Friday, the 3rd June 1949
Here in article 110 you specifically mention `criminal court'. You say here that an appeal shall lie to the Supreme Court, from a judgment, decree or ordinary order of the High Court of a State, whether in civil, criminal or other proceedings. In article 111 you mention only about civil courts; you do not mention criminal courts at all. In article 112 you mention about judgment and you do not say whether it is a judgment in a civil court or a criminal court. In article 113 you clearly state that if there is any doubt about interpretation of any law or any proceeding in a High Court then a reference will be made to the Supreme Court. There also you expressly state about civil, criminal or other proceedings. So that, one can interpret, from a reading of these articles, that you expressly bar the Supreme Court from exercising jurisdiction in a decision of a criminal court, unless the party aggrieved can show that the matter relates to the interpretation of the Constitution. You put no such restriction with regard to article 111; you put no such restriction with regard to article 113. Therefore, Sir, the question I would ask is a very simple one. As at present, the Privy Council can interfere in criminal cases where mandatory provisions of the law are violated. We have no such provision in these articles and I shall be glad if a similar provision is made.
Further more, Sir, I have a grievance, so far as the amendment moved by the Honourable Dr. Ambedkar is concerned. Clause (3) of article 110 as it stood reads, as follows:
"(3) where such a certificate is given, or such leave is granted, any party in the case may appeal to the Supreme Court not only on the ground that any question as aforesaid has been wrongly decide, but also on any other ground."
I submit, Sir, that the clause as it stands is much more liberal than the amendment which has been moved to this clause by Dr. Ambedkar.
Pandit Thakur Das Bhargava: Sir, I join the complaint of Mr. Naziruddin Ahmed that the provision relating to the Supreme Court are so complex that they pass the understanding of an ordinary person like myself. The amendment that are coming in are not so clear as to give us an over-all, a clear picture of what the persons who are in charge of making the Constitution really mean.
Now, Sir, my honourable Friend, Mr. Naziruddin Ahmad has moved that the words relating to the interpretation of the Constitution appearing in clause (1) and (2) of article 110 may be deleted. Exception has been taken on the ground that if these words are deleted, the door will be left very much wide open that there will be such a flood of litigation that the courts will not be able to cope with it. Sir, my jumble complaint in this respect is that we have been proclaiming day in and day out that we want to give equality of status and opportunity to all people, that in the eyes of law all people would be equal. Now, Sir, I beg to point out that in cases where the amount of property involved is Rs. 20,000 and above, there will be direct appeal to the Supreme Court and in cases which are fit once in which substantial questions of law arise in regard to civil matters,even then, if the High Court, certifies, there will be appeal to the Supreme Court. What about the poor people who do not possess so much valuable property? Why should not a man, say possessing in all property worth Rs. 5,000 which is involved in litigation have the right of appeal? The words relating to the interpretation of the Constitution, in my humble opinion, will so narrow down the beneficient effect of article 110, that in very few cases will appeals be allowed.
Then, so far as the criminal jurisdiction is concerned, my humble complaint is that it so appears that this Assembly is full of civil lawyers and they do not care about the criminal aspect of the jurisdiction of the Supreme Court. In article 110 the word "criminal" does occur, but there will not be many cases in which the question of
interpretation of the Constitution will be involved so far as criminal jurisdiction is concerned. Substantial questions of law affecting the personal liberty and lives of individuals may arise, but those cases will be outside the purview of article 110, unless and they relate to the interpretation of the Constitution. similarly, article 111 also confines itself to civil cases. It will be pointed out, and it has been pointed that article 112 to a certain extent concerns itself with the criminal jurisdiction of the Supreme Court and further we have an amendment by Dr. Ambedkar that Parliament may frame laws in regard to the criminal jurisdiction of the Supreme Court. My fear is that it may take years and years to do so. What is then to happen between now when we are taking away the powers of the Privy Council and the time by when the law will be passed by Parliament? Many persons who would want to appeal to the Supreme Court will not be able to avail themselves of that opportunity. I want that any person who loses his life or loses his liberty should have an absolute right of appeal and not seek special leave to appeal. We know that the Privy Council does not interfere in ordinary cases, but there are many cases on record in which as soon as the conscience of the Judges of the Privy Council was touched, they transformed ordinary questions into questions of law.
My contention, Sir, is that when we are making a New Constitution for this country we should liberalise the jurisdiction, we should see that in all cases, in all fit and proper cases, the ordinary man gets full justice. It may be that there may be special leave to appeal. But such leave may or may not be granted. It is a matter of discretion. I want that in such cases when a person has been sentenced to death, or there is conviction by the High Court after acquittal order is set aside on Government appeal, there should be an absolute provision for every person to have the right of appeal.
It has been stated by Shri Alladi Krishnaswami Ayyar that if the scope of article 110 is widened many cases will arise in respect of wrong interpretation of law and that there will be a flood of litigation. But may I submit that the words are `substantial question of law'? May I ask why should the Supreme Court be given these powers at all, unless the intention is to secure uniformity in the territories of India with regard to law as the declaration of law by way of judgments and decisions will have the effect of law itself? Therefore my submission is that when a question of law is concerned, it is not that you are opening the flood-gates of litigation; on the contrary if such a question is decided once for all you will be closing the gates of litigation.
It has been said also that in the case of a death sentence if such opportunity is allowed, the amount of appeal work would be so large that you will require many judges. It may be so. I do not want to deny that the amount of work will be very great. But it does not matter to the country at large if A holds Rs. 20,000 worth property or B does it, if the High Court decides once for all as to who is to hold it. This is enough for protection of civil rights. But the question of life and personal liberty is different. Those who are condemned to death cannot be recalled to life it the wrong sentence is carried out. Life is much more important than any amount of civil rights. Therefore, I submit that whereas you provide two or three appeals in civil suits involving Rs. 20,000 or so, in these cases of sentence of death you provide only one appeal. It is a long-standing complaint, and all legal practitioners know it, that in many cases in courts injustice is done. If we look at the number of appeals accepted as compared with the convictions, it will be apparent in large number of cases appeals are accepted. It is quite true that a person does not get justice in the original court. I am not complaining of district courts. In very many cases of riots in which more than five persons are involved, a number of innocent persons are
implicated. I can speak with authority on this point. I am a legal practitioner and have been having criminal practice for a large number of years. If we want to do justice to the people, we must make it a rule that in all questions of death an appeal as of right should be given to persons sentenced to death. When we proceed to consider the other articles we shall have to remember that if this article is not changed such appeals as I have mentioned will never come under its purview.
Shri Krishna Chandra Sharma (United Provinces: General): Sir, I rise to oppose the amendment of Mr. Naziruddin Ahmed. The whole scheme of this article has been taken from section 205 of the Government of India Act. The language used there is: `if the High court certifies that the case, involves a substantial question of law as to the interpretation of this Act. Here in this article we have substituted the word `Act' by the word `Constitution.' Article 111 is a reproduction of section 206 of of the Government of India Act. The cases mentioned by Mr. Naziruddin Ahmed are covered by article 111(c) `that the case is a fit one for appeal to the Supreme Court'.
