The Constituent Assembly of India met in the Constituent Hall, New Delhi at Eight of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
DRAFT CONSTITUTION - (Contd.)
Mr. Naziruddin Ahmed (West Bengal : Muslim) : Mr. President, Sir, yesterday, I drew the attention of the House to article 112 which we have already accepted. I submit that the acceptance of that article has involved us into a commitment to a policy.
Article 112 enables the Supreme Court to permit an appeal in a criminal case by special leave. This involves the acceptance of the formula that appeals in criminal cases should also lie on a certificate given by the High Court. The House will be pleased to consider the situation. At present appeals to the Privy Council in criminal matters lie first of all on a certificate given by the High Court concerned. If that is refused, then, the Privy Council may allow an appeal by special leave. Special leave is a residuary provision to guard against the High Court improperly refusing to grant the requisite certificate. I submit that article 112 has committed us to the acceptance of the principle that appeals must lie also on a certificate by the High Court concerned in criminal cases. In fact, it is highly convenient as a preliminary step to allow the High Court to grant or refuse a certificate. The convenience is obvious. The High Court has, where it is asked to give a certificate, already considered the matter more or less fully in an appellate or revisional capacity, since it is against a judgment or order of the High Court that an appeal is sought to the Supreme Court. The High Court is thus already in possession of the facts relating or relevant to an appeal to the Supreme Court. There are many High Courts already in the provinces and there will be many more in the integrated States. There will be more than a dozen High Courts in the territory of India. It would be very convenient for these High Courts to be in a position to grant or refuse the certificate in the first instance. Therefore, this obvious and convenient course should be adopted. In case the certificate is refused, it can be taken for granted in most cases that it has been properly refused. If thereafter any application for special leave is made to the Supreme Court, in nine cases out of ten, that application will be refused because the question of law, or the suitability, otherwise, for purposes of appeal has already been fully considered by the High Court in refusing the certificate. In such a case, it will reduce the number of application tot he Supreme Court for special leave as it has already reduced the number of applications for special leave to the Privy Council. I therefore, submit that the provision for a certificate by the High Court is not only a very logical measure, but at the same time, a convenient one and it will prove in the long run to be economical. It sometimes happens, however, that the High Court refuses to grant the certificate even in a suitable case. In those limited cases, it should be the privilege of the highest Court to grant special leave. The question of possible congestion of work in the Supreme Court has included many honourable Members to oppose the provisions of these amendments. It is said that we do not know how many appeals in criminal cases there would be in the Supreme Court. The fear of creating a serious congestion in that Court and also the fear that we will have to employ more Judges to deal with those cases is behind this opposition. I submit, however, that this fear is unjustified. So far as the question of law is concerned, it is only a 'substantial question of law' which will enable a party successfully to obtain a certificate or special leave. A substantial question of law must be clearly appreciated. In fact in it is not any question of law but a substantial question of law and I submit that a substantial question of law is very restricted in its scope. It is a
very high standard of error or irregularity in law and it is already well established that an error as to the procedural law such as, error in framing a charge or similar other matters prescribed by the Code or Criminal Procedure or other procedural law relating to criminal matters, and a violation of these laws does not as a matter of law create a sufficient grievance in law even in the High Court or other Appellate Courts and will not be ground for the Supreme Court, for under section 537 of Criminal Procedure Code, any error of procedure would not be a material ground for interference in a criminal case unless it has in fact also resulted in prejudice to the party. So a substantial question of law is reduced to a very short compass that if it is an error of procedural law, it must be sufficiently serious in its consequences upon the case which must have caused real and substantial prejudice to the party. Therefore the condition as to a "substantial question of law" will eliminate all question of errors of procedure which do not go to the root of the mater, which really do not affect the merits of the case, and therefore, there is no fear of congestion of cases on this ground. Then there are other procedural errors, namely, in a Session trial there may be misdirections to the Jury. It has also been held that this is not a sufficient ground to interfere unless it has on facts led to failure of justice. Therefore the fear that there would be congestion of cases if we allow substantial question of law to justify appeals to the Supreme Court is unjustified. Then with regard to references by Session Judges under section 307 of the Code of Criminal Procedure against the verdict of a Jury, in the latest Privy Council case of Ram Anugrah Singh, it was held in 1946 that unless the verdict of the Jury is clearly unreasonable so that no reasonable body of men could come to that conclusion, unless this ground is made out, even serious misdirection of even mis-reception of material evidence, contrary to Evidence Act, will not be a sufficient ground even for High Court to interfere, and I submit would also be no ground for interference before the Supreme Court. I therefore submit that the condition of substantial question of law is a sufficient safeguard against frivolous appeals being taken to Supreme Court. It is only when very substantial injustice has resulted from any errors of procedure or any mis-reception even of material evidence there would be an appeal and there would be a certificate or special leave. But any question relating to composition of the crime is really a serious matter. We have recently a case decided by the Privy Council in 1945 saying that under section 34 of the Penal Code which was supposed to be applicable to all cases where several persons acted or purported to have acted with similar intention does not constitute an offence. In fact a clarification of this matter in this case has ruled out a large number of offences centering round section 34 of the Penal Code. Another important principle has been decide by Privy Council in 1947 in Srinivas Mall's case, that criminal intention and knowledge is a necessary condition although it may not be mentioned in the penal law concerned. Unless criminal knowledge or criminal intention, commonly called mens rea is clearly or necessarily rules out by the penal law, it is a necessary ingredient of the offence. It must be proved that the accused had
some criminal knowledge or intention. On these matters the Privy Council has laid stress on the real elements of crime and the materials that go to constitute the crime. This is highly important, and substantial grounds of law will mostly centre round errors as to the elements of a crime or serious errors as to the law of procedure or evidence. I therefore submit that there is no fear of any serious congestion of cases. The Privy Council has always summarily rejected applications for special leave which did not raise very substantial errors or actual prejudice. It is only two or three cases in the year-at any rate not more
than half-a-dozen cases in a year, that they have interfered. I have no doubt that in granting a certificate the High Court will exercise the greatest caution and will confine itself to granting certificate in cases only where the penal laws have been misinterpreted or that there has been any gross violation of the rules of procedure or evidence to the prejudice of a party that a certificate will be given and I have no doubt whatsoever that under article 112 the Supreme Court will also exercise a restraining influence on indiscriminate appeals. Then there is a condition that Advocates appearing in the High Court and also before the Privy Council are required to certify that there are substantial grounds for the appeal and in case any frivolous application is made for a certificate or special leave, that is always a matter for serious comment and that will again act as a restraining influence on frivolous application is made for a certificate or special leave, that is always a matter for serious comment and that will again act as a restraining influences on frivolous application. This wholesome practice will no doubt also be observed in the Supreme Court but these matters must be left to the Supreme Court to deal with. The Federal Court has already shown that they do not like appeals made without sufficient or without at least arguable grounds. Considering the matter from this point of view, the fear of congestion of criminal cases in Supreme Court is to my mind merely conjectural. I do not think more than a few dozens of cases will come to Supreme Court and that should not terrorise us into complete inactivity and taking no decision whatsoever on this matter. Considering the matter from every conceivable point of view, we must allow appeals in serious cases where injustice has as a matter of fact been done by the High Court and by other Courts, and appeals should only be allowed on substantial questions of law which is a very difficult condition-it is not a frivolous appeal that has any chance of success and we must allow appeals to the Supreme Court on substantial grounds of law. I have however in my amendment stressed two other matters which require consideration. I have said that appeals must also lie from the final decision of any tribunal other than High Court from which no appeals for revision lies to High Court. It is open to the Legislature to set up a special tribunal and it is quite competent to so provide that its decision will be inviolate and no appeal will lie to High Court or any other Court. In such cases, appeal should also lie on the certificate of the tribunal on the usual grounds. In such a case the High Court will have no power to grant certificate because we are ensuring a certificate from High Court from its own decision. It is therefore also necessary to provide for appeals from the decisions of tribunals from which no appeal or motion lies to the High Court. In such cases a certificate for appeal from such tribunal would be needed; and the residuary article 112 is already there. So, such tribunals from which no appeal or motion lies to the High Court in criminal cases, may also be authorised. Otherwise there will be a lacuna.
