Vol. 13 · pages 671–675

638 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES questions of constitutional law arise, and cases where no such question arises. Appeals where constitutional points arise are provided for in article 110. Questions where Constitutional law are not involved are provided for in article 111. The reason why this separation is made between the two sorts of appeals is also probably not realised by my Friend Mr. Naziruddin Ahmed. I should therefore like to make that point clear. There is going to come an amendment to article 121 which deals with the rules to be made by the Supreme Court. I have tabled an amendment to clause (2) of article 121 which says that wherever an appeal comes before the Supreme Court and it involves questions of Constitutional law, the minimum number “of judges, which would sit to hear such a case shall be five, while in other cases of appeals where no question of Constitutional law arises, we have left the matter to the Supreme Court to constitute the Bench and define the number of judges who would be required to sit on it by rules made thereunder. Now that is an important distinction, namely, that a Constitutional matter coming before the Supreme Court will be decided by a number of judges not less than five, while oilier cases of appeals may be decided by such number of judges as may be prescribed by rule. My friend therefore will understand that the existence of the words ‘as to the interpretation of this Constitution’ does not in any way debar appeals other than those in which Constitutional law is involved, and he will also understand why we propose to put these two types of appeals in two separate articles, the number of judges being different in the two cases. Now I come to the other point which has been debated at great length, namely, whether the Supreme Court should have criminal jurisdiction or not. As I said, so far as article 110 is concerned and the amendment moved by my Friend Mr. Naziruddin Ahmad is concerned, all this debate is absolutely irrelevant and beside the point and really ought not to influence our decision so far as article 110 is concerned. But in as much as a great deal of debate has taken place, I would like to say a few words. Members will find that there is provision in article 110 for a criminal matter coming before the Supreme Court if that matter involves a question of Constitutional law. Therefore that is one of the ways by which criminal matters may come up and the criminal matters that may come up under article 110 may be very small matters. Again, there is article 112 where the jurisdiction of the Privy Council

639DRAFT CONSTITUTION has been vested in the Supreme Court. For the moment I would like to draw the attention of honourable Members to the words ‘decree or final order in any case or matter whether civil or criminal’ so that the Supreme Court may, by special leave, draw to itself even a criminal matter under the provisions of article 112. I have noticed that there is considerable feeling among criminal lawyers that there ought to be a provision………* Pandit Lakshmi Kanta Maitra : Practising criminal law. The Honourable Dr. B. R. Ambedkar : I am sorry, ‘practising criminal law’, that just as article 111 confers upon the Supreme Court powers of hearing civil appeals, civil only, there ought to be a conferment of power upon the Supreme Court to hear criminal appeals, if not all appeals, at least appeals of a limited character such as involving death sentences. Now, I do not want to say that there is no force in the argument that has been used in support of this plea that the Supreme Court should have criminal jurisdiction but the question is how is it to be done ? Should we do it by a specific clause in the Constitution itself that in the following matter there shall be right to appeal to the Supreme Court, or should we permit Parliament to confer criminal jurisdiction of an appellate sort upon the Supreme Court ? I am of the opinion for the moment—I do not wish to dogmatise nor do I wish to say anything positive at this stage; I have an open mind although, if I may say so, it is not an empty mind—that it might be enough at this stage to confer upon Parliament the power to vest the Supreme Court with jurisdiction in matters of criminal appeals. Parliament may then, after due consideration, after investigation, after finding out how much work there will be for the Supreme Court if it is conferred jurisdiction in criminal matters and how much work it will be possible for the Supreme Court to handle, having regard to the number of judges that the finances of this country could provide to cope with that work—I think it would be much better to leave it to Parliament because this is a matter which would certainly require some kind of statistical investigation. My other view is that rather than have a provision for conferring appellate power upon the Supreme Court to whom appeals in cases of death sentence can made, I would much rather support the abolition of the death sentence, itself. ( Hear, hear.) That, I think, is the proper course to follow, so that it will end this controversy. After *Dots indicate interruption.

