Vol. 13 · pages 1051–1055

1018 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES his defence by a legal practitioner. In other words, a distinction is made between the right to consult and the right to be defended. Personally I thought that the words “to consult” included also the right to be defended because consultation would be utterly purposeless if it was not for the purpose of defence. However, in order to remove any ambiguity or any argument that may be raised that consultation is used in a limited sense, I am prepared to add after the words “to consult” the words “and be defended by a legal practitioner”, so that there would be both the right to consult and also the right to be defended. A question has been raised by the last speaker as to the meaning of the words “legal practitioner of his choice”. No doubt the words “of his choice” are important and they have been deliberately used, because we do not want the Government of the day to foist upon an accused person a counsel whom the Government may think fit to appear in his case because the accused person may not have confidence in him. Therefore we have used the words “of his choice”. But the words “of his choice” are qualified by the words “legal practitioner”. By the phrase “legal practitioner” is meant what we usually understand, namely, a practitioner who by the rules of the High Court or of the Court concerned, is entitled to practise. Now, Sir, I come to clause (2). The principal point is that raised by my Friend Mr. Pataskar. So far as I was able to understand, he wanted to replace the word “Magistrate” by the words “First class Magistrate”. Well, I find some difficulty in accepting the words suggested by him for two reasons. We have in clause (2) used very important words, namely, “the nearest Magistrate” and I thought that was very necessary because otherwise it would enable a police officer to keep a man in custody for a longer period on the ground that a particular Magistrate to whome he wanted to take the accused, or the Magistrate who would be ultimately entitled to try the accused, was living at a distance far away and therefore he had a justifiable ground for detaining him for the longer period. In order to take away any such argument, we had used the words “the nearest Magistrate”. Now supposing, we were to add the words “the nearest First Class Magistrate” : the position would be very difficult. There may be “the nearest Magistrate” who should be approached by the police in the interests of the accused himself in order that his case may be judicially considered. But he may not be a First Class Magistrate. Therefore, we have really to take a choice; whether we shall give the accused the earliest opportunity to have his matter decided and looked into by the Magistrate near-about, or whether we should go in search of

1019DRAFT CONSTITUTION a First Class Magistrate. I think “the nearest Magistrate” is the best provision in the interests of the liberty of the accused. I might also point out to my Friend, Mr. Pataskar, that even if I were to accept his amendment—“the nearest First Class Magistrate”—it would be perfectly possible for the Government of the day to amend the Criminal Procedure Code to confer the powers of a First Class Magistrate on any Magistrate whom they want and thereby cheat the accused. I do not think therefore that his amendment is either desirable or necessary and I cannot accept it. Now, those are the general provisions as contained in article 15 (a), and I am sure...* Pandit Thakur Das Bhargava : Kindly consider... The Honourable Dr. B. R. Ambedkar : Now, my Friend, Pandit Thakur Das Bhargava has raised the question of the right of crossexamination. Pandit Thakur Das Bhargava : And for reasons recorded. The Honourable Dr. B. R. Ambedkar : Well, that I think is a salutary provision, because I think that the provision which occurs in several provisions of the Criminal Procedure Code making it obligatory upon the Magistrate to record his reasons in writing enables the High Court to consider whether the discretion left in the Magistrate has been judicially exercised. I quite agree that that is a very salutary provision, but I really want my friend to consider whether in a matter of this kind, where what is involved is remand to custody for a further period, the Magistrate will not have the authority to consider whether the charge framed against the accused by the police is prima facie borne out. Pandit Thakur Das Bhargava : At present also under section 167(3) these words are there. It is today incumbent upon every Magistrate to whom a person is taken to record the reasons if he allows the detention to continue. The Honourable Dr. B. R. Ambedkar : That is quite true. They are there. But are they very necessary ? Pandit Thakur Das Bhargava : Absolutely necessary! The Honourable Dr. B. R. Ambedkar : Personally, I do not think they are necessary. Let us take the worst case. A Magistrate, in order to please the police, so to say, got into the habit of granting constant remands, one after the other, thereby enabling the police to keep the accused in custody. Is it the case that there is no remedy open to the *Dots indicate interruption as shown in original.

