Vol. 13 · pages 1046–1050

1013DRAFT CONSTITUTION an enemy alien. I do not think that there could be any further objection to the reservation made in clauses (3)(a) in respect of an enemy alien. With regard to sub-clause (b) of clause (3) I think it has to be recognised that in the present circumstances of the country, it may be necessary for the executive to detain a person who is tampering either with public order as mentioned in the Concurrent List or with the Defence Services of the country. In such a case I do not think that the exigency of the liberty of the individual should be placed above the interest of the State. It is on that basis that sub-clause (b) has been included within the provisions of clause (3). There again, those who believe in the absolute personal liberty of the individual will recognise that this power of preventive detention has been held in by two limitations : one is that the Government shall have power to detain a person in custody under the provisions of clause (3) only for three months. If they want to detain him beyond three months they must be in possession of a report made by an advisory board which will examine the papers submitted by the executive and will probably also give an opportunity to the accused to represent his case and come to the conclusion that the detention is justifiable. It is only under that that the executive will be able to detain him for more than three months. Secondly, detention may be extended beyond three months if Parliament makes a general law laying down in what class of cases the detention may exceed three months and state the period of such detention. I think, on the whole, those who are fighting for the protection of individual freedom ought to congratulate themselves that it has been found possible to introduce this clause which, although it may not satisfy those who hold absolute views in this matter, certainly saves a great deal which had been lost by the non-introduction of the words ‘due process of law’. Sir, I commend this article to the House. ***** *Pandit Thakur Das Bhargava : ...The House has just heard the speech of the honourable Mover of the main motion. I need not recall to the memory of the House the heated controversy which raged about a year and a quarter ago round the words ‘due process of law’. Now a substantive part of the ‘due process’ has practically been given up after 70 per cent, being secured in article 13. I should think that in the circumstances of our country, this provision of ‘due process’ is certainly necessary cent per cent. It is the only right process in this country.... *CAD, Vol. IX, 15th September 1949, pp. 1500-1501.

1014 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The Honourable Dr. B. R. Ambedkar : Sir, may I say a word? I am prepared to accept one of the amendments of my honourable Friend which says that the accused shall have the right to be defended. I can add these words in the last line of clause (1) of article 15A. It will run thus : ‘be denied the right to consult or to be defended by lawyers of his choice.’ I think that will carry out my honourable Friends intention. Pandit Thakur Das Bhargava : In trials as well as in criminal proceedings? The Honourable Dr. B. R. Ambedkar : ‘Defended’ means that. Could we not curtail the debate now? ***** *Shri H. V. Kamath : ...In order to obviate or at least mitigate the evils or the harm that might accrue from unjust arrest of people by the police or other authorities I wish to provide through this amendment specifically that the person arrested shall be informed of the grounds of his arrest within seven days following his arrest. The words used in this article moved by Dr. Ambedkar are “as soon as may be”. I would be happy if the person is informed of the grounds even at the time of his arrest. The Honourable Dr. B. R. Ambedkar : That is the intention. You are worsening the position by your amendment. Shri H. V. Kamath : Why not then make it specific? I would welcome the substitution of the words “as soon as may be” by the word “immediately”. My Friend Shrimati Purnima Banerjee, has also moved an amendment to the same article, where she wishes to substitute the words “as soon as may be” by “not less than fifteen days”. I think fifteen days is far too long a period. I think twenty-four hours would be the best. In any case if there is any hitch in informing the arrestee of the grounds of his arrest, I think in no case should it exceed more than a week. Coming, Sir, to the next amendment (No. 108), I beg to move : “That in amendment No. 1 of List I (Eighth Week), in clause (2) of the proposed new article 15A, after the word ‘magistrate’, occuring at the end, the words ‘who shall afford such person an apportunity of being heard’ be added.” The Honourable Dr. B. R. Ambedkar : I must tell my honourable Friend Mr. Kamath that he is worsening the position. Our intention is that the words “as soon as possible” really mean immediately after arrest, if not before arrest. Clause (2) says that every person who is arrested and detained in custody shall be produced before the nearest magistrate within *CAD, Vol. IX, 15th September 1949, pp. 1515-16.