Then I may point out that criminal cases are covered by article 112. Those cases that are fit to go to the Supreme Court will be taken up by the Supreme Court for its final judgment. I submit that it is in impossible proposition that every case of murder or capital sentence should be sent to the Supreme Court, because in that event no less than a hundred judges would be required in the Supreme Court. Our judicial system has been modelled on that of the British. In England, before 1908, there was no appeal in criminal cases. It was only in 1908 that a provision for appeal was made. The argument against the appeal was that a jury and a judge decided the cases, the jury gave the verdict and the judge confirmed it; therefore, there is hardly any room for doubt as to the correctness or the validity of the judgment concerned. In India instead of the jury, in murder cases, there are the assessors and there is the judge. they decide the cases. There is a provision for the confirmation of death sentences by the High Court and an appeal lies to the High Court. I do not think that any further remedy in every case is necessary. As I said before under the circumstances, taking the facts as they are, it is impossible for the Supreme Court to deal with so many appeals coming from the different High Courts. Therefore, the provisions made in the Constitution are ample to meet the ends of justice and no further provision is necessary.
Prof. Shibban Lal Saksena: I wish to oppose this article, not from the point of view of a lawyer but from the point of view of person who values the civil liberties of the people. My Friends, Messrs. Naziruddin Ahmed and Bhargava, have made out a strong case for the deletion of the words `as to the interpretation of the Constitution'. It is difficult to disagree with Sir Alladi when he warned us just now against too much litigation. One should always wish that the habit of litigation should be given up. I fervently hope that the present system of justice will be soon changed, so that justice pure and simple should be guaranteed to the people, cheaply and quickly. I have carefully studied the provisions regarding the powers of the Supreme Court and listened to the speeches made here. I am not able to find any provision which guarantees to the citizen who has been condemned to death or whose civil liberty has been taken away that he shall have an inherent right of going in appeal to the highest tribunal-the Supreme Court. I have seen many cases where people were condemned to death. I had the misfortune during the 1942 movement to live in a condemned cell for about twenty-six months and about thirty-seven men were hanged in my presence. There were eight cells for condemned prisoners in one block and I occupied one of them. So I was privileged to be with the condemned prisoners, to meet them and to talk and to live with them. Out of the thirty-seven men, seven
were acquitted, ten had their sentences reduced to transportation for life were real murderers many who were sentenced to transportation for life and the rest twenty were hanged. I am sure Sir, that many who were acquitted were real murderers many who were sentenced to transportation for life were real murderers and many who were hanged were innocent. At least I was convinced in the case of seven persons that they were perfectly innocent. Still they were hanged. I do not say that the Supreme Court will always know by some divine inspiration what is true. That is why I stand for our abolition of Capital punishment altogether. But so long as we do not abolish the death penalty, I feel that the man who is condemned to death must have the right of appeal to the highest Tribunal. This must be an inherent right and not limited by any conditions. I am fully prepared to accept the advice of Shri Alladi on other subjects. I am prepared to limit the functions of the Supreme Court in hearing appeals in Civil Cases, but I do wish that the men who are condemned to death should have the inherent right of appeal to the Supreme Court and no man should be hanged unless the Supreme Court has confirmed the death sentence. The other day I was hearing at another place my learned Friend, Dr. Bakshi Tek Chand, when he told us that when he was a judge of the Lahore High Court about three hundred cases of murder went to him in appeal every year. Probably the combined Punjab was very turbulent, considering the number of murders there, but the East Punjab and the other provinces are not so violent. I do not think that in the whole of India, the number of murder appeals will exceed seven or eight hundred. I do feel that the people who are condemned to death should have the inherent right of appeal to the Supreme Court and must have the inherent right of appeal to the Supreme Court and must have the satisfaction that their cases have been heard by the highest tribunal in the country. I have seen people who are very poor not being able to appeal as they cannot afford to pay the counsel. I see that article 112 says that the Supreme Court may grant special leave to appeal from any judgment, but it will be open only to people who have no money and who are poor will not be able to avail themselves of the benefits of this section. Therefore in the name of those persons who were condemned to death and who though innocent were hanged in my presence, I appeal to the House that either in this article or in any subsequent article there must be made a provision that those who are condemned to death shall have an inherent right of appeal to the Supreme Court.
Mr. Frank Anthony : (C.P. & Berar : General): Sir, I had no intention to participate in this debate until I heard my colleague, Pandit Thakur Das Bhargava, place his point of view before the House. I think that his point of view is an unexceptionable one and one which we, If we are earned about these provisions, are bound to accept. I have just looked at the provisions of articles 110 to 112 and I found that ample security has been given to the civil litigants. I cannot help feeling that the people outside are bound to say that these provisions have been conceived in the spirit of civil litigation, conceived by those who are interested as civil lawyers in continuing litigation, conceived by those who are interested as civil lawyers in continuing litigation. We have made no restrictions in the matter of civil appeals. Article 111 gives an absolute and automatic right of appeal to the Supreme Court in all suits involving twenty thousand rupees or more. I think this is an absolutely absurd limit. If we set the limit at one lakh or two lakhs, where is the hardship involved to the civil litigant? I confess I cannot understand why the Law Minister and those who think like him feel that this kind of justice must be done to the civil litigant in cases involving property of twenty thousand rupees and more, while on the other hand they say that where a man has been sentenced to death or has been given
transportation for life it does not involve a denial of liberty or justice sufficient to give him an automatic right of appeal. My friends may say that article 112 gives a certain amount of discretion to the Supreme Court to allow any appeals in respect of criminal matters, but it is a matter of discretion and it is also qualified by the condition that it must involve a substantial question of law. I feel, Sir, as one who has had a lot to do with criminal cases and murder cases that we cannot give overdue or more than ample guarantees in criminal cases, particularly where a sentence of death or a sentence involving transportation for life has been imposed. As my Friend, Pandit Thakurdas Bhargava, has pointed out, any person who has handled criminal cases, particularly murder cases, will be able to testify from his personal knowledge to serious miscarriages of justice on account of misinterpretation of facts, tremendous diversity of conflict in the matter of legal interpretation. In India, in one High Court, in the case of two people where one inflicts a fatal injury while the other holds the deceased, both might be sentenced to death, while in another High Court, one might be sentenced for murder while the other may only be fined for having committed simple hurt. And yet my Friend says that where we have this diversity of judicial decisions, when a man has been sentenced to death or transportation for life, it does not involve sufficient reason or sufficient justification to give him an absolute right of appeal. The argument is made that if we give an absolute right of appeal in each case where a sentence of death has been passed, we will have to have scores of judges. This, Sir, is a tenuous and untenable argument. It is axiomatic that the volume of civil litigation in this country is probably ten to fifteen times the volume of criminal cases. Yet there is an absolute right of appeal in civil cases involving twenty thousand rupees or more. They have set greater sanctity on property than on human life. If we really want to restrict the number of judges, if we really want to restrict the volume of cases going to the Supreme Court, we must restrict the property value in the case of civil appeals. what real hardship will it cause to a bloated capitalist, to blackmarketeers if for cases involving less than three lakhs or four lakhs they are not given any kind of right of appeal to the Supreme Court? Can it be said that there is anything more than the merest justice in providing that a man who has been sentenced to death should have the absolute and unqualified right of appeal to the Supreme Court irrespective of whether the case involves a substantial question of law or not? Any other decision by this House, to my mind, will involve a perversion of what should be a fundamental juristic principle. My honourable Friends sitting on the back benches say that other countries of the world do not recognise an absolute right of appeal when a death sentence has been passed. Are we to be guided by precedents from other countries? If conditions in our own country are such as Pandit Thakur Das Bhargava pointed out, what criminal lawyer is not able to testify that in nine out of ten riot cases, two, three, four, five or six innocent people, as a matter of course, are involved? Innocent people have very often been sentenced to death after having been falsely involved in riot cases read with murder. I cannot understand the argument of my honourable Friends who say that article 112 which gives discretion to the Supreme Court to call a case before it when any substantial question of law is involved, gives more than ample protection to people whose liberty may be taken away from them, and I also concur in the fear expressed by my honourable Friend, Pandit Thakur Das Bhargava when he says that to leave it within the discretion of Parliament is to practise escapism of the worst type. It is more likely that the effect of such a clause will be still-born especially with persons exercising a powerful influence such as the Law Minister. Parliament may do
nothing in order to ensure that persons who have been sentenced or have been deprived of their liberty will get any substantial rights of appeal to the Supreme Court. For this reason, Sir, I feel that this is a vital matter, and it is a matter on which I would request the Law Minister should defer consideration, if necessary, so that the matter can be reconsidered more fully by the House at a later stage.