1020 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES accused ? I think the accused has the remedy to go to High Court for revision and say that the procedure of the Court is being abused. Pandit Thakur Das Bhargava : How can a poor person go to the High Court ? The Honourable Dr. B. R. Ambedkar : I do not want to close my mind on it. If there is the necessity I think the Drafting Committee may be left to consider this matter at a later stage, whether the introduction of these words are necessary. As at present advised, we think those words are not necessary. Now I come to the second part of article 15 (3) dealing with preventive detention. My Friend, Mr. Tyagi, has been quite enraged against this part of the article. Well, I think I can forgive my Friend, Mr. Tyagi, on that ground because after all, he is not a lawyer and he does not really know what is happening. He suddenly wakes up, when something which is intelligible to a common mind, crops up without realizing that what crops up and what makes him awake is really merely consequential. But I cannot forgive the layer members of the House for the attitude that they have taken. What is it that we are doing ? Let me explain to the House what we are doing now. We had before us the three Lists contained in the Seventh Schedule. In the three Lists there were included two entries dealing with preventive detention, one in List I and another in List III. Supposing now, this part of the article dealing with preventive detention was dropped. What would be the effect of it ? The effect of it would be that the Provincial Legislatures as well as the Central Legislature would be at complete liberty to make any kind of law with preventive detention, because if this Constitution does not by a specific article put a limitation upon the exercise of making any law which we have now given both to the Centre and to the Provinces, there would be no liberty left, and Parliament and the Legislatures of the States would be at complete liberty to make any kind of law dealing with preventive detention. Do the lawyer Members of the House want that sort of liberty to be given to the Legislatures of the States and Parliament ? My submission is that if their attitude was as expressed today, that we ought to have no such provision, then what they ought to have done was to have objected to those entries in List I and List III. We are trying to rescue the thing. We have given power to the Legislatures of the State and Parliament to make laws regarding preventive detention. What I am trying to do is to curtail that power and put a limitation upon it. I am not doing worse. You have done worse.

1021DRAFT CONSTITUTION Coming to the specific provision contained in the second part, I will first...* Pandit Thakur Das Bhargava : Who made those Lists ? The Honourable Dr. B. R. Ambedkar : I made them : you passed them ! I had these limitations in mind. Now I come to the proviso to clause 3(b). Shri Mahavir Tyagi : Will you help laymen to understand as to why you have not provided for the revision by the Advisory Board of the cases under clause (4) ? The Honourable Dr. B. R. Ambedkar : I cannot explain to him the legal points in this House. This House is not a law class and I cannot indulge in that kind of explanation now. The honourable Member is my friend; if he does not understand he can come and ask me afterwards. Now I will deal with the proviso which is subject to two sorts of criticisms. One criticism is this : that in the case of persons who are being arrested and detained under the ordinary law as distinct from the law dealing with preventive detention, we have made provision in clause (1) of article 15A that the accused person shall be informed of the grounds of his arrest. I said we do not make any such provision in the case of a person who is detained under preventive detention. I think that is a legitimate criticism. I am prepared to redress the position, because I find that, even under the existing laws made by the various provincial governments relating to preventive detention, they have made provision for the information of the accused regarding the grounds on which he has been detained. I personally do not see any reason why when provinces who are anxious to have preventive detention laws have this provision, the Constitution should not embody it. Therefore I am prepared to incorporate the following clause after clause (3) in article 15A : “(3a) Where an order is made in respect of any person under sub-clause (b) of clause (3) of this article, the authority making an order shall....” Babu Ramnarayan Singh : Sir, Dr. Ambedkar says that provinces want the inclusion of this clause... Mr. President : He has not said anything of that sort. What he has said is that several of the Acts which have been passed by the provinces for preventive detention contain certain provisions. He wants to incorporate a similar provision in this article. Babu Ramnarayan Singh : I wanted to know whether we are passing legislation at the dictates of the provinces. Mr. President : Nothing of the sort. *Dots indicate interruption.

1022 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The Honourable Dr. B. R. Ambedkar : I find that Mr. Ramnarayan Singh is somewhat disaffected with the provincial government to which he belongs. As I was saying, I think this provision ought to do : After clause (3) of article 15A, the following clause be inserted : “(3a) Where an order is made in respect of any person under sub-clause (b) of clause (3) of this article the authority making an order shall as soon as may be communicate to him the grounds on which the order has been passed and afford him the earliest opportunity of making a representation against the order. (b) Nothing in clause (3a) of this article, shall require the authority making any order under sub-clause (b) of clause (3) of this article to disclose the facts which that authority considers to be against the public interest to disclose.” These are the exact words in some of the Acts of the provinces and I do not see any reason why they should not be introduced here, so that this ground of criticism that we arc detaining a person merely because his case comes under preventive detention, without even informing him of the grounds on which we detain him. Now that is met by the amendment which I have proposed. The other question is...* The Honourable Shri K. Santhanam (Madras : General) : Is it in addition to the provision in clause (1) ? There is already a provision that no person shall be detained in custody without being informed. The Honourable Dr. B. R. Ambedkar : It does not deal with persons arrested for preventive detention. The Honourable Shri K. Santhanam : Does it not include a person who is arrested for preventive purposes ? I thought clause (1) includes every kind of detention. The Honourable Dr. B. R. Ambedkar : No. That is not our understanding anyhow. The cases are divided into two categories. Shri Mahavir Tyagi : He is a lawyer. The Honourable Dr. B. R. Ambedkar : That is in a court of law, not here. Mr. President : He is not a lawyer. The Honourable Dr. B. R. Ambedkar : I think it would be much better to say : Nothing in clauses (1) and (2) shall apply to clause (3). That is the intention. So I have met that part of their criticism. Now I come to the question of three months’ detention without enquiry or trial. Some Members have said that it should not be more than 15 days and others have suggested some other period and so on. I would like to tell the House why exactly we thought that three months was a tolerable *Dots indicate interruption.