1015DRAFT CONSTITUTION a period of twenty-four hours of such arrest. No magistrate can exercise his authority in permitting longer detention unless he knows the charges on which a man has been detained. Shri H. V. Kamath : I know a little of the Criminal Procedure. I have known of cases where magistrates have remanded persons for fifteen days at a stretch without the police filling a chalan or charge sheet before him. I know of magistrates who have remanded persons without caring to go into the prima facie merits of the case. Another thing that Dr. Ambedkar said was that the words “as soon as may be” really means “immediately”. The Honourable Dr. B. R. Ambedkar : It means in any case within twenty-four hours. Shri H. V. Kamath : May I invite his attention to certain articles where the words “as soon as may be” have been used without any specific connotation. Take for instance article 280 which relates to the Emergency Powers of the President. The Honourable Dr. B. R. Ambedkar : The interpretation of the meaning of the words “as soon as may be” must differ with the context. Shri H. V. Kamath : I do not know whether Dr. Ambedkar will be always in India to interpret and argue with doubting layers and doubting judges as to the meaning of the words and phrases used in this Constitution. I am sorry Dr. Ambedkar will not be immortal to guide our judges and lawyers in this country. As the Constitution is being framed not for Dr. Ambedkar’s life time, but for generations to come, I think we must be specific in what we say. The Honourable Dr. B. R. Ambedkar : You are selling your immortality very cheap. Shri H. V. Kamath : I have no desire for physical immortality. It appears however that Dr. Ambedkar presumes he will be immortal. The Honourable Dr. B. R. Ambedkar : You might admit you have made a mistake in tabling this amendment. ***** *Shri H. V. Kamath : ...Dr. Ambedkar in his speech referred to the enthusiastic champions of absolute liberty. I shall make it quite clear that I am not an advocate of absolute liberty. Mr. President : He did not talk of absolute liberty today. Shri H. V. Kamath : He did, Sir, if I remember aright. (The Honourable Dr. Ambedkar noded in the affirmative). He referred to absolute personal liberty. I am not a champion or advocate of absolute personal liberty.... *CAD, Vol. IX, 15th September 1949, p. 1518.

1016 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES ARTICLE 15A *Shri Mahavir Tyagi (United Provinces : General) : Sir, Dr. Ambedkar will please pardon me when I express my fond wish that he and the other members of the Drafting Committee had had the experience of detention in jails before they became members of the Drafting Committee. The Honourable Dr. B. R. Ambedkar : I shall try hereafter to acquire that experience. Shri Mahavir Tyagi : I may assure Dr. Ambedkar that, although the British Government did not give him this privilege, the Constitution he is making with this own hands will give him that privilege in his life-time. There will come a day when they will be detained under the provisions of the very same clauses which they are making (Interruption). ***** †Smt. G. Durgabai : ...Sir, I commend this article for the acceptance of the House. Mr. President : I understand Dr. Ambedkar has to make certain suggestions to meet the criticisms that have been made against this article. I would therefore give him a chance to speak at this stage and if any further question arises we can consider it. Babu Ramnarayan Singh (Bihar : General) : Does he agree to remove the article altogether? Mr. President : No. The Honourable Dr. B. R. Ambedkar : Sir, I relly did not think that so much of the time of the House would be taken up in the discussion of this article 15-A. As I said, I myself and a large majority of the Drafting Committee as well as members of the public feel that in view of the language of article 15, viz., that arrest may be made in accordance with a procedure laid down by the law, we had not given sufficient attention to the safety and security of individual freedom. Ever since that article was adopted I and my friends had been trying in some way to restore the content of due procedure in its fundamentals without using the words “due process”. I should have thought that Members who are interested in the liberty of the individual would be more than satisfied for being able to have the prospect before them of the provisions contained in article 15-A and that they would have accepted this with good grace. But I am sorry that is not the spirit which actuates those who have taken part in this *CAD, Vol. IX, 16th September 1949, p. 1547. †Ibid., p. 1556-1565.

1017DRAFT CONSTITUTION debate and put themselves in the position of not merely critics but adversaries of this article. In fact their extreme love of liberty has gone to such a length that they even told me that it would be much better to withdraw this article itself. Now, Sir, I am not prepared to accept that advice because I have not the least doubt in my mind that that is not the way of wisdom and therefore I will stick to article 15-A. I quite appreciate that there are certain points which have been made by the various critics which require sympathetic consideration, and I am prepared to bestow such consideration upon the points that have been raised and to suggest to the House certain amendments which I think will remove the criticism which has been made that certain fundamentals have been omitted from the draft article 15-A. In replying to the criticism I propose to separate the general part of the article from the special part which deals with preventive detention; I will take preventive detention separately. Now turning to clause (1) of article 15-A, I think there were three suggestions made. One is with regard to the words “as soon as may be”. There are amendments suggested by Members that these words should be deleted, and in place of those words “fifteen days” and in some places “seven days” are suggested. In my judgement, these amendments show a complete misunderstanding of what the words “as soon as may be” mean in the context in which they are used. These words are integrally connected with clause (2) and they cannot, in my judgement, be read otherwise than by reference to the provisions contained in clause (2), which definitely say that no man arrested shall be detained in custody for more than 24 hours unless at the end of the 24 hours the police officer who arrests and detains him obtains an authority from the magistrate. That is how the section has to be read. Now it is obvious that if the police officer is required to obtain a judicial authority from a magistrate for the continued arrest of a person after 24 hours, it goes without saying that he shall have at least to inform the magistrate of the charge under which that man has been arrested, which means that “as soon as” cannot extend beyond 24 hours. Therefore all those amendments which suggest fifteen days or seven days are amendments which really curtail the liberty of the individual. Therefore I think those amendments are entirely misplaced and are not wanted. The second point raised is that while we have given in clause (1) of article 15-A a right to an accused person to consult a legal practitioner of his choice, we have made no provision for permitting him to conduct