Dr. P. K. Sen : (Bihar: General): Sir, the intention seems to be clear that article 110 provides for a special set of cases where an interpretation on of the Constitution is called for. Article 111 again provides for all civil cases which have not this special characteristic. I have no quarrel whatsoever with the wording or the spirit of either of these two sections. What I am concerned with is to place a few humble observations before this House in respect of article 112. I have very great sympathy with the point of view which has been expressed in this House by my honourable Friend, Pandit Thakur Das Bhargava. Although there is some provision with regard to special leave in article 112, it hardly give that particular emphasis to the question of appeals against death sentence that it should. I do not know nor do I suggest in what manner it should be done. It may be that it will rest with the Parliament to make provisions with regard to the acceptance of appeals in regard to cases that involve death sentence only or acceptance of appeals in regard to not only death sentence matters but also other important criminal matters. But one thing I am perfectly clear about in my mind and that is this, that in this question we should not by any means follow the British convention as a model one. In matters of punishment, in matters of penal legislation, Great Britain has been the most backward and the most conservative of all countries. Whereas we find that in most countries of the West and in several big States, at any rate, the death sentence has been abolished, Great Britain is still talking about it and the greatest of efforts has not succeeded in persuading public opinion that there should be some other way of dealing with criminals of that kind than by death sentence; it may be by incapacitation; it may be by segregation from ordinary society, so that they may no longer indulge in their anti-social acts; it may be anything, but it should not be met by capital sentence. That is the view which has been taken by most countries. Now, I am not here, Sir, to ventilate those views, but what I am referring to is the tardy recognition by Great Britain that many of the offences should be excluded from the list of capital offences. This tardiness has been most apparent from the list of Henary VIII, when there were 263 cases of crime to be met by capital sentence. When we come to 1797, even then there were 160 offences which used to be capitally punished. Then in 1833, there was a more for removing certain offences from the list of Capital offences. Take for instance, shop-lifting, petty cases of theft, etc. The offenders used to be sentenced to death-there is a recorded case of a boy sixteen who had not been able to resist the temptation to lift a little doll from the shop-window and he was hanged for it. British opinion was so obdurate that it refused to recognise that in these cases there was any other way possible-either punishment or correction or segregation. In 1833, when this question again arose of removing certain of these offences from the capital sentence list, Lord Lordships", said he, "will pause before giving assent to a Bill of this character which will endanger private property for all time". I am only citing these instances to show why up to this time the Privy Council has been so chary in admitting criminal appeals against decisions by the High Court. Only in a very few cases where 'natural justice' was being violated-an expression which it is very difficult to define or explain, the Privy Council was prepared to entertain appeals. I submit that under the new set-up in India, surely, we should not follow that
as model precedent. On the contrary, we should give all consideration to the appeal which has been made today, to include cases of death sentences in the list of those cases which should go up in appeal before the Supreme Court. I do not suggest here and now in what manner it should be provided. Before you put it in the Constitution, it will call for careful thought and deliberation and it would rest with Parliament, perhaps be made in the Constitution which would lead the Parliament to attach to it the importance that it deserves.
A point has been raised about funds. A number of judges would be needed in a vast country like India, if such appeals are allowed.......
Pandit Lakshmi Kanta Maitra (West Bengal: General): We have absolutely no statistics of such cases from the different High Courts. We cannot say whether the number will be enormously large.
Mr. Frank Anthony : A small fraction of your civil litigation.
Pandit Lakshmi Kanta Maitra : We have not got any statistics of murder cases that come before the High Courts.
Dr. P. K. Sen : That is a very easy matter; it could be a ascertained with very little difficulty. What I submit is this. The sanctity of human life is being recognised more and more in recent times. There is no question that in the past there was no such sanctity attached to human life. Really the world was in a state of war and during war who cares whether lives are lost or not? But, now, there is no question whatever that in the West as well as in the East there is a great deal of sanctity attached to each individual human life. Are we not to recognise that in the new Constitution of India? Indeed, we have recognised that in the chapter on Fundamental Rights in several aspects. But, here, when it comes to a question of an appeal to the Supreme Court against death sentences, we say, "No money, we cannot afford to have so many judges"! Are we to be guided by these utilitarian considerations? Are we not to be guided by the extreme moral necessity of the case? Having been impressed with that moral necessity of the case? Having been impressed with that moral necessity, we have got to find out ways and means in order that moral necessity may be met.
I have already submitted, Sir, that I am not moving any amendment or supporting any amendment. But, in the general discussion of this matter, I am expressing my individual views and I believe in those views intensely, with all the conviction that I can command. Therefore, I have no hesitation whatsoever in asking this House to lend its serious consideration to this matter, and not to shove it aside as a matter which is of no consequence whatsoever. I am not at all broaching the question now as to whether death sentence is right or wrong. That question requires careful reflection and deliberation. We cannot possibly go into that matter now, at any rate. But I do submit that we ought to provide in a handsome manner in the Constitution itself for a right of appeal to the Supreme Court in all cases of death sentence.
I thank you, Sir, for the opportunity you have given me to express my views.
Dr. P. S. Deshmukh : Sir, I had no intention of taking part in this debate. But, there is one aspect of this question which seems not to have been emphasised sufficiently and that is my excuse for intervening in this debate.
The point of view propounded by my honourable Friend Pandit Thakur Das Bhargava has been very ably supported by my honourable Friend Mr. Anthony as well as by Dr. P. K. Sen. I lend that proposition my wholehearted support not only from the joint of view of important criminal cases, but also from the point of view of personal liberty in India. There is of course a provision....
Shri B. Das : It is also a source of gain to the lawyer profession.
Dr. P. S. Deshmukh : If my honourable Friend feels concerned merely because of the gains to the lawyer's profession, and if that is his only grievance, it may be laid down that in certain categories of cases, lawyers shall not be permitted to appear. If he thinks that we are
interesting ourselves simply for that reason and possibility of increased income to lawyers is the only reason why we want to support this, I am prepared for my part to say that in some of these cases, lawyers may not be permitted to appear, as in the case of the Gram Panchyat courts, where lawyers are prohibited from appearing .
We have in India at the present time the spectacle of personal liberties being very largely encroached upon in various places. If we take for instance the way in which provincial Governments are governing, the number of places where section 144 Cr. P. C. is promulgated, the length of time for which it is in existence, we shall be against; if we were to compare these figures with any other period even in the British regime the result would be staggering. So far at least as the Bombay province is concerned, I have received many complaints where the Bombay Government have taken to wholesale externment of persons from one district to another. This is a very good way of avoiding or stopping a person from applying under the habeas corpus. It is not thus inconceivable that even apart from any encroachment on the constitutional provisions, there can be an encroachment on the civil liberties of the people in cases which cannot be covered by the Fundamental Rights or where the assistance of the Fundamental Rights could not be invoked. The ingenuity of the law Minister of the future Indian States being unlimited, I feel that there is every necessity to protect the liberties of the people by providing for reference to the Supreme Court in cases other than those involving interpretation of the Constitution or a violation of the Fundamental Rights. Even from this point of view, therefore, the suggestion that there should be equal facility of approach to the Supreme Court in criminal cases as we have provided for in civil cases should also be considered. I hope this point of view will be appreciated and adequate provision made.