Then there are matters which are neither civil nor criminal. Civil matters are provided for in article 111, and we want to provide for appeals in criminal cases in article 111-A. But there are anomalous cases which neither civil nor criminal, e.g., contempt of court cases, when a party or witness or advocate or any one else brings the Court into contempt or disrepute. In such cases the High Court has summary power to deal with the recalcitrant party by fine or even imprisonment. In such cases there should be an appeal in important cases where a substantial question of law is involved. In two recent contempt of court cases that went up to the Privy Council-one from the colonies and one from the Allahabad High Court-it was found that parties had been wrongly punished on a misconception of law. And Lord Atkins delivering the judgment of the Privy Council pointed out gross
inaccuracies in the conception of contempt of court. Important questions of law and principle arise in these cases and provision should be made for an appeal, provided a substantial question of law is involved or the matter is a fit one for appeal. So these two classes of cases-that is, appeals from tribunals from which no motion or appeal lies to the High Court, and contempt of Court cases-should be included to prevent any lacuna. We are framing the Constitution for a long time and should leave no loopholes which will call for early amendments. In civil cases we have limited the valuation to Rs. 20,000; but in criminal cases we cannot limit the value of a man's life and liberty. We cannot hang or imprison an innocent man without giving him a right of appeal. Even if one innocent man dies or is imprisoned, the sighs of his widow or orphan children will cry for justice. The House, I submit, should rise to the occasion and give justice to a poor man whose life may be considered by cynics to be below Rs. 20,000.
Mr. President : Dr. Ambedkar will now move his amendment.
The Honourable Dr. B. R. Ambedkar : (Bombay :General) : Sir, I move :
"That with reference to amendments Nos. 23 and 24 of List I (Fifth Week) for the new article 111-A, the following be substituted :-
111-A. Appellate jurisdiction of Supreme Court with regard to criminal matters.
The Supreme Court shall have power to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India-
(a) if the High Court has on appeal reversed the order of acquittal of an accused person and sentenced him to death; or
(b) if the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or
(c) if the High Court certifies that the case is a fit one for appeal to the Supreme Court :
Provided that an appeal under sub-clause (c) of this clause shall lie subject to such rules as may from time to time be made by the Supreme Court and to such conditions as the High Court may establish or require.
(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law."
I do not wish to say anything at this stage but I shall reserve my remarks towards the end after hearing the course of debate on my new amendment.
Pandit Thakur Das Bhargava (East Punjab : General) : Mr. President, Sir, the amendment which has been moved by Dr. Ambedkar just now is one which I hope will find acceptance from all Members of this House. This amendment is in effect the same of which I gave notice (No. 17) except in regard to revisional powers of enhancement. In regard to all other matters it is substantially the same and I have no hesitation in congratulating Dr. Ambedkar and those who have brought about this compromise on this issue.
Coming to the article of the question I beg to submit the amendment, though satisfactory from the practical point of view, is certainly neither logical nor theoretically right. In the first instance, if it be accepted as an axiom in criminal jurisprudence that at least one appeal should be provided to every person who has been convinced in a court of law, this amendment fails to achieve the object. Under part (a) of this amendment the only occasion where an appeal is allowed in respect of an order against the order of acquittal is when a person has been sentenced to death. May I humbly ask if, for a person who after he has been acquitted and in the appeal against him has been sentenced to transportation for life, or even to five years or a single day or even fine, is there occasion for appeal for him in the High Court or any other Court? Are we to understand Are we to understand that person who are sentenced to death are the only
persons who are aggrieved and who require the right of appeal? In my humble judgment every person who after acquittal has been sentenced in appeal should possess the inherent right to appeal. I agree that if there are thousands of such appeals our Supreme Court will be flooded with cases and in practice there will be great difficulty. All the same, I must submit to this House that it must take care to see that some provision is made somewhere-either in the High Courts or in the Supreme Court-that every such convicted person has got a chance to appeal.
This new article 111-A here is practically on a par with article 111 on the civil side. I complained last time when I was speaking on article 110 that as a matter of fact the provision of article 111 also are not satisfactory in so far that they proceed on a basis which is not acceptable to me or which should not be acceptable to the House. We passed the Objectives Resolution. We passed the Fundamental Rights in article 8, and under article 15, that there shall be equality before law and equal opportunity for every person. Now, the provisions contained in article 111 and those proposed in article 111-A go against the very grain of our Objectives Resolution as well as the Fundamental Rights, because in the matter of justice, in the matter of securing equality of treatment we cannot differentiate between a person who has been convicted to death and a person who has been fined or given one day's imprisonment-as we cannot distinguish between a person who is rich enough and can afford to have a dispute with regard to Rs. 20,000 and a person who is very poor and has a dispute only for Rs. 200. There is absolutely no difference in principle between the two. I must submit that this is not be right way of looking at things. In so far as equality of treatment and opportunities is concerned, our law must be based upon an ideal in which every person has got an equal right to go before the law and have his case decided. As I submitted, this is not logical and not theoretically right.
The proviso with regard to (c) is a thing which should not have been put in here. In regard to article 111 on the civil side the only requirement is that the High Court has to certify that the case is a fit one for appeal to the Supreme Court. But in regard to the criminal side these restrictions-unnecessary restrictions in my opinion-have been placed in regard to part (c) which say that the Supreme Court shall make certain rules and the High Court shall attach certain conditions. On the civil side there are no such restrictions and it passes my understanding why there should be these restrictions on the criminal side. When the High Court itself certifies that the case is a fit case for appeal, it is an absolute case for appeal. Who are we do say anything further? Can we not trust our own High Court, instead of restricting it by certain rules made by the Supreme Court and certain conditions attached by the High Court itself? It is not a question of giving the right to the private citizen. I can understand the logic of those who say that a private person as such should not be given the right to go to the Supreme Court. I can understand that the High Court, so far as provincial autonomy is concerned, must be the last word in regard to the liberties as well as the properties of a citizen. And if a person wants to go to the Supreme Court, it must be in the fewest of cases. I can understand that ideal. All the same, when in regard to civil appeals we are giving certain rights it is but natural that in regard to criminal side also you must give equal rights, if not more. After all we are not interested in seeing that provision is made for a large number of appeals, but in seeing that justice is done and justice is rightly administered.
