Vol. 13 · pages 471–475

The Honourable Dr. B. R. Ambedkar : Certainly. An emergency does not merely arise when war has taken place—the situation may very well be regarded as emergency when war is threatened. Consequently, if the wording of article 275 was compared with the amendment of Mr. Karimuddin, he will find that practically there is no difference in what article 275 permits the President to do and what he would be entitled to if the amendment of Mr. Karimuddin was accepted. I therefore submit, Sir, that there is no necessity for amendments Nos. 801 and 802. So far as I am concerned No. 801 is entirely against the principle which I have enunciated. I will take up the amendments of my friend Mr. Kamath, No. 787 read with No. 34 in List III, and the amendment of my friend Mr. Sarwate, No. 783 as amended by No. 43. My friend Mr. Kamath suggested that it was not necessary to particularize, if I understood him correctly, the various writs as the article at present does and that the matter should be left quite open for the Supreme Court to evolve such remedies as it may think proper in the circumstances of the case. I do not think Mr. Kamath has read this article very carefully. If he had read the article carefully, he would have observed that what has been done in the draft is to give general power as well as to propose particular remedies. The language of the article is very clear. “The right to move the Supreme Court by appropriate proceeding for the enforcement of the rights conferred by this Part is guaranteed. The Supreme Court shall have power to issue directions or orders in the nature of the writs of......................” These are quite general and wide terms. Shri H. V. Kamath : On a point of explanation. Sir. With the accepted amendment of my friend Mr. Baig, the clause will read thus : “The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus................... ” The Honourable Dr. B. R. Ambedkar : Yes, the words “directions and orders” are there. Shri H. V. Kamath : And “writs”. The Honourable Dr. B. R. Ambedkar : Yes. While the powers of the Supreme Court to issue orders and directions are there, the draft Constitution has thought it desirable to mention these particular writs. Now, the necessity for mentioning and making reference to these particular writs is quite obvious. These writs have 438 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

been in existence in Great Britain for a number of years. Their nature and the remedies that they provided are known to every lawyer and consequently we thought that as it is impossible even for a man who has a most fertile imagination to invent something new, it was hardly possible to improve upon the writs which have been in existence for probably thousands of years and which have given complete satisfaction to every Englishman with regard to the protection of his freedom. We therefore thought that a situation such as the one which existed in the English jurisprudence which contained these writs and which, if I may say so, have been found to be knave-proof and fool-proof, ought to be mentioned by their name in the Constitution without prejudice to the right of the Supreme Court to do justice in some other way if it felt it was desirable to do so. I, therefore, say that Mr. Kamath need have no ground of complaint on that account. My friend Mr. Sarwate said that while exercising the powers given under this article, the Court should have the freedom to enter into the facts of the case. I have no doubt about it that Mr. Sarwate has misunderstood the scope and nature of these writs. I therefore, think, that I need make no apology for explaining the nature of these writs. Anyone who knows anything about the English law will realise and understand that the writs which are referred to in the article fall into two categories. They are called in one sense “prerogative writs”, in the other case they are called “writs in action”. A writ of mandamus, a writ of prohibition, a writ of certiorari, can be used or applied for both ; it can be used as a prerogative writ or it may be applied for by a litigant in the course of a suit or proceedings. The importance of these writs which are given by this article lies in the fact that they are prerogative writs ; they can be sought for by an aggrieved party without bringing any proceedings or suit. Ordinarily you must first file a suit before you can get any kind of order from the Court, whether the order is of the nature of mandamus, prohibition or certiorari or anything of the kind. But here, so far as this article is concerned, without filing any proceedings you can straightaway go to the Court and apply for the writ. The object of the writ is really to grant what I may call interim relief. For instance, if a man is arrested, without filing a suit or a proceedings against the officer who arrests him, he can file a petition to the Court for setting him at liberty. It is not necessary for him to 439DRAFT CONSTITUTION