Pandit Lakshmi Kanta Maitra : Mr. President, Sir, this part of the Constitution raises certain very important issues which the House would do well very carefully to consider.
Article 110 and 111 are there and in them we have provided for appeals in civil matters. The question is, what are we going to do with regard to criminal matters. As a member of the legal profession, I think I would be failing in my duty if I were not to tell the House that there is a considerable volume of opinion in the profession itself that whereas in civil matters, we have given the benefit of appeal as of right, in criminal matters, the accused has no real right of appeal as such. The question is whether or not in the body of the Constitution itself we should provide for it. It has been suggested in an amendment to add article 112-B, that Parliament should be invested with power to legislate in this matter,-to confer on the Supreme Court power to entertain and hear appeals from any judgment or sentence of a High Court in the territory of India in the exercise of its criminal jurisdiction subject to such conditions and limitations as may be specified in such law. I maintain. Sir, that this article really raises a first-class issue whether or not we are going to place human life much below the value of property. If for property you would give a constitutional right of appeal, would you deny that in cases where death sentence is imposed? Such cases arise in one of two ways; either the Judge, agreeing with the Jury or Assessors whatever it may be, passes a death sentence; or a man has been acquitted by the Sessions Court, but an appeal is taken out by the Government against the order of acquittal and eventually the High Court reverses the judgment of the lower court and sentences him to capital punishment.
When the letter contingency arises-this conviction after acquittal, where is the forum where he can find redress against the judgment? There is no provision here. Perhaps that can be done under exceptional circumstances under special leave but there is no right as such. Perhaps it would be argued that if
the volume of opinion in the country is strong, Parliament will take notice of that and will make the necessary law. I will join straight issue with those who hold that view, for what is going to happen in the interval? The Parliament may not be taking any action in this respect in the next five or six or even ten years. We do not know the future composition of the Parliament. Hence we want that this right should be embodied in the body of the Constitution itself. I would therefore suggest that article 112-B should be held over for the present. We should make another effort to get round our friends to the view that sanctity of human lives should be recognized. It has been argued and it will be argued always from the executive point of view that if capital sentences were allowed to be appealed against as a matter of course or as a matter of right, then what would happen is that we will have to employ a large number of judges for disposing of cases of Capital sentences. I do not know the real position-I do not know and I have no statistics before me, neither has the Drafting Committee any with them to show province by province the number of murder cases culminating in death sentences which have had to be disposed of by the High Courts. No figure is there. We have only been given a vague indefinite idea that in all the High Courts of India so many number of cases would come and that a large number of judges would have to be appointed. It that is so,-I would assume for the moment that argument is correct that there would be larger volume of work, -I would say that would be justified in view of the dangers involved in it. Sir, we have been nurtured in the British Criminal Law of Jurisprudence. We have been reared up in its spirit, which had always taught us that a dozen scoundrels may go scot-free but one innocent man must not be sacrificed.
Shri Mahavir Tyagi (United Provinces: General) : Sir, 'Scoundrel is unparliamentary.
Pandit Lakshmi Kanta Maitra : My Friend must know that these words by themselves are not unparliamentary but when they are used in relation to a Member, they are unparliamentary. The whole conception of the law of benefit of doubt is based on that. When the circumstances are evenly balanced, and the case for and against the accused is evenly balanced, then we give him the benefit of doubt. When the scales of justice hang anything like even, they should be titled in favour of accused; the Judge should throw a few grains of mercy. That has been the cardinal principle of Criminal Jurisprudence which has held the field for one hundred years in the country. Who knows how many judicial murders we have not been committing by not giving the accused the final right of appeal on judgments which condemned them to death? Is this such a matter which should be lightly disposed of, simply because it might necessitate a few more Judges? We have provided for all manners of things in this Constitution but on this vital matter should we shirk our responsibility? Are the Constitution-makers going to shirk their responsibility, scared away by the prospect of having to employ more Judges? I do not think that is a consideration which should weight with them. Let me respectfully submit to them and I would respectfully suggest to my honourable Friend Dr. Ambedkar to hold his hands for a day or two more. Let us again meet and let us finally see if we can get something done for those classes of people who will be condemned to death and who will go practically at the final stage unheard. This is a very important matter; and personally speaking, I am definitely of the opinion that the right of appeal should be embodied in the body of the Constitution itself and not left to Parliament. With this point of view I agree entirely because that has been the view of the vast body of men in the legal profession. I have not known yet one single criminal lawyer of repute who does not hold the view that in this respect State legislation has been defective inasmuch as the State attaches more importance to property than to human life. I do
not think this is a kind of argument which can be lightly brushed aside. I appeal to the House to consider this aspect.
Shri K. M. Munshi (Bombay: General): Mr. President, Sir, my honourable friend Mr. Anthony told the House that this section was moved in the interest of those who have been practising on the civil side. I cannot be guilty of being is interested because both criminal and civil litigants have treated me with complete impartiality. We have to consider this question from not only abstract theoretical principles but from the practical point of view. Now, if the House is pleased to turn to article 112 whereby appeals can be entertained by the Supreme Court by special leave, the House will see that the present jurisdiction of the Privy Council, to intervene where there is miscarriage of justice in criminal matters, has been retained to the fullest extent. So far as that approach is concerned, it is there.
The next question is whether there should be criminal appeals and if so, under what conditions. For that purpose there is an amendment of the Drafting Committee which is going to be moved by my Friend Dr. Ambedkar- Amendment No. 154-New Section 112-B. It runs thus-
"Parliament may by law confer on the Supreme Court power to entertain and hear appeals from any judgment or sentence of a High Court in the territory of India in the exercise of its criminal jurisdiction subject to such conditions and limitations as may be specified in such law.
A further amendment is also going to be moved to this clause saying that there can be a criminal appeal even from final orders. So the scope of this amendment is going to be widened. The question therefore is whether we should put a provision of this kind in the Constitution or we should leave it to Parliament to enact a law which would consider the whole thing from all points of view. Conceding a right of criminal appeal to the Supreme Court would mean not less than one hundred judges of the Supreme Court. Even if it is a question of death sentences, it would require a very large number.
Pandit Lakshmi Kanta Maitra : Have you statistics?
Shri K. M. Munshi : Yes, we have. At least in one province it could not be less than 100 or 150 and we will have something like fifteen provinces in the future. It must mean that in cases of death sentences there would not be less than a thousand appeals per year. The further question is whether the appeals are to be first appeals or on questions of law, whether they are from death sentence or from sentence of any particular rigour. The other question has also to be considered whether there should be appeals in cases where conviction has been one secured in the High Court in appeals by the Government from acquittal. These cases have to be considered in their fulness. Not only that, we have also to consider the conditions under which such appeals should be allowed. All these require a number of well-considered provisions of law which can only be enacted by Parliament. No member so far as I could see is opposed to criminal appeals in appropriate cases. What is necessary is that the appeal should be entertained under certain restrictions and conditions, and it would be better to lay them down by provisions of an Act than by the Constitution.