I have one word to say and that is in regard to the powers of the Supreme Court. As we have seen, article 109, 110, 111, 111-A and 112 are the five articles under which the machinery is provided by which appeals can go to the Supreme Court. We have seen under article 25 of the
Constitution that every citizen has been guaranteed Fundamental Rights and the Supreme Court has been made the custodian of those rights. But I do not find any provision in our Constitution which lays down in what manner and under what method the Supreme Court shall exercise those powers and secure those rights to the citizens. Much has been said about article 112 and I will not dilate on it because we have already passed it. All the same I must submit one aspect of the case and that too very humbly and in my own way. If the Supreme Court has jurisdiction and if people can go to it and their rights are to be secured through it we have to arm the Supreme Court with full powers. I am not talking of powers to the citizen but of giving powers to the Supreme Court itself so that it may do justice. In article 118 we have stated that the Supreme Court shall be able to pass orders necessary for doing complete justice. But all the same I know that in regard to procedural matters even now the Supreme Court is not really supreme. It is true that the Supreme Court has been given jurisdiction over some cases where the supreme penalty of law is provided. But in many cases the procedure is so defective that a person sentenced to transportation for life e.g., by conviction in High Court when appeal against acquittal has been accepted, has not got any right of appeal.
If you refer to article 15 which we have already passed you will see that so far as the question of procedure is concerned it is still within the purview of the Legislature to make this or that procedure and the Supreme Court has no hand whatsoever in checking that procedure. Unless and until we make it clear that so far as the ultimate destiny of a person is concerned, so far as the ultimate arbitrament of the rights of a citizen is concerned the Supreme Court has got powers even over the Legislature we will not secure the rights to the citizen. So far as the liberty of a citizen is concerned it should be secured even against the Legislature.
I have been given notice of amendments to article 109-A, 113-A and 114-A also and they must also be considered in this connection because ultimately on the powers that we give to the Supreme Court depend the rights of the people. When the Privy Council has so far been enjoying these powers under section 112 under the principles of natural justice, the same powers under section 112 under the principles of natural justice, the same powers may be given to our Supreme Court in regard to natural justice so that it can do complete justice, not according to a particular law or a particular provision or a particular regulation but according to those principles which are known, which are established and which are fundamental in their importance. We will be securing our full rights only if the House agrees to see that the powers of the Supreme Court are enlarged to the fullest possible extent. So far as the present amendment goes I have nothing more to submit except to say that I am very glad that the efforts of all of us have succeeded in producing a compromise acceptable to all.
Prof. Shibban Lal Saksena : (United Provisions : General) : Mr. President, the amendment moved by Dr. Ambedkar really makes criminal appeals to be on a par with civil appeals. I argues the other day that every man who is sentenced to death should have the right to have his case reviewed by the Supreme Court before the sentence is carried out. I remember the difficulties of the poor men under sentence of death. I have lived in cells with condemned men and I know their feelings. Hardly one among a score of such people could afford to take their appeal to the Privy Council. It is stated here that if the High Court certifies that the case is a fit one for appeal to the Supreme Court, the Supreme Court shall have power to hear it. It will not go to the Supreme Court automatically. I feel that a man who is condemned to death but who may not have the means to file an appeal or to get the necessary certificate should also have his appeal heard by the Supreme Court
as of right. Nobody should be hanged unless his case is reviewed by the Supreme Court. According to the present amendment of Dr. Ambedkar, only about 100 out of 1000 murder appeals, i.e. about 10 per cent. will have the right to be heard by the Supreme Court if all the accused are able to bear the expenses thereof. so the richest men alone will get the right of appeal to the Supreme Court and poor men will be hanged without any hearing by the Supreme Court. Poor men cannot thus get justice even after this amendment is passed. I therefore think that thought the amendment is a compromise, the poor condemned prisoners will not get justice even under it.
The second part of the amendment provides : "Parliament may by law confer on the Supreme Court any further powers," I hope the working of this article will soon convince the Parliament that everybody who is under sentence of death should have a right to go to the Supreme Court in appeal automatically without any expense. Unless the Supreme Court has finally rejected his appeal, he should not be hanged. I have nothing more to say on this question.
Pandit Lakshmi Kanta Maitra (West Bengal : General) : Sir, at long last we now see the protest of termination of the very long-drawn debate that has gone on the question of investing the Supreme Court with powers of appeal in criminal matters. You were pleased to point out that the matter had been debated at sufficient length and that no further time should be spent in repetition of the arguments already advanced. I will keep that observation in view in the few remarks that I propose to make in connection with the amendment which has been moved by Dr. Ambedkar.
The House will realise that a considerable section of it is greatly exercised over the question as to whether or not the right of appeal in criminal cases should be embodied in the Constitution itself. There are two clear-cut sets of differences of opinion with regard to this. It has been held by one section that this right need not be conferred by the Constitution itself, but that Parliament should be left in future to legislate and confer such powers as it may think necessary in criminal matters. But Members like us are firmly of the view that, whereas provision was being made in the Constitution itself for appeals in civil matters, there was absolutely no justification for not embodying the same right of appeal in criminal matters. We feel that we should not give the country the impression that we allow to property more sanctity than to human life.
Now, after all these discussions, I think what has been crystallised it to be found in the amendment moved by Dr. Ambedkar. The main demand of a considerable section of the House was that in cases involving capital punishment there should be a right of appeal provided in the Constitution itself. I firmly held that view, but the objection was that there would be such a plethora of criminal cases involving death sentences that a very large number of judges would have to be appointed to decide them. I particularly drew attention to two categories of cases in which death sentence was imposed; a person is
[Pandit Lakshmi Kanta Maitra]
acquitted by the Sessions Court of a charge of murder, the Government prefers an appeal against the acquittal and the High Court reverses the judgment of the Lower Court and sentences the man of death. Such a man should have the right of appeal, where the judgment of the High Court reversing the judgment of the lower court may be contested.
I am very glad that in the amendment moved by Dr. Ambedkar to this article this has been specifically provided. I would particularly ask my friends to scan the expressions used in this connection which if properly understood will eliminate all chances of further debate on this article. New article 111-A proposed, says :
"(1) The Supreme Court shall have power to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a Supreme Court in the territory of India-
(a) if the High Court has on appeal
reversed the order of acquittal of an accused person and sentenced him do death...."
