Vol. 13 · pages 1156–1160

The Honourable Dr. B. R. Ambedkar : It is quite clear. Section 2 of the Indian Penal Code says : “every person”. “Every person” means High or low, armed or unarmed. Mr. President : Mr. T. T. Krishnamachari, would you like to say anything after this ? Shri T. T. Krishnamachari : No, Sir. Mr. President : I shall put the amendments to vote. [Amendment was negatived.] I shall put article 112 as proposed in amendment No. 421. The question is : “That with reference to amendment No. 364 of List XV (Second Week), for article 112, the following article be substituted :— ‘112. (1) The Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (2) Nothing in clause (1) of this article shall apply to any judgement, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.’ ” The motion was adopted. Article 112, as amended, was added to the Constitution. ***** *Mr. President : Now we are at the fag end of the clauses and over four or five clauses we need not quarrel. The Honourable Shri K. Santhanam : But some of the amendments tabled are matters of substance which, I think, will have to be debated at length. I leave it to you, Sir, but so far as this is concerned I think the words “made by Parliament” are absolutely essential to make the meaning precise and clear. The Honourable Dr. B. R. Ambedkar (Bombay : general) : Sir, the amendment moved by my Friend Mr. Santhanam is quite unnecessary. It has been brought in by him because he has forgotten to take account of the provisions contained in article 60. Article 60 says that the executive power of the Union shall extend to all matters with respect to which Parliament has power to make laws, provided that it shall not so extend, unless the Parliament, law so provides, to matters with respect to which the Legislature of the States has also power to make laws that is, matters in the concurrent List. Therefore, the amendment moved by my Friend Mr. Krishnamachari in sub-clause (b) of clause (1) of article 59 cannot go beyond the power of Parliament to make laws. Special leave to appeal by the Supreme Court. *CAD, Vol. X, 17th October 1949, p. 390. 1123DRAFT CONSTITUTION

The Honourable Shri K. Santhanam : The article does not limit it only to those laws; it can also extend further. The Honourable Dr. B. R. Ambedkar : No, it cannot extend further. The necessity for bringing an amendment in sub-clause (b) is this; that the executive power of the centre extends not only to matters enumerated in List I, but may also extend to matters enumerated in List III, and the position of the Drafting Committee is this, that whenever a law is made by Parliament, in respect of any matter contained in List III if the law confers executive power on the Centre, the power of the President to grant reprieve must extend to that law. Therefore, these words are necessary. Mr. Santhanam’s amendment is absolutely unnecessary and out of place because article 60 covers the point. (Amendment of Mr. Santhanam was negatived.) ***** *The Honourable Dr. B. R. Ambedkar : The clause moved by my Friend Mr. Krishnamachari is of old standing. It occurs in the Instrument of Instructions issued to the Governor of the provinces under the Government of India Act, 1935. Paragraph 17 of the Instrument of Instructions says : “Without prejudice to the generality of his powers as to reservation of Bills, our Government shall not assent in our name to, but shall reserve for the consideration of our Governor-General any Bill or any of the clauses herein specified, i.e. (b) any Bill which in his opinion would, if it became law so derogate from the powers of the High Court as to endanger the position that that Court is, by the Act, designed to fulfil.” This clause is the old Instrument of Instructions the Drafting Committee had bodily copied in the Fourth Schedule which they had proposed to introduce and it will be found in Vol. II of the amendments at pages 368-369. In view of the fact that the House on my recommendation came to the conclusion that for the reasons which I then stated it was unneccessary to have any such schedule containing instructions to the Governors of the States in Part I, it is felt by the Drafting Committee that, at any rate, that particular part of the proposed Instrument of Instructions, paragraph 17, should be incorporated in the Constitution itself. Now, Sir, the reasons for doing this are these : The High Courts are placed under the Centre as well as the Provinces. So far as the organisation and the territorial jurisdiction of the High Court are concerned, they are undoubtedly under the Centre and the Provinces have no power either to alter the organization of the High Court or the *CAD, Vol. X, 17th October 1949, pp. 393-394. 1124 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