I may point out one defect. It is only in cases of miscarriage of justice, on matters relating to the nature of evidence or procedure that the Privy Council gives special leave. Article 112 embodies this jurisdiction. On question of law in criminal matters however, there is no right of appeal. But the matter is sure to be considered by Parliament. If an appeal lie in civil matters from a substantial question of law, or where the case is considered a fit one for appeal, why these considerations, I think, should be left to Parliament to consider, rather than to impose a liability on the Supreme Court to hear all criminal appeals irrespective of limitations or restrictions.
I further submit that this matter does not fall within article 110 or 111, and the discussion at this stage is
premature. The proper time is when amendment to 112-B is considered. Article 110 relates purely to constitutional matters, and article 111 to civil matters. when we come to 112 then the question may be considered whether it is to be modified in some manner or whether it should go through as has been put forward by the Drafting Committee. I therefore, submit that this matter should not be debated in a hurry. That is my submission.
Shri Jaspat Roy Kapoor: Mr. President, Sir, I want to associate myself with what has been said by many a previous speaker, with regard to conferring of the right of hearing criminal appeals on the Supreme Court. A very strong, convincing and un-rebuttable case has been made out by so many honourable Members of this House. It should convince everybody, excepting those who are bent upon not being convinced. I submit, Sir, that articles 110, 111 and 112 must, therefore, be amended suitably so as to cover the point of view urged so very ably by so many eminent lawyers who are Members of this House.
The one main ground which has been urged by the opponents of this view is that it will create a very large amount of work for the Supreme Court and a very large number of judges will be required to deal with those cases. I do not know whether we have in our possession any definite or even any approximate figures on the basis of which it could be said that the volume of work would increase to such an extent, even if the right of appeal is restricted to cases involving sentences of death. Sir, even if there be force in this contention of the opponents of this view that the volume of work would be very large, I submit that let them meet it, meet this point of view in a restricted manner at least. I would submit that let this right of appeal be limited only to cases which involve sentences of death. It may be said that even then, the number of cases would be very large. One very good suggestion has been thrown out by my honourable Friend Mr. Anthony that if you are afraid of the volume of work, that it would be too large, then some device should be adopted to reduce the number of civil appeals; and there seems to be no reason why, if we cannot afford too many judges, why we should not further limit the value of the civil cases which come up for appeal. We may increase it to Rs. 50,000 or a lakh of rupees. We hear so much about inflation of currency in these days and the value of money having gone down; I see no reason why the value of appealable civil case should not be increased to at least fifty thousand rupees or a lakh of rupees. Certainly the liberty of a person, the life of a person is much more valuable than Rs. 20,000 or Rs. 50,000 or even a lakh of rupees. In fact, the life of a person cannot be estimated in terms of money at all.
Apart from this, there is one very fundamental question involved here, and it is this. Should or should not a person convicted of an offence have at least one single right of appeal? I speak not of two or three, as we are prepared to give in the case of civil cases. The question is, should or should not a convicted person have at least one single right of appeal. I submit, Sir, this is a fundamental right for which provision must be made in the Constitution and the matter should not be left in the hands of Parliament. We know there are cases in which the accused secures an acquittal from the Subordinate Court, and some of the these cases go up in appeal before, the High Court-the local Government putting in an appeal against either the order of acquittal from the Subordinate Court, and some of these cases go up in appeal before the High Court-the local Government putting in an appeal against either the order of acquittal or against an order according to which a light punishment has been inflicted upon the accused-the question to be considered is, when such cases go up in appeal before the High Court and the High Court for the first time convicts an acquitted person and sets aside the order of acquittal of the lower court, and convicts the person to a sentence of
death, the question is, should or should not such a person who has been convicted and sentenced to death for the first time, should he or should not he have the right of appeal? Must he not be heard even once against the order of the High Court sentencing him to death? It is a very fundamental question, and my submission is that even if you cannot accommodate our point of view in entirely, at least you must make some provision to the effect that in cases where a sentence of death has been inflicted for the first time by the High Court, on appeal against the order of acquittal of a subordinate court, in such cases at least an appeal shall lie to the Supreme Court. This is my submission. I think at least this much must be provided for in the Constitution.
Sir, I have nothing more to add, because so many eminent lawyers who are well competent to speak on the subject, so many lawyers who have had personal experience of conducting criminal cases extending over a period of thirty to forty years have almost unanimously urged that such a provision must be made in the Constitution itself. When so many experts are of this view. I see no reason why my honourable Friend Dr. Ambedkar should be so adamant on this question and not be prepared to yield even to this limited extent. Sir, he has always been very reasonable and has been trying to accommodate important points of view, but I am surprised to find that on this occasion, he is so adamant. I hope he does not want us to realise that he can be an exception to his own self on some occasions. I hope, Sir, that he will be prepared to consider this point of view, and I would suggest that he might hold a sort of conference with other eminent lawyers who are Members of this House and try to evolve a formula which would be acceptable to all.
Dr. Bakshi Tek Chand : After this lengthy debate. I have only a few words to say for the consideration of the House. There are three different aspects of the question which, if I may say, with respect, should have been kept distinct and considered separately and at the proper time.
Article 110, to which Mr. Naziruddin Ahmad has moved his amendment, is not concerned with several matters, which have been discussed by the previous speakers. That article seeks to replace section 205 of the present Government of India Act, which deals with appeals in cases in which questions of the interpretation of the Constitution are involved. In such a case, an unrestricted right of appeal is given, whether the case is of civil or criminal nature, or arises in other proceedings and regardless of the value of the subject-matter. This is a very valuable right which, I submit, must be preserved in the Constitution, subject, of course, to the conditions that the High Court certifies that the question of law involved is a substantial one. I would, therefore, ask the House to pass article 110, with the verbal alterations which have been suggested by Dr. Ambedkar. I do not think there can be any two opinions on that point. If honourable Members want to consider whether in ordinary civil cases the right of appeal to the Supreme Court should be cut down, or in ordinary criminal cases (where no appeal lies at present except by special leave), appeals should in certain cases, be allowed as of right, the proper time for discussion on these matters will be allowed as of right, the proper time for discussion on these matters will be when the House will be considering articles 111 and the new article 112-B. It is curious that so far as article 110 is concerned, no criticism has been offered in any of the speeches that have been delivered. Without being disrespectful, I may say, that Pandit Thakur Dass Bhargava and Mr. Naziruddin Ahmad want to bring in questions relating to articles 111 and 112-B, as if through a back-door. I, therefore, ask the consideration of article 110 be not confused by mixing it up with the other questions. I wish to repeat that article 110 confers a very valuable right as the experience of the last twelve years has shown. Honourable
aware of the cases involving the validity of Ordinances promulgated by the Governor-General or Governors of provinces or of laws passed by the Central Government or the provincial Governments since 1937, when the Government of India Act, 1935, came into force. In each case the matter was taken in appeal to the Federal Court which gave its decision on the questions whether such legislation was or was not ultra vires and set at rest very important and substantial questions. These questions arose in civil suits of which the value was much below Rs. 1,000. Similarly, in some criminal matters, the sentences were for imprisonment for small periods. But the constitutional questions involved were of very great importance. I submit, therefore, that this unrestricted right of appeal in cases involving substantial constitutional questions which is now available, should be kept intact in the future Constitution of free India. This is one aspect of the matter, which I will ask the House to keep in view and so far as article 110 is concerned, I would say that Mr. Ahmad's amendment be rejected and the article passed as it is.