"That covers that category of cases on which we laid great stress. Clause (1) (b) covers another class of cases where the High Court has got inherent power to withdraw to its own file and try any case pending in Lower Court. This is inherent in the High Court; the High Court, as a court of record, has got this power. In such a trial, if the accused is sentenced to death, that virtually becomes the first sentence and rightly therefore appeal has been provided for such a contingency. The third paragraph deals with criminal matters provided that the cases which come up are amenable to the rules made by the Supreme Court or by the High Court. If these rules are complied with, then these will be fit cases for intervention by or for appeal to the Supreme Court. Now, this generally disposes of the matters which require to be embodied. Again, clause (2) provides for additional powers to the Supreme Court, that is to say, the future Parliament of this country may by law confer upon the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court, subject to such conditions and limitations as may be specified in such law. This is expected to cover cases for instance, of revisional jurisdiction just as is exercised by the High Courts now. I therefore am inclined to think that this is a comprehensive amendment, and I am satisfied that this brings about a compromise between the opposing views, and the legal profession to which I have the honour to belong will be grateful to Dr. Ambedkar for his spirit of accommodation shown in this respect. I think, Sir, that the form in which this amendment has ultimately emerged meets the requirements of our case and deserves the fullest support of this House.
Shri Krishna Chandra Sharma (United Provinces : General) : Mr. President, Sir, as I said the other day, in view of the provisions viz. articles 110 and 112 already passed by the House, I do not see the necessity for further provisions for appeals from the High Court to the Supreme Court. Sir, much has been said about the life and liberty of the person. I think there is a misunderstanding with regard to the procedure in criminal cases as against the procedure in civil cases. In a criminal case the serious cases come first before the committing Magistrate. The committing Magistrate takes evidence : the defence can take the statements of the witnesses in the Police diaries and can get the witnesses confronted with the statements before the Police. That is one stage in which the prosecuting witnesses are cross-examined, their veracity tested, their bona fides questioned, and there is a good chance for the defence to plead that the case is a bogus case, without any foundation, is based on something which is not truth and there being no prima facie case, plead for discharge. And then, Sir, from the committing Magistrate the case goes to the Sessions Judge. Again the defence has got the right to cross-examine
witnesses. The defence can again call for the witnesses' statement made before the Police and also the statements made before the committing Magistrate, and then confront the prosecuting witnesses with those statements and produce defence. The fullest opportunity is given to the defence to place its case. The trial is by jury, or with the aid of assessors.
Mr. President : The honourable Member's argument comes to this that there should be no appeal. As there is no amendment that there should be no appeal, I do not think this argument will help the House at all.
Shri Krishna Chandra Sharma : My submission is that I do not support subclause (a) and (b), though I support sub-clause(c) and clause (2) of the amendment. What I beg to submit is that there is enough chance, enough opportunity, for the accused to cross-examine and to test the evidence and then to put the whole case before the Session Court, and after the Sessions Court, and after the Sessions Court, he has
got the right of appeal to the High Court. Sub clause (a) says that if the High Court has on appeal reversed the order of acquittal of an accused, the accused should have at least one right of appeal. My submission is that it is not the accused alone who is the aggrieved party. In the case of a child murdered in the street, the mother of the child is also an aggrieved party. If the accused has a right of appeal on conviction, the mother of the child murdered in the street has equal right to go before the Court and say, "the man has murdered my child. I have a grievance against the follow. The stability of the State demands, the cause of prevention of crime demands that the man must be hanged." It is wrong to say that the accused alone is an aggrieved party and as such on conviction must have the right of appeal. With equal force, with equal reason it can be pleaded that the aggrieved party is the women whose child has been murdered and as such she has got as much right to go to the superior court and say that the accused must be changed.
Pandit Lakshmi Kanta Maitra : That right is exercised by the High Court when there is an acquittal.
Shri Krishna Chandra Sharma : The right of the deceased's mother to approach the State for appeal is equally sound as the right of appeal of the accused to the High Court against his conviction. So it is not right to hold that the accused must have at least one right of appeal on conviction, and if convicted for the first time for murder, under sub-clause (a) he must have the right of appeal to the Supreme Court. I see no soundness in this argument. Another thing I would submit and that is this : There is a lot of talk about the life and liberty of the person. When the question of the Parliament conferring jurisdiction on the Supreme Court was discussed, Mr. Lari said, "Parliament is a question of the party; it is a question of the Cabinet and it is a question of the Prime Minister." I beg to submit that it does not look very nice to talk of finer things in a country where women are raped on the road or a child is murdered for a two rupee worth necklace, or a mochi is killed in the street of a city because he refuses to accept six pies instead of his demand of one anna or murder is usual in a quarrel over water in the field. You have to take notice of facts as they are. After all justice is related to conditions of life. Justice is only the will of the people, and the will of the people is represented by the Parliament. I beg again to submit that the people who are too wise and the people who are actually too foolish would never make a stable society. It is the people who talk of these finer things who never care for the stability of the society, for the stability of the State. Take for instance the case of Austria. There are too many scientists; there have been too many lawyers, too many philosophers, too many men of letters, men of genius and they will all differ and would never agree. The net result was that Australia was one country in the whole history of human
organization which never got a stabilised State, which never got peace and order, despite the fact that some of the persons born in Australia were the greatest men in the world, in the field of science, in the field of philosophy; and there is the case of the other people who are too foolish to understand the urgency of the situation.
Mr. President : I am afraid the honourable Member is going much beyond his point.
Shri Krishna Chandra Sharma : So my submission is that the question of justice, the question of personal liberty, the question of life is a question related to facts, related to conditions and you cannot run away from the conditions as they prevail in the development of society.
As regards clause (b) in most of the cases is withdrawn from the subordinate court on the application of the accused. And in rare instances, it is withdrawn at the instance of the prosecution. It is always pleaded that there is a reasonable apprehension that justice would not be done in the case at the place where the case
is being tried. The case is withdrawn from the subordinate court to the High Court; it is withdrawn with the condition prevailing in that area or the conditions in the court are such that there is reasonable apprehension that justice would not be done there. So, Sir, for the better condition and the sense of confidence, the High Court takes up the case. I say that if the reason underlying is to create a sense of security, a sense of confidence and the High Court judge looks into every aspect of the question, discusses the fact-the evidence has already been discussed, crossexamined and tested I-do not see any reason that there is any cause to reopen the case again before the Supreme Court. For, after all, what would the Supreme Court do? The Supreme Court would discuss the abstract questions of justice. As I already said, life is too much a living thing and differs from the abstract principle and justice need not only be done to the accused, but justice must needs be done to the aggrieved party, to the State, because the State wants stability, the aggrieved party wants revenge and society wants the prevention of crime. All these factors are important and have to be considered and taking all these factors in conjunction with the state of society such as is in this country, I beg to submit that we need not go any further than the High Court and the High Court should be the final forum in criminal cases.