territorial jurisdiction of the High Court. But with regard to pecuniary jurisdiction and the jurisdiction with regard to any matters that are mentioned in List II, the power rests under the new Constitution with the States. It is perfectly possible, for instance, for a State Legislative to pass a Bill to reduce the pecuniary jurisdiction of the High Court by raising the value of the suit that may be entertained by the High Court. That would be one way whereby the State would be in a position to diminish the authority of the High Court. Secondly, in enacting any measure under any of the entries contained in List II, for instance, debt concellation or any such matter, it would be open for the Provinces to say that the decree made by any such Court or Board shall be final and conclusive, and that the High Court should have no jurisdiction in that matter at all. It seems to me that any such Act would amount to a derogation from the authority of the High Court which this Constitution intends to confer upon it. Therefore, it is felt necessary that before such law becomes final, the President should have the opportunity to examine whether such a law should be permitted to take effect or whether such a law was so much in derogation of the authority of the High Court that the High Court merely remained a shell without any life in it. I, therefore, submit that in view of the fact that the High Court is such an important institution intended by the Constitution to adjudicate between the Legislature and the Executive and between citizen and citizen such a power given to the President is a very necessary power to maintain an important institution which has been created by the Constitution. That is the purpose for which this amendment is being introduced. Shri H. V. Kamath : What about my suggestion to simplify the language? The Honourable Dr. B. R. Ambedkar : I cannot at this stage consider any drafting amendments. Shri H. V. Kamath : All right : Do it later on. Mr. President : I will now put it to vote. (Amendment of Mr. T. T. Krishmachari) The question is : “That to article 175 the following proviso be added : Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President any which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by this Constitution designed to fill.’ ” The amendment was adopted. 1125DRAFT CONSTITUTION

***** *Mr. President : Would you like to reply, Dr. Ambedkar ? The Honourable Dr. B. R. Ambedkar : Sir, this article is to be read along with article 8. Article 8 says— “All laws in force immediately before the commencement of this Constitution in the teritory of India, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency be void.” And all that this article says is this, that all laws which relate to libels, slander, defamation or any other matter which offends against decency or morality or undermines the security of the State shall not be affected by article 8. That is to say, they shall continue to operate. If the words “contempt of court” were not there, then to any law relating to contempt of court article 8 would apply, and it would stand abrogated. It is prevent that kind of situation that the words “contempt of court” are introduced, and there is, therefore, no difficulty in this amendment being accepted. Now with regard to the point made by my Friend Mr. Santhanam, it is quite true that so far as fundamental rights are concerned, the word “State” is used in a double sense, including the Centre as well as the Provinces. But I think he will bear in mind that notwithstanding this fact, a State may make a law as well as the Centre may make a law; some of the heads mentioned here such as libel, slander, defamation, security of State, etc., are matters placed in the Concurrent List so that if there was any very great variation among the laws made, relating to these subjects, it will be open to the Centre to enter upon the field and introduce such unformity as the Centre thinks it necessary for this purpose. The Honourable Shri K. Santhanam : But contempt of court is not included in the Concurrent List or any other list. The Honourable Dr. B. R. Ambedkar : Well, that may be brought in. Mr. President : Then I will put these two amendments to vote. As a matter of fact. Pandit Thakur Das Bhargavas’s amendment is not an amendment to Mr. Krishnamachari’s amendment, it is independent altogether I will put them separately. First I put Mr. Krishnamachari’s amendment to vote. The question as : “That in clause (2) of article 13, after the word ‘defamation’ the words ‘contempt of court’, be inserted” *CAD, Vol. X, 17th October 1949, p. 402. 1126 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

The amendment was adopted. Pandit Thakur Das Bhargava’s amendment was negatived. ***** *Mr. President : Then we take up the new article 302AAA, i.e. amendment No. 450, Mr. Santhanam has made a suggestion that in order to complete the amendment which has just been passed, “Contempt of Court” must be included in the Concurrent List, and I think it is consequential and we had better take that thing. The Honourable Dr. B. R. Ambedkar : I will move an amendment straightaway, Sir, I move : “That after entry 15 in the Concurrent List, the following entry be added : “15A. Contempt of Court” Mr. President : I do not think there can be any objection to that. Mr. Naziruddin Ahmed : There may be many more such things. Mr. President : May be, but they will come up in time. So, I will put this to vote. The above amendment was adopted. Entry 15A was added to the Concurrent List. NEW ARTICLE 302AAA ***** †The Honourable Dr. B. R. Ambedkar : Sir, I think my Friend Mr. Sidhva has entirely misunderstood the position. If he will refer to List II, in Schedule Seven, items 30 and 35 which relate to the matters covered by the amendment moved by my Friend Shri T. T. Krishnamachari, he will see that the power of legislation given to the Centre under items 30 and 35 is of a very limited character. The power given under item 30 is for the purpose of regulation and organisation of air traffic. The power given under 35 is for the purpose of delimitation of the Constitution and the powers of port authorities. He will very readily see that, so far as the territory covered by aerodromes or air ports and ports is concerned, it is put of the territory of the province and concequently any law made by the State is applicable to the area covered by the aerodrome or the port. These entries 30 and 35 do not give the Centre power to legislate for all matters which lie within the purview of the Central Government under the entries. The powers are limited. Therefore the proposal in this article is this : that while it retains areas covered by the aerodromes and by the ports *CAD, Vol. X, 17th October 1949, p. 403. †Ibid., pp. 405-406. 1127DRAFT CONSTITUTION