Now we come to the second aspect, which relates to ordinary civil cases, for which provision is made in article 111. Mr. Anthony and some other honourable Members have observed that the framers of this Constitution were civil lawyers and that they have, in the interest of civil litigation, enlarged or maintained the jurisdiction of the Supreme Court with regard to civil matters. Fortunately for me, I am not one of the framers of this Constitution and that charge cannot be leveled at me. I may, however, draw the attention of Mr. Anthony and some other speakers, that in ordinary civil matters, the right of appeal to the Supreme Court has been reduced very considerably. The valuation limit under the present Civil Procedure Code is Rs. 10,000, but in the Draft Constitution it has been raised to Rs. 20,000. If you study the figures, you will find that in three-fourths of the cases, appeals in which go to the Privy Council, the value is between Rs. 10,000 and Rs. 20,000 and it is only in 25 per cent cases, the value is between Rs. 10,000 and Rs. 20,000 and it is only in 25 per cent cases, the value is over Rs. 20,000. Therefore, article 111, as drafted has reduced appeals in civil cases to the Supreme Court by about 75 per cent. The charge which has been brought against Dr. Ambedkar and his colleagues is not at all correct. On the other hand judging from the amendments of which notice has been given and which have not yet been moved, many honourable Members seem to feel that the limit of Rs. 10,000 should not be raised to Rs. 20,000. Some others have given notice that the limit be fixed at Rs. 15,000. It cannot be said that the Constitution is conceived with a view to increase civil litigation or even to maintain the present volume of civil cases that go to the Privy Council. I submit, therefore, that Mr. Anthony's observation, besides being wholly irrelevant to article 110, which alone is at present before the House, is, if I may say so without any disrespect, completely misconceived.
Article 111 is except for this change in valuation, a mere repetition of section 110 and section 109 of the Civil Procedure Code which have stood on the Statute Book since at least 1861. Some of their provisions you will find even in the Charter (or Rules framed thereunder) of the Supreme Court of Calcutta, which was promulgated by the King in 1773. You will find similar provisions in Charters of the Supreme Courts of Madras and Bombay, which were promulgated in the early part of the 19th Century. But with regard to all the High Courts, when the High Court Act was passed in 1861 and the Letters Patent of the High Courts of Calcutta, Madras, Bombay and Allahabad were issued, you will find similar provisions and they have been incorporated in the Civil Procedure Code from that year up to now. Thus, so far as the type of cases in which the right of appeal in civil cases is concerned, article 111 keeps intact all those rights. But it
raises the value and therefore, it indirectly cuts down the volume of civil litigation by 60, 70 or 75 per cent. The percentage was 75 seven or eight years ago when I studied the figures and I do not think the difference is very much today. In fact, in some cases in smaller provinces like East Punjab, Orissa and the Central Provinces, there will be very few civil cases now coming up to the Supreme Court. In rich provinces like Bombay and West Bengal and Madras there may be more. In the U.P., which supplied a very large volume of civil litigation before the Privy Council, and also in Bihar, as there were big taluqdaris or zamindaris-the value of many cases was over Rs. 20,000. But now that taluqdaris and zamindaris will now be extinct, the number of cases from these provinces will also decrease. Therefore, there is no danger of civil litigation increasing to a large extent.
Now with regard to criminal matters. I will just place before you the present position in regard to appeals to the Privy Council in criminal matters. Under the law, as it stands today, there is no appeal to the Privy Council as of right in any case, whether the sentence is that of death or transportation for life or for a short period, or whether the question of law involved is very substantial. No High Courts has the power to certify any case as a fit one for appeal to the Privy Council.
It is only by special leave of the Privy Council that an appeal in a criminal case can lie. Such leave is not usually granted, even if there is a substantial question of law or there has been miscarriage of justice. But if there is a case in which the principles of natural justice have been violated, then the Privy Council might interfere. What those principles of natural justice are, has not been defined anywhere; they have not been explained with precision even in judgments of the Privy Council. If you examine the various cases which have been decided on appeal by special leave, you will not find-(I am speaking with very great respect)-any consistency; you cannot extract any rule as to when the Privy Council will grant leave and when it will not. I do not wish to take the time of the House of referring to cases in which a particular question was raised but the Privy Council refused leave; but several years later when the identical question was raised again, leave was granted on the ground that principles of natural justice had been violated. The whole thing is very indefinite. I do not know if the Supreme Court will follow the practice of the Privy Council; or lay down a different convention in granting special leave under article 112.
Pandit Thakur Das Bhargava : Does this article 112 of the Constitution give to the Supreme Court the same opportunity of doing justice, according to the principles of natural justice, as the Privy Council had, or are the right taken away.
Dr. Bakshi Tek Chand : 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 matte, etc., etc."
This leaves the matter to the discretion of the Supreme Court and we cannot say what tradition the Supreme Court will build up in this matter. If they are going to follow the practice of the Privy Council- which they generally do at present in many civil matters-then the same old case (Dillet) will be followed, leaving the whole thing undefined. Ninety-nine per cent of petitions for special appeals will be rejected, resulting in so much waste of time and waste of money.
Now, Sir, I will make one or two observations with regard to Mr. Naziruddin Ahmad's amendment. If this amendment is accepted, the result will be that so far as civil matters are concerned, it will come into conflict with article 111. In every civil case, regardless of value, a litigant can go to the Supreme Court, even if he cannot get a certificate from the High Court. I do not think, Mr. Naziruddin Ahmad wants it, or any of the other honourable Members, who have supported his amendment, wants it.
In view of the various
amendments which have been moved, the Drafting Committee has thought it advisable that Dr. Ambedkar should move an amendment that Parliament may, by law, confer on the Supreme Court power to entertain and hear appeals from any judgment, or sentence of the High Court in the territory of India in the exercise of its criminal jurisdiction, subject to such conditions and limitations as may be specified in such law. I do not think that this will be sufficient. I think some provisions should be made in the Constitution, giving a limited right of appeal in certain specified circumstances. If you leave the whole matter to Parliament we cannot say when such laws will be passed, and in what form they will be. The result will be that for three years-or may be more-no provision for appeal to the Supreme Court in such cases will exist at all. That is an aspect of the matter which has caused much concern among honourable Members and some of them have suggested that provision for appeal in certain class of criminal cases, should be made in the Constitution itself. I submit that the proper place to discuss this matter is not when article 110 is being considered, but it will be appropriate when article 112-B is moved.
There is a great deal in what many honourable Members have said in regard to cases in which the High Court have reversed orders of acquittal and condemned accused persons to death. There are two other points. One is whether there should be an unrestricted right of appeal in every case when the accused has been convicted of murder, whether the sentence is death or transportation for life as Pandit Thakur Dass Bhargava and some other honourable Members want, or will the right of appeal in every case when the accused has been convicted of murder, whether the sentence is death or transportation for life as Pandit Thakur Dass Bhargava and some other honourable Members want, or will the right of appeal be limited to cases when a sentence of death is passed or which involves a substantial question of law. Secondly, there might be other cases in which the sentence is a nominal one, but there is a question of law of very great importance and universal application. Again, there may be a third class of cases in which there is difference of opinion in the High Court as to the interpretation of certain provisions of the law e.g., some sections of the Evidence Act or the Criminal Procedure Code. Take, for instance, section 27 of the Evidence Act on the interpretation of which Full Benches of various High Courts have given conflicting decisions. Though the Evidence Act has been in force since 1872, for more than 75 years the matter is unsettled. It is in the public interest that such points should be finally settled by the Supreme Court. Article 112 will not cover such a case. At present, the Privy Council considers that where this does not involve violation of principles of natural justice, they will not grant special leave. There are obvious reasons, that in such cases, an appeal should be allowed, if the High Court certifies that it is a fit cases, an appeal should be allowed, if the High Court certifies that it is a fit case for appeal. I do not think there is difference of opinion as to the desirability of allowing appeal in such cases. The only question is, whether this should be done in the Constitution or left for legislation by Parliament. The appropriate time to discuss this would be when article 112-B is being considered and, as that is not likely today, my suggestion is that the Drafting Committee may consider the whole matter again and bring it up later.