I would support sub-clause (c) and if in any case it is so important, there are any legal points and from the point of view of justice it covers so many other questions, so many other cases or it is a general question of law that there should be uniformity on the principle of law or interpretation thereof, I would submit that sub-clause (c) of the amendment has a case, and may be supported and so also clause (2). I am fortified by a provision in the American Constitution with regard to the Supreme Court. The provision runs :
"Sub-section (2) of article 3.-In all cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact with such exception under such application as the courts shall make."
Sir. in the American Constitution, it is said that the judiciary is supreme and it dominates, as against the English Constitution where the Parliament is supreme or against the present Indian Constitution where the executive dominate. So if in America where the judiciary dominates, there is a provision that the power of the Supreme Court would be conditioned or subject
to the law of Parliament, I see reason why we should go further than the American Constitution. As to what sort of appellate jurisdiction exists in America at present, I beg to read from a book on American Constitution by Prof. Zink :
"At different periods in the history of the United States the exact extent of appellate jurisdiction has varied, but there has been a general trend in the direction of cutting it down. When W.H. Taft become Chief Justice, he found that the Supreme Court was distinctly behind in its docket and devised means for a more prompt disposal of its work. Acting on such recommendations Congress further limited the cases that could be appealed to the court as a matter of right, much to the consequence ought to be permitted a hearing in the highest court of the land. At present only two varieties of cases may be carried as a matter of right beyond the highest state court or the circuit court of appeales in the federal system (1) where it is asserted that a right or provision of the national Constitution, treaties, or statutes has been denied or ignored, and (2) where a state law or a provision of a State constitution is alleged to conflict with the national Constitution, treaties made under the authority thereof, or laws passed in pursuance thereof."
This is the position of the American Supreme Court. As I submitted before,
it is accepted that in the American Constitution the judiciary is supreme. Where the judiciary is supreme, the state of affairs are as I quoted from the book. So, Sir, in our country where conditions prevail which require speedy justice and prevention of crime, I do not see any reason for the power being given to the appellate court as in sub-clauses (a) and (b); I would, of course, gladly support the provision in sub-clause (c) and the provision in clause (2).
Shri Alladi Krishnaswami Ayyar (Madras : General) : Sir, amongst the chorus of praise which this amendment has received from all sections of the House, I am extremely reluctant to make any observations which may sound a note of dissent. It must be taken on the whole that the speeches indicate that the amendment proposed by Dr. Ambedkar has the general support of the House, but at the same time I feel it my duty to refer to one or two points as it may serve to indicate what exactly is the scope of this article 111-A.
The latter part of it, the proviso, is a reproduction of section 411-A of the Criminal Procedure Code relating to appeal from the sentences of the High Court. Under this clause, an appeal shall lie subject to such rules as may from time to time be made by the Supreme Court and to such conditions as the High Court may establish or require. Under clause (c) it is open to the Supreme Court to lay down any restrictions, any conditions as to the right of appeal. Similarly, the High Court may also lay down any conditions as it choose in regard to the right of appeal. I feel some difficulty, Sir, in finding how this clause, the Supreme Court has an unfettered discretion to grant special leave in any criminal case. The terms of article 112 are in no way restricted or conditioned by any such clauses. Supposing for example, in the exercise of its power, the Supreme Court lays down certain conditions, and certain restrictions for the exercise of the power of certification by the High Court, is it intended so far as the High Court is concerned, it will be subject to such conditions as may be laid down by the Supreme Court? Though the conditions themselves will be laid down by the Supreme Court, it is the High Court that is invested with the power to grant a certificate. We will take it that the Supreme Court lays down a rule that a High Court can certify only cases where there is a particular kind of miscarriage of justice, misdirection to the jury or admission of inadmissible evidence or some other thing. Are we to take it that in the exercise of its jurisdiction under article 112. the Supreme Court is not fettered by these rules which are laid down for the benefit of the High Court under clause (c)? That is a point on which I have no doubt Dr. Ambedkar will enlighten the House : that is, sub-clause (c) taken along with article 112 of the Constitution. If the distinction is between certification by the High Court and grant to leave by the Supreme Court, I should think it is meaningless. It is inconceivable that the Supreme Court should say that so far as the High Court is concerned, it may not certify unless certain conditions are satisfied, but so far as the Supreme Court is concerned, it continues to have an unfettered discretion under article 112. That is the point on which I feel some difficulty.
Then, again, with regard to sub-clause (a) and (b), the position is this. Sub-Clause (a) says : "if the High Court has on appeal reversed the order of acquittal of an accused person and sentenced him to death;". That clause will apply to a case where a Full Bench of the High Court has reversed the judgment of the Session Court in a jury trial. An exactly similar case arose recently in Madras wherein a Full Bench of the Madras High Court refused to interfere, and the Privy Council reversed the decision, and the case came back to the High Court and ultimately, the party was acquitted. That is a case where conceivably there has already been an appeal provided within the precincts of the High Court. So far as sub-clause (b) is concerned, that is a case which
the High Court has withdrawn for trial before itself from any court subordinate to itself. So far as cases covered by clause (b) are concerned, an appeal will lie directly to the Supreme Court from a decision of a single judge, whereas in the other case, presumably, an appeal will have to be tried in the High Court before an appeal is launched in the Supreme Court.
These are some of the consideration which have included me in leaning more in favour of, and supporting the amendment which was tabled by Dr. Ambedkar yesterday. It is not that I am hard upon the criminals or that I do not sympathise with the lot of people who may be convicted for murder. Whereas all these considerations can be dealt with in a general revision of criminal law by Parliament they cannot be adequately dealt with in a single article of the Constitution. That is the only reason for which I contended some time ago in connection with the discussion under another article that the matter may conceivably be taken by Parliament. Anyhow, I do not want to sound a note of dissent from what is conceived to be in the larger interests of the criminals of this country. We have also no data exactly as to in how many cases the High Court has interfered with cases of acquittal by the court of first instance. These are the considerations which could be legitimately taken into account in Parliament legislating; anyhow, I wanted to place these observations before the House for what they are worth.
Shri Raj Bahadur (United State of Matsya) : Mr. President, I am afraid I may perhaps surprise and disappoint some of my Friends by giving expression to certain doubts and misgivings, about the desirability and wisdom of incorporating this provision in our Constitution at the present juncture and in the present state of our society.
I know that there is ample justification for the view what an accused person must be given the fullest opportunity for defence in a court of law. His right of appeal must not be impaired or restricted in any shape or form. I also recognise the soundness of the healthy principle that the innocence of an accused person must be taken for granted as a presumption unless it is rebutted by solid evidence. Nevertheless, there is another side of the case also. Viewed from the side of the complaint, from the side of the family which has been deprived of one of its near and dear one by the foul hand of a murderer, is it not simply shocking that under the grab of an appeal, an accused person is provided with an opportunity to postpone or procrastinate the hand of justice? It is very well known what the feeling of the common man in the country is, about the delay in the trial of the Gandhi murder case. Without offering any
remarks on the merits of the case which is still sub-judice, I am simply voicing the feeling of the man in the street when I say that in a case where the murder took place in broad day light, in the presence of hundreds of persons, the trial has been hanging fire for over an year. We have got to see that justice is not only done, but it appears also to be done, and done speedily.