first file a suit or a proceeding against the officer. In a proceeding of this kind where the application is for a prerogative writ, all that the Court can do is to ascertain whether the arrest is in accordance with law. The Court at that stage will not enter into the question whether the law under which a person is arrested is a good law or a bad law, whether it conflicts with any of the provisions of the Constitution or whether it does not conflict. All that the Court can inquire in a habeas corpus proceedings is whether the arrest is lawful and will not enter into the question—at least that is the practice of the Court—of the merits of the law. When a person is actually arrested and his trial has commenced, it is in the course of those proceedings that the court would be entitled to go into the facts and to come to a decision whether a particular law under which a person is arrested is a good law or a bad law. Then the court will go into the question whether it conflicts with the provisions of the Constitution. Consequently, the amendment moved by my friend Shri V. S. Sarwate, if I may say so, is quite out of place. It is not here that such a provision could be made. If he refers to article 115, he will find that a provision for similar writs has been made there. But those are writs which could be issued in connection with questions of fact and law. They would certainly be investigated by the Courts. Now, Sir, I am very glad that the majority of those who spoke on this article have realised the importance and the significance of this article. If I was asked to name any particular article in this Constitution as the most important—an article without which this Constitution would be a nullity—I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance. There is however one thing which I find that the Members who spoke on this have not sufficiently realised. It is to this fact that I would advert before I take my seat. These writs to which reference is made in this article are in a sense not new. Habeas corpus exists in our Criminal Procedure Code. The writ of Mandamus finds a place in our law of Specific Relief and certain other writs which are referred to here are also mentined in our various laws. But there is this difference between the situation as it exists with regard to these writs and the situation as will now arise after the passing of this Constitution. The writs which exist now in our various laws are at the mercy of the legislature. Our 440 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES

Criminal Procedure Code which contains a provision with regard to habeas corpus can be amended by the existing legislature. Our Specific Relief Act also can be amended and the writ of habeas corpus and the right of mandamus can be taken away without any difficulty whatsoever by a legislature which happens to have a majority and that majority happens to be a single-minded majority. Hereafter it would not be possible for any legislature to take away the writs which are mentioned in this article. It is not that the Supreme Court is left to be invested with the power to issue these writs by a law to be made by the legislature at its sweet will. The Constitution has invested the Supreme Court with these rights and these writs could not be taken away unless and until the Constitution itself is amended by means left open to the Legislature. This in my judgment is one of the greatest safeguards that can be provided for the safety and security of the individual. We need not therefore have much apprehension that the freedoms which this Constitution has provided will be taken away by any legislature merely because it happens to have a majorty. Sir, there is one other observation which I would like to make. In the course of the debates that have taken place in this House both on the Directive Principles and on the Fundamental Rights. I have listened to speeches made by many members complaining that we have not enunciated a certain right or a certain policy in our Fundamental Rights or in our Directive Principles. References have been made to the Constitution of Russia and to the Constitutions of other countries where such declarations, as members have sought to introduce by means of amendments, have found a place. Sir, I think I might say without meaning any offence to anybody who has made himself responsible for these amendments that I prefer the British method of dealing with rights. The British method is a peculiar method a very real and a very sound method. British jurisprudence insists that there can be no right unless the Constitution provides a remedy for it. It is the remedy that make a right real. If there is no remedy, there is no right at all, and I am therefore not prepared to burden the Constitution with a number of pious declarations which may sound as glittering generalities but for which the Constitution makes no provision by way of a remedy. It is much better to be limited in the scope of our rights and to make them real by enunciating remedies than to have a lot of pilous wishes 441DRAFT CONSTITUTION

embodied in the Constitution. I am very glad that this House has seen that the remedies that we have provided constitute a fundamental part of this Constitution. Sir, with these words I commend this article to the House. Shri H. V. Kamath : On a point of clarification, Sir, as we are dealing with justiciable fundamental rights and the guaranteeing of these by the Supreme Court and in view of the fact that article 280 has also been invoked, will it not be more desirable to say that “the rights guaranteed by this article shall not be suspended wholly or in part” ........ or any similar set of words which the legal luminaries may choose ? The Honourable Dr. B. R. Ambedkar : “Shall not be suspended” covers both. It is unnecessary to specify it. The amendment was negatived. ***** Mr. Vice-President : The question is : Mr. Vice-President : Amendment No. 787 standing in the name of Mr. Kamath. Shri H. V. Kamath : In view of the remarks made by Dr. Ambedkar on this matter, I do not wish to press it. The amendment was, by the leave of the Assembly withdrawn. Mr. Vice-President: Then we come to amendment No. 789 standing in the name of Mr. Mahboob Ali Baig, but moved by Mr. Naziruddin Ahmad. The question is : “That in clause (2) of article 25, for the words “in the nature of the writs of the words ‘or writs, including writs in the nature of be substituted.” The amendment was adopted. Mr. Vice-President : Amendment No. 794 standing in the names of Dr. Ambedkar, Mr. Mahdava Rau and Mr. Saadulla. The question is : “That for existing clause (3) of article 25, the following clause be substituted : ‘(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2) of this article. Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) of this article’.” The amendment was adopted. Mr. Vice-President : Amendment No. 43 of List 1 standing in the name of Mr. Sarwate. 442 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES