in order to make an appeal possible in the Supreme Court. Of course the Supreme Court is authorised to grant special leave but this would be highly inconvenient and expensive. A party may more easily apply to the High Court for a certificate, and a special leave matter before the Supreme Court will involve delay and expenditure which many persons may not be able to avail of. In these circumstances the net effect of the amendment suggested would be to allow the High Court to give a certificate of appeal to Supreme Court in case there is a substantial question of law.
Dr. Bakshi Tek Chand (East Punjab: General): In ordinary cases?
Mr. Naziruddin Ahmed: Yes.
Dr. Bakshi Tek Chand: That is covered by article III (1) (a) (b) and (c).
Mr. Naziruddin Ahmed: The difficulty is that these were drafted in conditions existing before we passed the Act depriving the Privy Council of its jurisdiction of appeal. Articles 110, 111 and 112 should be combined and redrafted. In fact there is plenty of duplication as well as of gaps. The simple thing is enabled to grant certificate and also the Supreme Court should be enabled to grant leave involving question of law.
Mr. President: Does No. 111 cover cases of criminal nature also?
Mr. Naziruddin Ahmed: No.
The Honourable Dr. B. R. Ambedkar: We are making provision for that by a separate article.
Mr. Naziruddin Ahmed: I am very grateful to you, Sir, for pointing out that article 111 does not make any provision for criminal cases. In fact this is one of the difficulties felt, and it is an anomaly that while we are enabled to go to the Federal Court for ordinary civil appeals, for criminal cases involving the life and property of a citizen we have to go direct to the Supreme Court. I suggest that a simple test would be instead of making a distinction between a question involving the interpretation of Constitution and other questions of law, the test should be a question involving a substantial question of law,whether of interpretation of Constitution or otherwise. The distinction between the question of law involving interpretation of Constitution and other questions of law was justified under old conditions where there was a division of jurisdiction between the Federal Court and Privy Council and the question turned upon the law involving interpretation of constitution or other questions of law. Now, as the functions of the Privy Council and the functions of the Supreme Court will unite, this nice distinction which was very much justified in old circumstances is no longer necessary. Therefore this distinction should be entirely wiped out.
Sir, as you have pointed out, there is a lacuna so far as criminal cases are concerned and article 111 does not deal with them, and we are told that something else is coming up. We would like to know when this kind of a new infiltration of important provisions will stop. In fact, for poor Members like us, it is impossible to keep pace with the great amount of laxity with which serious amendments are showered upon the Members. It is difficult for us, without sufficient time to take count of all the implications of these sections. The Members should have an overall and complete picture of the whole thing. Now criminal matters are omitted, and we are informed that another provision is to be made. I respectfully suggest that articles 110, 111 and 112 should be reconsidered. Article 112,
according to me, would be absolutely unnecessary. If we give power to the High Court to give certificates in questions of law, and when we give special leave to the Supreme Court where the High Court refuses to give it, then the entire matter would be covered. Instead of making a distinction between interpretation of the Constitution and other questions of law, instead of making a distinction between civil and criminal cases, the sole question will be a substantial question of law-one provision for the High Court and another provision for special leave to the Supreme Court. I think matters would be greatly simplified in the way I suggest and I think a fresh draft would be necessary.
Mr. President: There are certain other amendments to this article.
(Amendments Nos. 1905 and 1906 were not moved.)
Mr. President: There are two amendments arising out of amendment No. 1906, but I think they are covered by the amendment just now moved by Mr. Naziruddin Ahmed. It is in the same words, practically. Nos. 148 and 149.
Pandit Thakur Das Bhargava: I do not propose to move it.
Mr. President: Then No. 149 also goes.
(Amendment No. 1908 was not moved.)
Mr. President: No. 1909 in the name of Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar: I move:
"That in clause (3) of article 110, for the words `not only on the ground that any such question as aforesaid has been wrongly decided, but also,' the words on the ground that any such question as aforesaid has been wrongly decided and with the leave of the Supreme Court be substituted."