I may submit that the object of criminal justice is three-fold it is punitive, preventive, and reformative. I submit that so far as the right of appeal is concerned there is a view-point that this right of appeal also constitutes the right to delay justice. It is a sort of thing which is very much like the right of "filibustering" enjoyed by the Parliamentarians. I may point out that while this right of appeal may not detract ultimately from the punitive aspect of justice but it may, in a certain measure, detract from its preventive and aspect of justice but it may, in a certain measure, detract from its preventive and reformative purposes. It is therefore only meet and proper that this aspect of the case must not be lost sight of by us. We know that the system of administration of justice that we have inherited was foisted on the country by the British, and although much can be said in favour or against it, it cannot be denied that it suffers
essentially from three fundamental defects, namely, it is very expensive, it involves a lot of delay and at the same time it gives scope for perjury and fabrication of evidence. So the basic question, and the fundamental issue that is before us is not merely giving the right of appeal to a person convicted and sentenced to death here or there before the Supreme Court, but that is before us is not merely giving the right of appeal to a person convicted and sentenced to death here or there before the Supreme Court, but that at some stage-whether the stage has come now or will come in the future is itself another debatable question-we have to take in hand the question and grapple with the problem of the reform of our laws and the entire system of administration of justice. It is a crucial question. Now if we analyse the official amendment-as I would like to call it-we may see that clauses (a) and (b) of the new article give a very limited scope for appeals we know that it is only once in a blue-moon that an order or acquittal is reversed by the High Court, and that it is also very rare that a High Court takes over a case and decides it itself. So the only right of appeal which may be granted in a substantial number of cases would be the one falling under the purview of sub-clause (c). The very application of this article would, thus, depend upon the rules which have to be made under the proviso attached to the said sub-clause. So everything depends upon the rules; but there is another point also. My honourable and learned Friend Pandit Thakur Das Bhargava happened to observe during the course of his speech to-day that there is justification not only for appeals in cases of sentences of death but in other cases also and that we should take that question also in hand. With all respect to the erudition and experience of my learned Friend Pandit Bhargava I submit that this is bound to involve the same problem, the problem of-to use the rather state phrase-"Justice delayed is Justice denied". Obviously also if every criminal case is allowed to go in appeal to the Supreme Court it is bound to result in a considerable amount of delay in the disposal of cases. This would not inspire much confidence in the system of administration of justice. Law's delays have been proverbial ever since Shakespeare wrote Hamlet. We have to make some such provision in our laws that at least in our country we find out or evolve some method by which we may eliminate those delays. I submit that we should also not lose sight of the fact that recently there has been an appreciable rise in the incidence of crime in our country. Everybody we have reports from provinces and we read reports of crimes in the newspapers. We see that there is almost a sort of crime wave in some parts of the country at least-we cannot lose sight of the happenings that are taking place on our Eastern and Western borders. We cannot lose sight of these facts as also of the incidents that are taking place in Calcutta and around it. We have to take into account the fact that there is bloodshed and turmoil in out neighbouring countries. Only this morning papers showed that while there were wars and battles raging already in the countries on our eastern borders, there has been bombing in a neighbouring country on our western side also. At such a critical juncture it is only proper that we must see that three are no inordinate delays in the disposal of cases and in the administration of justice in our country. I submit that, as the guardians of the freedom and liberty that we have won for the country, we must see that this is not lost in a chaos of crime and lawlessness. I would request that in my humble opinion the question of right of appeals in these cases may better be left over to the Parliament to deal with.
Dr. Bakhshi Tek Chand (East Punjab : General) : Mr. President, Sir I have only a few words to say on article 111-A in the form in which it has now emerged in the last amendment which Dr. Ambedkar has moved this morning. This amendment, if I may say with respect, is substantially
the same which I had moved yesterday in supersession of the other amendments Nos. 26 and 27 of which notice had been given by me earlier. The only difference between my amendment and the present amendment of Dr. Ambedkar is that clause (b) has been added to meet a certain type of cases-very rare, indeed-which was not covered by my amendment, viz., when a High Court has withdrawn a case from a subordinate Court for trial by itself and at the conclusion of the trial has convicted the accused and sentenced him to death. I think cases of this kind will not be more than two or three in the whole of India in the course of a year. Still this was an omission in the amendment which I had moved and, I agree that the proposed clause (b) be incorporated in the article.
On the amended article, different viewpoints have been presented to the House today by honourable Members who have taken part in the debate. On the one hand some Members have said that the right of appeal, given by this amendment, is very limited and it should be enlarged so as to include all cases in which the High Court has on reversal of the order of acquittal passed a sentence on the accused person whether of transportation for life or a lesser sentence. This is the view which Pandit Bhargava strongly urged the other day and has also repeated today. With great respect, I submit that this would be enlarging the scope of the article to unreasonable limits. It will be admitted that it is not desirable to convert the Supreme Court into a Court of criminal appeal for all cases. If that were so, then having regard to the volume of criminal litigation in this country, even in cases of murder or other serious crimes, the Supreme Court will be flooded with criminal appeals. It has been said that expense and enlargement of personnel of the Supreme Court should be not stand in the way of giving relief to persons convicted in criminal matters, as life and liberty of human beings is more important than property, with regard to which Civil appeals have been provided for in article 111. But that is hardly a correct view of the case. Life and liberty is certainly more important than property but an unrestricted right of appeal either in civil or criminal matters will no incalculable harm to society. Take an ordinary murder case. In the Presidency towns the trial is held in the High Court sessions assisted by a jury, and the mofussil and in provinces where the High Court has not original jurisdiction, the accused is tried by a Sessions Judge with the aid of a jury or assessors. In most cases the decision turns on a pure question of fact, and the Session Judge after hearing the evidence has convicted the accused and passed a sentence which may be one of death. An appeal is allowed to the High Court as of right; even if three is no appeal by the accused the sentence of death passed by the Sessions Judge has to be confirmed by the High Court. In either case the High Court goes through the whole evidence over again and if it finds that the man has been rightly convicted on the evidence, there are concurrent findings on facts. In such a case it will be undesirable to allow a second appeal to the SupremeCourt. It is not permitted in any country in the world. After all, there must be some limit to appeals and further appeals. It would be wrong in cases where the High Court has agreed with the trial court on questions of fact even if the case is of murder, and the sentence is of death, to allow a further appeal as of right to the Supreme Court. The number of such cases in India including the States under the jurisdiction of the Supreme Court will certainly exceed one thousand a year. And it would be dangerous to allow unrestricted appeals in every such case. It will be remembered that in civil cases the Privy Council has made it a rule of practice not to disturb concurrent findings on facts. If the same rule is applied to criminal cases, in most cases it will be sheer waste of time and money to allow further appeals. The Supreme Court is not likely to differ on pure questions of fact,
where on an examination of the evidence, both the trial court and the High Court have concurred. Appeals should be allowed in exceptional cases only and that is what the amendment of Dr. Ambedkar contemplates. Sub-clause (a) confers an important right and remedies an existing lacuna in the law. This relates to cases where a man acquitted by the Sessions Court in the mofussil or at the High Court Sessions in the Presidency towns is, on appeal against such acquittal by the provincial Government, convicted by the Appellate Bench. Here in the first place there is the initial presumption of law that every person is presumed to be innocent until he is proved to be guilty. This presumption is further strengthened by the fact that the trial judge has found him innocent. If against this double presumption, the Appellate Bench finds him guilty and sentences him to death, it is certainly a matter which requires further investigation and the amendment seeks to give a right of appeal to the Supreme Court in such cases. It really is analogous to article 111 dealing with appeals in civil cases where the value of property is Rs. 20,000 or more and the judgment of the Appellate Court is one of reversal of that of the trial court.