640 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES all, this country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that, having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether. *Pandit Lakshmi Kanta Maitra : All the criminal courts also. The Honourable Dr. B. R. Ambedkar : I think we ought to confine ourselves to the amendment moved to article 110 and the amendments moved by my Friend Mr. Naziruddin Ahmed. ***** [Following amendments were adopted.] (1) “That in clause (1) of article 110. for the word ‘Stale’ the words ‘the territory of India’ be substituted.” (2) “That in clause (3) of article 110. for the words ‘not only on the ground that any such question as aforesaid has been wrongly decided, but also,’ the words ‘on the ground that any such question as aforesaid has been wrongly decided and with the leave of the Supreme Court’ be substituted.” [Article 110, as amended, was added to the Constitution .] ARTICLE 111 ***** †The Honourable Dr. B. R. Ambedkar : Sir, I move : “That with reference to amendments Nos. 1916 to 1919 of the List of Amendments, in sub-clause (a) of clause (1) of article 111, utter the words ‘twenty thousand rupees’, the words ‘or such other sum as may be specified hi this behalf by Parliament by law,’ be inserted.” ***** The Honourable Dr. B. R. Ambedkar : Sir, I beg to move : “That to clause (1) of article 111 the following proviso be added :— “Provided that no appeal shall lie to the Supreme Court from the judgment, decree or order of one Judge of a High Court or of one Judge of a Division Court thereof, or of two or more Judges of a High Court, or of a Division Court constituted by two or more Judges of a High Court, where such Judges are equally divided in opinion and do not amount in number to a majority of the whole of the Judges of the High Court at the time being.’” ***** ‡The Honourable Dr. B. R. Ambedkar (Bombay ; General) : Sir, I move : “That in clause (2) of article 111, for the words ‘the case involves a substantial question of law as to the interpretation of this Constitution which *CAD, Vol. VIII, 2nd June 1949, p. 615. †Ibid., 3rd Tune 1949, p. 617. ‡Ibid., 6th June 1949, p. 620.

641DRAFT CONSTITUTION has been wrongly decided’, the words ‘a substantial question of law as to the interpretation of the Constitution has been wrongly decided’ be substituted.” ***** *The Honourable Dr. B. R. Ambedkar : Sir, I move: “That with reference to amendments Nos. 1916 to 1919 of the List of Amendments, in sub-clause (a) of clause (1) of article 111, after the words ‘twenty thousand rupees’ the words ‘or such other sum as may be specified in this behalf by Parliament by law’ be inserted.” ***** †The Honourable Dr. B. R. Ambedkar : Sir, I would begin by reminding the House as to exactly the point which the House is required to consider and decide upon. The point is involved between two amendments : one is the amendment moved by my Friend Prof. Shibban Lai Saksena, which is in a sense an exudation of amendment 1911 and my own amendment, which is amendment No. 25 in List No. 1 of the Fourth Week. Before I actually deal with the point that is raised by these two amendments, I should like to make one or two general observations. The first observation that I propose to make is this. Article 111 is an exact reproduction of sections 109 and 110 of the Civil Procedure Code. There is, except for the amendments which I am suggesting, no difference whatsoever between article 111 and the two sections in the Civil Procedure Code. The House will therefore, remember that so far as article 111 is concerned, it does not in any material or radical sense alter the position with regard to appeals from the High Court. The position is exactly as it is stated in the two sections of the Civil Procedure Code. The second observation that I would like to make is this. Sections 109 and 110 of the Civil Procedure Code are again a reproduction of the powers conferred by paragraph 39 of the Letters Patent by which the different High Courts in the Presidency Towns were constituted by the King. There again, Sections 109 and 110 are a mere reproduction of what is contained in paragraph 39. The third point that I should like to make is this : that these Letters Patent were instituted or issued in the year 1862. These Letters Patent also contain a power for the Legislature to alter the powers given by the Letters Patent. But although this power existed right from the very *CAD, Vol. VIII, 6th June 1949, p. 631. †Ibid., pp. 631-32.

642 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES beginning when the Letters Patent were issued in the year 1865, the Central Legislature, or the Provincial Legislatures, have not thought fit in any way to alter the powers of appeal from the decree, final order or judgment of the High Court. Therfore, the House will realize that these sections which deal with the right of appeal from the final order, decree and judgment of the High court have history extending over practically 75 to 80 years. They have remained absolutely undisturbed. Consequently, in my judgment, it would require a very powerful argument in support of a plea that we should now, white enacting a provision for the constitution of the Supreme Court, disturb a position which has stood the test of lime for such a long period. It seems to me that not very long ago, this House sitting in another capacity as a Legislative Assembly, had been insisting that these powers which under the Government of India Act were exercised by the Privy Council, should forthwith, immediately, without any kind of dimunition or denudation be conferred upon the Federal Court. It therefore seems to me somewhat odd that when we have constituted a Supreme Court, which is to take the place of the Federal Court, and when we have an opportunity of transferring powers of the Privy Council to the Supreme Court, a position should have been taken that these provisions should not be reproduced in the form in which they exist today. As I say, that seems to me somewhat odd. Therefore, my first point is this that there is no substantial, no material, change at all. We are merely reproducing the position as between the High Court and the Privy Council and establishing them as between the High Court and the Supreme Court. Now, Sir, I will come to the exact amendments of which I made mention in the opening of my speech, namely, Prof. Shibban Lai Saksena’s amendment and my amendment No. 25. If my amendment went through, the result would be this : that (he Supreme Court would continue to be a Court of Appeal and Parliament would not be able to reduce its position as a Court of Appeal, although it may have the power to reduce the number of appeals, or the nature of appeals that may go to the Supreme Court. In any case, sub-clause (c) of article 111 would remain intact and beyond the power of Parliament. My view is that although we may leave it to Parliament to decide the monetary value of cases which may go to the Privy Council, the last part of clause (I) of article 111, which is (c), ought to remain as it is and Parliament