The existing language is somewhat awkward and that is the reason why we are putting it in a different way so that it may read without any difficulty. The clause now will read as follows :-
"Where such a certificate is given, or such leave is granted, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided, and with the leave of the Supreme Court, on any other ground."
(Amendment No. 1910 was not moved.)
Mr. President: These are all the amendments to this article. If anyone wants to speak, he may do so now.
Shri Alladi Krishnaswami Ayyar: (Madras: General): Mr. President, Sir, I would like to make a few remarks in regard to certain observations made by Mr. Naziruddin Ahmed. the scheme of the different article is as follows. So far as article 110 is concerned, irrespective of any value, if a substantial question as to the interpretation of the constitution arises, an appeal lies o the Supreme Court. That has no relation to the value of the subject-matter. It has relation only to the nature of the question raised. The question may be raised in any proceeding; it may be raised in a criminal proceeding, it may be raised in any proceeding; it may be raised in a Criminal proceeding, it may be raised in a civil proceeding. It may be raised in an action in which the amount or value of the subject-matter is lakhs of rupees or a few hundred rupees. Though it has no bearing directly on article 110, it is necessary to bear in mind the scheme of the different articles. Article 111 deals with the general right of appeal to the Supreme Court. But if in the course of a general appeal to the Supreme Court in which civil rights are involved between two parties, it will be open to a litigant to raise a constitutional question, though he has not availed himself of the remedy under article 110, because the theory is that when the whole appeal is before the Supreme Court, it will be open for the aggrieved litigant to raise a constitution question as incidental to the determination of the whole case. Now, the point has been raised that in every case of a wrong interpretation of law, irrespective of the valuation of the subject-matter, there must be a right of appeal to the Supreme Court. I believe that was the main substance of the argument raised by Mr. Naziruddin Ahmad. Now, such cases are provided for article 111 (c). These are Acts and Acts, regulations, orders and so on. Some immaterial point may be raised in
the different courts in this great continent. It does not mean that every case, irrespective of the nature of the subject-matter must come up before the Supreme Court. Though the valuation may be a small one, still the point may be so important, may affect other cases, and may affect other litigants that it is as well that the Supreme Court is invested with jurisdiction to entertain an appeal. That is why in article 111, clause (c) the general provision is made "That the case is a fit one for appeal to the Supreme Court". It has no relation to the value. It may be of any value. But if it is a matter affecting the general community, or if it is of such special importance, the litigant will have the right to appeal to the Supreme Court, if the High Court certifies that the case is a fit one for appeal to the Supreme Court, if the High Court certifies that the case is a fit one for appeal to the Supreme Court. Even apart from article 111, you have article 112, which gives the Supreme Court the right to grant special leave "to appeal from any judgment, decree, or final order in any cause or matter passed or made by any court or tribunal in the territory of India." That gives a very wide power to the Supreme Court. There again it will to some extent depend upon the discretion that is exercised by the Supreme Court. It may be a civil case, a criminal case, a small subject-matter or a large subject-matter. But still under article 112, the litigant will have the right to appeal to the Supreme Court. There is absolutely no reason why the Supreme Court should not grant special leave if the case is of sufficient importance. Besides this, the Court has original jurisdiction in all cases involving fundamental rights. What other safeguard is necessary? Unless the courts are to be the sporting field of litigants there is absolutely no point in multiplying the right of appeal. You have a right of appeal, a right to seek the intervention of the Supreme Court when fundamental rights are involved. You have the right to seek intervention by way of special leave. Later on, I believe there will be an amendment even in regard to criminal cases to enable Parliament to invest the Supreme Court with criminal jurisdiction. I submit, Sir, that this much may be said of the Supreme Court. It has wider jurisdiction than any superior court in any part of the world, if only you survey the Constitution of other countries. Therefore under those circumstances, all the cases which do not involve constitutional questions, can come up before the Supreme Court and the litigant can have his wrong redressed before the Supreme Court.
So far as article 110 is concerned, it deals only with constitutional questions. It must raise a substantial question of law as to the interpretation of the Constitution. That is all that is necessary for the particular purpose: and if and when the appeal is lodged on a constitutional question, it will be open to the Court, not merely to deal with the constitutional question, but to go into the whole appeal and re-hear, so to speak, the whole case on merits, if the interests of justice demand it: and as a matter of fact, from my experience of the Federal Court, I can say that in several cases where an appeal has been lodged on a purely constitutional question, the Court has gone into the merits of the case and decided really on other points. Sometimes the constitutional point is like a peg on which the litigant wants to hang his own appeal. He merely starts a constitutional question. The High Court grants the leave. The matter comes up before the Supreme Court. Then the Counsel feels that there is not much force in the constitutional point and then he practically concentrates his attention on the other points in the case. That is good enough. But we need not go further and say that in every case in which a question of law arises in the whole of India in any court an appeal must lie to the Federal Court. It will certainly be in interest of lawyers and it may be in the interest of rich litigants but certainly, it will not be
in larger interest of this country.
Shri Rohini Kumar Chaudhuri (Assam: General): Sir, I hope I am not rushing in where angels fear to tread ! But confusion was created in my mind by the speech of my honourable Friend. Mr. Naziruddin Ahmed. That was further enhanced by an amendment which was moved by my honourable Friend Dr. Ambedkar.
The plain question which I want to ask is whether, as in the past, a man convicted in a criminal case will have a right of appeal or of revision or anything of that kind to the Supreme Court or not. I think the lawyer Members of this House remember very well that Privy Council judgments were passed in at least two important cases where the persons accused had been ultimately saved from the gallows. I want to know whether the provisions which have been laid down in articles 110, 111, 112 and so forth have left any room for such a remedy being sought in the Supreme Court or not. We find. Sir, that we can get a certificate only if we infringe the Constitution. But if otherwise a serious case of miscarriage of justice arises there is no room for getting a certificate from the High Court or leave from the Supreme Court. It is only when it has been proved that this Constitution has been infringed that you can file an appeal and then you can raise other points if you infringed that you can file an appeal and then you can raise other points if you are allowed. As the article originally stood, once you can show that the Constitution has been infringed, and once you get a certificate on that ground either from the High Court or the Supreme Court, then you are entitled to appeal or raise other points not relating to the infringement of the Constitution at all.
New the gate is closed in the very first instance. It is very difficult to find out cases where the Constitution has been infringed. It is only when some legislation or some ordinance is passed in direct contravention of the Constitution do we find that there has been an infringement of the Constitution. But in most cases there will be no such instances of complain of. Would it, then, in those circumstances be possible for any person, who is convicted and sentenced to death, or has received any other sentence, to go to the Supreme Court by any pretext or not?
I do not understand why we say here that the moment the Constitution is infringed you can raise any pint before the tribunal. It may be that the Constitution has been only slightly infringed. As a matter of fact the ordinary law has been violated.Even in those cases the Supreme Court is competent to give you relief. But if you cannot show that the Constitution has been infringed, no matter how serious the injustice might have been, you are not entitled to go to the Supreme Court at all. I find, Sir, that article 111 allows you to move the Supreme Court even in civil matters. After all, the loss of property and the loss of money cannot be as important as the loss of life and liberty ! You have given ample scope to those who are aggrieved by the judgment of a Civil Court to go the Supreme Court. But you have left no door open for persons convicted or punished for loss of liberty or life by a Criminal Court. That, I think, is taking away the rights which we today possess in going to the Privy Council.
Thirdly, I find that there is a reference in article 112 where it is stated that the Supreme Court may interfere or allow an appeal on other grounds if they are affected by any judgment. Article 112 says:
"The Supreme Court may, in its discretion grant special leave to appeal from any judgment, decree or final order in any cause or matter passed or made by any court or tribunal in the territory of India..............."
I want to know whether the word `judgment' here covers also `judgment' in criminal cases.