Sub-clause (b) relates as I have said already, to a more limited class of cases and really is a corollary to sub-clause (a).
With regard to sub-clause (c) certain apprehensions have been expressed by honourable Members. Shri Alladi Krishnaswami Ayyar thinks that it will come in conflict with article 112, which gives the Supreme Court power to grant special leave to appeal in criminal cases. With regard respect I fail to see any conflict between the two. The power of the Supreme Court to grant special leave to appeal is of a peculiar nature. This is at present done in exercise of the Royal prerogative which His Majesty the King exercises through the Judicial Committee of the Privy Council. In the Constitution, the Supreme Court will be invested with the same power by article 112. As I submitted the other day in regard to article 112, it is very much restricted in its scope. The Supreme Court has discretion, which it may exercise in any way it likes and in any kind of case civil, criminal or any other proceeding decided by any court subordinate to it. At present the Privy Council grants leave only in rare cases, where it is of opinion that some principles of natural justice have been departed from,--a phrase which is vague and undefined. It does not cover substantial and serious errors of law or even miscarriage of justice. It is, therefore necessary to provide appeals in such cases in which the High Court certifies that the case is a fit one for appeal to the Supreme Court. This is sought to be done in clause (c) and its proviso which have been taken verbatim from sub-section (iv) of section -A, which was introduced in the Criminal Procedure Code by Act XXVI of 1943. That sub-section however, is limited to cases in which a person has been tried in the original side of a Presidency High Court and has been convicted. Before 1943 there was no right of appeal in such cases, unless the Advocate-General certified that it was a fit case for further appeal; and the matter ended there. It was felt in many cases that thought there had been gross miscarriage of justice, yet there was not even one appeal. In 1943 by the amending Actan appeal was allowed to a convicted person on questions of law, or even on questions of fact it the trial judge certified that the case was a fit one for appeal or it the Appellate Bench found that the case was one requiring further consideration even on facts.
Then there is the further provision in sub-section (iv) that it the Appellate Bench is satisfied that the case is a fit one for further appeal to the Privy Council, it may give the certificate and the appeal will lie to the Privy Council. This provision, however, is limited only to those cases in which the trial has been on the original side of the High Court. Take for instance the province of Madras. If the crime has been
committed within the limits of the presidency town of Madras then the section 411-A applies. But if the crime is committed, say, ten miles beyond or in another place like Trichinopoly or Tanjore, then there is no right of appeal at all to the Appellate Bench nor can the case go to the Privy Council even on certificate by the High Court. What clause (c) of the proposed article 111-A seeks to do is to extend the same provision and the same privilege to persons outside the Presidency 'owns, that is to say, to the mofussil, in the there Presidencies of Bengal, Bombay and Madras, as well as to other provinces. I submit that is a provision to which no reasonable objection can be taken.
My learned Friend Mr. Raj Bahadur thinks that this article will open the flood-gates of litigation and that every case, regardless of the nature of the crime or of the sentence passed, would be open to appeal to the Supreme Court. With great respect I submit that that is not so. It is only in a very limited class of cases that the High Court is likely to certify that the case is a fit one for appeal. Judges who have themselves decided a particular case are not likely to grant a certificate lightly. They will do in so very very rare cases only. So far as I am aware, after 1943 when section 411-A was enacted, there have not been more than three or four cases in which appeals have gone to the Privy Council. I do not think, that there will be more than eight or ten such cases throughout the year from the whole country. It will only be in a few cases, in which the question involved is of such great and general importance that the High Court will ask the Supreme Court to pronounce an authoritative judgment upon it. I submit, that these provisions are very very salutary and they should be incorporated in the Constitutions.
I have only one word to say as regards what my Friend Mr. Naziruddin Ahmad said about contempt of court cases. He thought an appeal should be allowed in those cases as of right. Much as one would like cases in which a person has been convicted for contempt of court to be further reviewed, I am afraid, to allow an appeal to the Supreme Court in every such cases would be going too far. If there is an important question involved in a case, resort can be had to sub-clause (c) of article 111-A.
The provisions of the article in the form in which it has been moved by Dr. Ambedkar in amendment No. 198 meet all the requirements of the case and I would ask the honourable Members to accept it. The apprehensions of those who think that it will encourage crime, I submit, are wholly groundless. Equally groundless are the apprehensions of those who think that it is unduly limited in scope. It is a well- balanced and salutary provision which should find a place in the Constitution.
Shri L. Krishnaswami Bharathi (Madras: General): Sir, the question may now be put.
Mr. President: The question is:
"That the question be now put."
The motion was adopted.
The Honourable Dr. B. R. Ambedkar: Mr. President, Sir, I rise to make just a few observations in order to give the House the correct idea of what is proposed to be done by the introduction of this new article 111-A. The first thing which I should make clear is that it is not the intention of article 111-A to confer general criminal appellate jurisdiction upon the Supreme Court. The jurisdiction sought to be conferred is of a very limited character.
In showing the necessary why it is desirable in my judgment to confer appellate criminal jurisdiction upon the Supreme Court as specified the sub-clause of article 111-A. I proposed to separate sub-clause (a) and (b) from sub-clause (c) because they stand on a different footing. As the House knows, (a) and (b) confine the appellate jurisdiction of the Supreme Court only to those cases where there has been a sentence of death: in no other case the Supreme Court is to have criminal appellate jurisdiction. That is the first point that has to be borne in mind.
I shall state briefly why it is necessary to confer upon the Supreme Court this
limited appellate jurisdiction in cases where has been a sentence of death passed upon an accused person. The House should note that so far as our criminal jurisprudence, as it is enshrined in the Criminal Procedure Code, is concerned, there is one general principle which has been accepted without question and that principle is this that where a man has been condemned to death he should have at least one right of appeal, if not more.
Mr. President: May I just point out one thing? Your amendment does not cover the case of a person whose sentence has been enhanced to a sentence of death.