Article 110 does not deal with this matter and I submit that that article should be passed with the verbal amendment moved by Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar: Sir, I cannot help saying that the debate has really gone off the track and the Members have really wandered far away from the immediate point raised by my Friend Mr. Naziruddin Ahmad, in his amendments Nos. 1904 and 1907. All that is before us is amendment
No. 1904. According to that
amendment what my Friend Mr. Naziruddin Ahmad wants to do is to suggest that the last few words of sub-clause (1) of article 110, namely the words 'as to the interpretation of this Constitution' should be deleted. I am sorry I was not able to hear exactly the grounds which he urged for the deletion of the phrase 'as to the interpretation of this Constitution'. Although I tried hard to catch his very words, all that I could hear him say as the reason for moving amendment No. 1904 was that he felt that those words were words of limitation, and that if those words remained there would be no provision for an appeal to the Supreme Court in cases where a question of constitutional law did not arise.
Mr. Naziruddin Ahmad : I believe I am right.
The Honourable Dr. B. R. Ambedkar: No question of certificate arises.
Mr. Naziruddin Ahmad : You wanted to delete that yesterday.
The Honourable Dr. B. R. Ambedkar: I think my honourable Friend Mr. Naziruddin Ahmad has probably not grasped the scheme of the articles which deal with the Supreme Court.
Mr. Naziruddin Ahmad : That is your stock argument.
The Honourable Dr. B. R. Ambedkar: We have in this Draft Constitution made separate provision for appeal in cases where question of Constitutional law arise, and cases where no such question arises. Appeals where constitutional points arise are provided for in article 110. Questions where constitutional law are not involved are provided for in article 111. The reason why this separation is made between the two sorts of appeals is also probably not realised by my Friend Mr. Naziruddin Ahmad. I should therefore like to make that point clear. There is going to come an amendment to article 121 which deals with the rules to be made by the Supreme Court. I have tabled an amendment to clause (2) of article 121 which says that wherever an appeal comes before the Supreme Court and it involves questions of constitutional law, the minimum number of judges, which would sit to hear such a case shall be five, while in other cases of appeals where no question of Constitutional law arises, we have left the matter to the Supreme Court to constitute the Bench and define the number of judges who would be required to sit on it by rules made thereunder. Now, that is an important distinction, namely, that a Constitutional matter coming before the Supreme Court will be decided by a number of judges not less than five, while other cases of appeals may be decided by such number of judges as may be prescribed by rule. My friend therefore will understand that the existence of the words 'as to the interpretation of this Constitution' does not in anyway debar appeals other than those in which constitutional law is involved, and he will also understand why we propose to put these two types of appeals in two separate articles, the number of judges being different in the two cases.
Now I come to the other point which has been debated at great length, namely, whether the Supreme Court should have criminal jurisdiction or not. As I said, so far as article 110 is concerned and the amendment moved by my Friend Mr. Naziruddin Ahmad is concerned, all this debate is absolutely irrelevant and beside the point and really ought not to influence our decision so far as article 110 is concerned. But inasmuch as a great deal of debate has taken place, I would like to say a few words. Members will find that there is provision in article 110 for a criminal matter coming before the Supreme Court if that matter involves a question of constitutional law. Therefore that is one of the ways by which criminal matters may come up and the criminal matters that may come up under article 110 may be very small matters.
Again, there is article 112 where the jurisdiction of the Privy Council has been vested in the Supreme Court. For the moment I would like to draw the attention of honourable Members to the words ' decree or final order in any case or matter whether civil or criminal' so that the Supreme Court may, by special leave, draw to itself even a criminal' so that the
Supreme Court may, by special leave, draw to itself even a criminal matter under the provisions of article 112. I have noticed that there is considerable feeling among criminal lawyers that there ought to be a provision......
Pandit Lakshmi Kanta Maitra : Practising criminal law.
The Honourable Dr. B. R. Ambedkar: I am sorry, 'practising criminal law', that just as article 111 confers upon the Supreme Court powers of hearing civil appeals, civil only, there ought to be a conferment of power upon the Supreme Court to hear criminal appeals, if not all appeals, at least appeals of a limited character such as involving death sentences. Now, I do not want to say that there is no force in the argument that has been used in support of this plea that the Supreme Court should have criminal jurisdiction but the question is how is it to be done? Should we do it by a specific clause in the Constitution itself that in the following matter there shall be a right to appeal to the Supreme Court, or should we permit Parliament to confer criminal jurisdiction itself that in the following matter there shall be a right to appeal to the Supreme Court, or should we permit Parliament to confer criminal jurisdiction of an appellate sort upon the Supreme Court? I am of the opinion for the moment-I do not wish to dogmatise nor do I wish to say anything positive at this stage; I have an open mind although, I may say so, it is not an empty mind-that it might be enough at this stage to confer upon Parliament the power to vest the Supreme Court with jurisdiction in matters of criminal appeals. Parliament may then, after due consideration, after investigation, after finding out how much work there will be for the Supreme Court if it is conferred jurisdiction in criminal matters and how much work it will be possible for the Supreme Court to handle, having regard to the number of judges that the finances of this country could provide to cope with that work- I think it would be much better to leave it to Parliament because this is a matter which would certainly require some kind of statistical investigation. My other view is that rather than have a provision for conferring appellate power upon the Supreme Court to whom appeals in cases of death sentence can be made, I would much rather than have a provision for conferring appellate power upon the Supreme Court to whom appeals in cases of death sentence can be made, I would much rather support the abolition of the death sentence itself. (Hear, hear.) That, I think, is the proper course to follow, so that it will end this controversy. After all, this country by and large believe in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.
Pandit Lakshmi Kanta Maitra : All the criminal courts also.
The Honourable Dr. B. R. Ambedkar: I think we ought to confine ourselves to the amendment moved to article 110 and the amendments moved by my Friend, Mr. Naziruddin Ahmad.
Mr. President: I shall now put the amendments to the vote.
The question is:
"That in clause (1) of article 110, for the words 'a State' the words 'the territory of India' be substituted.
The amendment was adopted.
Mr. President: The question is:
"That in clause (1) of article 110, the words 'as to the interpretation of this Constitution' be omitted."
The amendment was negatived.
Mr. President: The question is:
"That in clause (2) of article 110, the words 'as to the interpretation of this Constitution' be omitted."
The amendment was negatived.
Mr. President: The question is:
"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 amendment was adopted.
Mr. President: The question is:
"That article 110, as amended, stand part of the Constitution."
The motion was adopted.
Article 110, as amended, was added to the Constitution.
Mr. President: The first amendment is No. 1911 by Shrimati Durgabai.
Shrimati G. Durgabai (Madras: General): As the point involved has been covered by Dr. Ambedkar, I do not wish to move it.
Shri Raj Bahadur : Mr. President, Sir, I beg to move:
"That in clause (1) of article 111 the words 'except the States for the time being specified in Part III of the First Schedule' be deleted."