The Honourable Dr. B. R. Ambedkar: We do not propose to give such a thing. That is the point. With regard to enhancement of the sentence we do not propose to confer criminal jurisdiction of an appellate nature on the Supreme Court. We do it with open eyes and I think everybody ought to know it. That is not the intention. It must be generally accepted that where a man has been condemned to death he should have at least one right of appeal. Starting with that premise and examining the provisions of the Criminal Procedure Code it will be found that there are three cases where this principle is, so to say, violated or not carried into effect. The first case in the case where, for instance, the District Judge acting as a Sessions Judge acquits an accused, person; the Government which has been invested with a right of appeal against the acquittal appeals to the High Court , and the High Court in its appellate jurisdiction condemns the man to death. In a case like this no appeal is provided. That is one exception to the premise.
The second case is the case of the Sessions Judge in the High Courts of Bombay, Calcutta and Madras, where sitting in a sessions court he acquits a criminal; then the Government takes an appeal to the High Court on its appellate side and the appellate side on hearing the appeal condemns the man to death. There again there is no appeal. Then there is the third case, which is worse, namely, that under section 526 of the Criminal Procedure Code a High Court, in exercising the powers conferred upon it by that section, withdraws a case to itself and passes a sentence of death. There again there is no appeal.
Mr. Naziruddin Ahmad: There is a right of appeal in such cases.
The Honourable Dr. B. R. Ambedkar: No. No appeal from the High Court.
Mr. Naziruddin Ahmad: Under section 411-A of the Criminal Procedure Code.
The Honourable Dr. B. R. Ambedkar: Section 411-A applies only to the High Court of Calcutta, Bombay and Madras. Even there it does not apply to all cases or to cases where such High Court have acted under section 506. Section 411-A is confined to appeals from the judgment of High Court sitting on the original side, in sessions. Therefore, Sir....
Pandit Lakshmi Kanta Maitra: Section 526 generally refers to transfer of cases.
The Honourable Dr. B. R. Ambedkar: When a case is transferred and tried by the High Court is no right of appeal. It has extraordinary jurisdiction. Therefore these are three flagrant cases where the general principle that a man who has been condemned to death ought to have at least one appeal is not observed. I think, having regard to the enlightened conscience of the modern world and of the Indian people, such a provision ought to be made. The object of sub-clause (a) and (b) therefore is to provide a right of appeal to a person who has been acquitted in the first instance and has been condemned to death finally by the high Court. I do not think that on grounds of conscience or of humanity there would be anybody who would raise objection to the provisions contained in sub-clause (a) and (b).
Now I come to sub-clause (c). With regard to this the House will remember that it has today an operative force under the Criminal Procedure Code, section so, far as the High Courts of Calcutta, Madras and Bombay are concerned. This right of appeal to the Privy Council on a certificate from the High Court that it is a fit case was con erred by the Legislative Assembly in the year
1943, and very deliberately. We have therefore before us two questions with regard to the provision contained in section 411 of the Criminal Procedure Code. There are two courses upon to this House: either to take away this provision altogether or to extend this provision to all the High Courts. It seems to me that if you take away the provisions contained in section 411 which permit an appeal on a certificate from the High Court, you will be deliberately taking away an existing right which has been exercised and enjoyed by people, at any rate, in three different provinces. That seems to me an unnatural proceeding--to take away a judicial right which has already become, so to they, a vested right. The only alternative course therefore is to enlarge the provisions in such a manner that it will apple to all the High Court. And the course that has been adopted in my amendment is the second course, namely, to extend it to all the High Court. My Friends who are agitated that this night open the flood-gates of criminal appeals to the Supreme Court have, I think, forgotten two important considerations. One important consideration is that the power of hearing appeals which is proposed to be conferred on the Supreme Court under sub-clauses (a) and (b) of clause (1) of the new article may vanish any moment that the legislature abolishes the death penalty. There will be no such necessity left for appeals to the Supreme Court if the legislature, thinking of what is being said in other parts of the world with regard to death penalty, and taking into consideration the traditions of this country, abolishes the death penalty: in that case sub-clauses (a) and (b) would ultimately fall into desuetude and the work of the Supreme Court so far as criminal side is concerned will if not vanish.
With regard to sub-clause (c) it will be noticed that it has been confined in very rigid limits by the proviso which goes along with it, namely 'Provided that an appeal under sub-clause (c) of this clause shall lie subject to such rules as may from time to time be made by the Supreme Court and to such conditions as the High Court may establish or require." Therefore, the certificate is not going to be an open process available merely for the asking. It will be subject at both ends to the conditions and limitations laid down by the High Court and the rules made by the Supreme Court. Therefore it will be realised that sub-clause (c) is a very rigid provision. It is not flexible and not as wide as people may think.
Pandit Lakshmi Kanta Maitra: Modified by the proviso.
The Honourable Dr. B. R. Ambedkar: Yes, as modified by the proviso.
Now, I come to clause (2) of my amendment. There you have got the general power given to Parliament to enlarge the criminal jurisdiction of the Supreme Court beyond the three cases laid down in my amendment. There was a point of view that the three cases mentioned in clause (1) of my amendment ought to be enough and that there ought not to be a door kept open for Parliament for enlarging the criminal jurisdiction of the Supreme Court and that sub-clause (a), (b) and (c) ought to be the final limit of criminal jurisdiction of the High Court. Well, the only answer I could give is this: It is difficult to imagine what circumstances may arise i future. I think it would be better to believe it if a man said that there would he no circumstances arising at all requiring Parliament to confer some kind of criminal appellate jurisdiction upon the Supreme Court. Supposing such a contingency did arise and if the provisions of clause (2) of my new article were not there, what would be the position? The position would be that the Constitution would have to be amended by the procedure we are proposing to lay down in a subsequent part of this Constitution. The question therefore is this: should we make it as hard as that, that the Parliament should also not have the power unless the Constitution is amended, or should we leave the position flexible by enabling Parliament to enact such law, leave the time, the circumstances and the
choice to the Parliament of the day?
The Honourable Shri K. Santhanam (Madras: General): May I point out that under article 114 Parliament will still have the power to invest the Supreme Court with jurisdiction.
The Honourable Dr. B. R. Ambedkar: I am afraid 114 does not deal with that matter. I have not got the copy with me; otherwise I would have replied. It is only with regard to the Union List.
The Honourable Shri K. Santhanam: It deals with the jurisdiction of the Supreme Court in relation to matters contained in the Union List.
The Honourable Dr. B. R. Ambedkar: Yes, but supposing they want to enlarge the jurisdiction with regard, for instance, to the Concurrent List, List III, they cannot use article 114.
Now, Sir, I come to some of the observations which were made by my Friend, Mr. Alladi Krishnaswami Ayyar. His observations related mostly to sub-clause (c). His first question was, what is the use of having sub-clause (c) if the provisions of sub-clause (3) are hedged round by the provisions contained in the proviso which goes with it, viz., rules to be made by the Supreme Court.