While moving this amendment, I may submit, Sir, That the articles relating to the powers and jurisdiction of the Supreme Court were drafted at a time when the process of integration and democratisation of the Indian States had only commenced and the final shape of things as they have finally emerged was not before the country and before the Drafting Committee. As such we find that the Supreme Court which is the ultimate court of appeal in the land was not vested with jurisdiction in certain cases. Article 109 vests the Supreme Court with jurisdiction in certain matters which relate to disputes between the States inter se. But this jurisdiction is limited and restricted to some extent in cases relating to the States mentioned in Part III of the First Schedule. In article 111 a distinction and discrimination has been made between the case of judgments, decrees or final orders in civil proceedings arising from the High Courts in Indian States. Similarly a discrimination has again been made against the people living in the Indian States under article 112. It is obvious that the Supreme Court being the final court of appeal should have equal jurisdiction or authority over the entire territory of India. It is only proper that the Indian States where the system of judiciary has not been so well developed and well organised as obtains in the Indian provinces, should be given an opportunity for reorganisation and development of their judiciary under the supervision of the Supreme Court. It is very well known that the administration of justice that the Indian States people have so far been receiving from their judiciaries has yet to come to the level and standard of that available to the people in the Indian provinces. Similarly it is also well-known that we the people of the Indian States have been eagerly looking forward to the day when the Federal Court or the Supreme Court will be empowered to entertain and hear appeals from cases arising from the High Courts situated in the Indian States. When this is the general desire of the people of the Indian States, it is only proper that in articles 111, 112 or for the matter of that in 109, there should be no discrimination against the Indian States. May I submit, Sir, that the inclusion of the words "except the States for the time being specified in Part III of the First Schedule" detracts not only from the jurisdiction and authority of the Supreme Court over the entire territory of India, but also detracts from the fulness of the unity of our country and from the democratic freedom of the Indian States people. To a certain extent it detracts also from the sovereignty of the Sovereign Parliament of the Indian Nation over the Indian States. It appears to me that in case we retain these words in the articles concerned, we shall still be keeping alive a sort of lingering and intolerable vestige of the old order in our Constitution. The House and the Government of India stand committed to the principle of fully democratizing the Indian States. We also stand committed to bring the States on a par with the provinces. As such it is only desirable that all distinctions, discriminations and differences should be obliterated. We want no purple patches on the map of India. We want that the process of the integration and unification of our country should be accomplished at
as early a date as possible. I may submit further that the Indian States people require greater protection for the vindication of their elementary fundamental rights than the people living in other parts of the country. It is well-known that feudalism and other forces which react against the fulness of freedom of the States People are still not fully put down in the Indian States and an outlet or opportunity should be there for the people of the Indian States to approach the Supreme Court, if need be, for the vindication of their rights and liberties. I may further mention that "the States specified in Part III of the First Schedule", if we retain the said words, would be invested with a sort of a better or different status, distinct or contrasted from the status given to the rest of the States in the Indian Union. It would place them on a level different from the Indian provinces. The High Court in the Indian States, and not the Supreme Court of the country, would become the final court of appeal for the people of such States. But this position should not be allowed to continue. I commend, therefore, this amendment for the acceptance of the House, in view of the fact that we have accepted the principle of unity and unification of the country, and hence there should be no distinction or discrimination between one part of the country and the other.
(Amendments Nos. 1913 to 1916 were not moved.)
Dr. Bakshi Tek Chand : Sir, I move:
"That in sub-clause (1) of clause (1) of article 111, after the words: 'not less than twenty-thousand rupees' the words' or such amount as may be fixed by law by Parliament' be inserted."
The object of this amendment is very simple. In the article as drafted the value of the cases covered by article 111 (1) (a) and (b), instead of Rs. 10,000 as it is at present for appeals to the Privy Council, is fixed at Rs. 20,000. If the article is passed as it is, and incorporated in the Constitution, this figure will remain as a rigid limit until the Constitution is amended. Conditions in the country may however change and it may be found that this limit is either too high or that it is too low and that it should be raised or reduced. In that case it will not be possible to make any change unless there is an amendment of the Constitution. That, of course, would be a long and cumbersome process. The limit is being raised, as the value of property has gone up greatly; what was worth Rs. 10,000 twenty years ago is now worth Rs. 20,000. Circumstances may, however, change. The value may go down again due to various causes and the limit may have to be reduced. Or, the value may rise higher still and it may be necessary to raise the limit from Rs. 20,000 to Rs. 30,000, Rs. 40,000 or more. To meet such a situation power should be given to Parliament by law to make the necessary change in the article. The amendment therefore seeks to introduce in the article the words "or such amount as may be fixed by law by Parliament."
The Honourable Dr. B. R. Ambedkar: Sir, I move:
"That with reference to amendments Nos. 1916 to 1919 of the List of Amendments, in sub-clause (a) of clause (1) of article 111, after the words 'twenty thousand rupees', the words 'or such other sum as may be specified in this behalf by 'Parliament by law' be inserted."
(Amendment No,. 1918 was not moved.)
Mr. Naziruddin Ahmad : Mr. President, Sir, I beg to move:
"That in sub-clause (a) of clause (1) of article 111, for the words "twenty thousand', the words 'fifteen thousand' be substituted."
Sir, the present pecuniary limit is rupees ten thousand, but the Draft Constitution prospes rupees twenty thousand. Mine is a via media of rupees fifteen thousand. I want to raise it as the money has become cheap. I submit that the standard of appealability must not be very much. That is a very arbitrary standard of justice and that makes a distinction between the rich and the poor. If you have any distinction at all, I should think that the ordinary valuation should be slightly raised. There is a discretion in the Supreme Court
which may in proper cases grant special leave; but I totally disagree with the amendment moved by Dr. Bakshi Tek Chand and Dr. Ambedkar leaving the matter in the hands of Parliament. I submit that as we are framing a Constitution and we are introducing a large number of small details- I would not say that they are irrelevant matters as Dr. Ambedkar is accustomed to say-a large number of small details, making the Constitution almost into departmental manual. In a vital matter like this which gives or takes away the right of appeal we must not shirk our responsibility and leave it to Parliament. The difficulty would be that valuation would fluctuate from day to day according to the temper of the House and according to the temper of the House and according to the Constitution of the House. We cannot assume that the present House or the present strength of the various parties will remain the same for ever. Therefore, instead of allowing the limit to fluctuate with the temper of the moment, it should far better be fixed in the Constitution. You may make it ten thousand, fifteen thousand or twenty thousand; but it should be something fixed in the Constitution so that it may not be changed very frequently except by an amendment of the Constitution itself. This should be put on a more permanent basis. This is my reason for moving this amendment.
(Amendments Nos. 1920 and 1921 were not moved.)
The Honourable Dr. B. R. Ambedkar: Sir, I beg to move:
"That to clause (1) of article 111 the following proviso be added :-
"Provided that no appeal shall lie to the Supreme Court from the judgment, decree or order of one Judge of a High Court or of one Judge of a Division Court constituted by two or more Judges of a High Court, where such Judges are equally divided in opinion and do not amount in number to a majority of the whole of the Judges of the High Court at the time being.
Mr. President: To this, there is an amendment by Pandit Thakur Dass Bhargava No. 151. Are you moving that?
Pandit Thakur Dass Bhargava : Not moving Sir.
Mr. President: We shall stop there and adjourn to Eight of the clock on Monday.
The Assembly then adjourned till Eight of the Clock on Monday the 6th June 1949.