Vol. 13 · pages 676–680

643DRAFT CONSTITUTION should not have power to dabble with it because it really is a matter not so much of law as a mailer of inherent jurisdiction. If the High Court, for reasons which are patent to any lawyer does certify that notwithstanding that the cause of the matter involved in any particular case does not fall within (a) and (b) by reason of the fact that the property qualification is less than what is prescribed there, nonetheless it is a cause or a matter which ought to go to the Supreme Court by reason of the fact that the point involved in it does not merely affect the particular litigants who appear before the Supreme Court, but as a matter which affects the generality of the public, I think it is a jurisdiction which ought to be inherent in the High Court itself and I therefore think that clause (c) should not be placed within the purview of the power of Parliament. On the other hand if the amendment moved by my friend Prof. Saksena were to go through, two things will happen. One thing that will happen has already been referred to by my friend Bakshi Tek Chand that Parliament may altogether take away the Appellate jurisdiction of the Supreme Court in civil matters. It seems to me that that would be a disastrous consequence. To establish a Supreme Court in this country and to allow any authority in Parliament to denude and to take away completely all the powers of appeal from the Supreme Court would be to my mind a very mendacious thing. We might ourselves take courage in our own hands and say that the Supreme Court shall not function as a court of appeal in civil matters and confine it to the same position which has been given to the Federal Court. The other thing will be that Parliament would be in a position to take away sub-clause (c) which, as I said, ought to remain there permanently, because it is reallly a matter of inherent jurisdiction. Therefore it seems to me that the plea that the appellate power of the Supreme Court should be made elastic is completely satisfied by my amendment No. 25, because under my amendment it would be open to Parliament to regulate the provisions contained in (a) and (b) without in any way taking away the appellate jurisdiction of the Supreme Court completely or without affecting the provisions contained in (c). Sir, I therefore oppose Mr. Saksena’s amendment. [In all 4 amendments were adopted, one was rejected. Article 111, as amended, was added to the Constitution]

644 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES ARTICLE 112 *The Honourable Dr. B. R. Ambedkar : I do not think there is anything for me to say. Mr. President : The question is : “That in article 112, the words ‘except the States for the time being specified, in Part III of the First Schedule, in cases where the provisions of article 110 or article 111 of this Constitution do not apply’ be deleted.” The amendment was adopted. Article 112, as amended, was added to the Constitution. NEW ARTICLE 112-A †Mr. President: There is notice of a new article to be moved by Dr. Ambedkar, amendment No. 191. The Honourable Dr. B. R. Ambedkar : Sir, I beg to move : “That with reference to amendment No. 1932 of the List of Amendments, after article 112, the following new article be inserted :— Review of judgments or order passed by the Supreme Court. ‘112-A Subject to the provisions of any law made by Parliament or any rule made under article 121 of this Constitution the Supreme Court shall have power to review any judgment pronounced or order passed by it.’” Sir, the draft Constitution, as it stands now,………………‡ Prof. Shibban Lal Saksena : On a point of order, Sir, amendment No. 1932 has not been moved………. Mr. President: That has not been moved : I am taking this as a fresh article. Shri T. T. Krishnamachari : May I mention, Sir, that amendment No. 1932 is exactly the same as amendment No. 1928 ? Actually, if amendment 1928 is moved, amendment 1932 cannot be moved. Mr. President : I have already said that I have taken it as a fresh article. The Honourable Dr. B. R. Ambedkar : The Draft Constitution contains no provision for review of its judgments. It was felt that that was a great lacuna and this new article proposes to confer that power upon the Supreme Court. The Honourable Shri K. Santhanam (Madras : General) : Sir, I am afraid that the drafting of this is not quite as happy as it should be For one tiling, I do not think it is right to put an article in the Constitution giving a power to the Supreme Court and say that that *CAD, Vol. VIII, 6th June 1949, p. 640. †Ibid., pp. 640-41. ‡Dots indicate interruption.

645DRAFT CONSTITUTION power shall be limited by rules made by the Supreme Court. I think it is bad law. Parliament has no right to interfere even with its ordinary power of review. Mr. President : This refers to its own decisions. The Honourable Shri K. Santhanam : I am coming to that. I think there is a greater reason why the Supreme Court should be left unfettered to review its own judgment. In these two respects, the tiling is rather defective. I would suggest to Dr. Ambedkar to see if it should go in this form or whether the form should not be reconsidered. The Honourable Dr. B. R. Ambedkar : I think my friend Mr. Santhanam is completely mistaken in the observations that he has made. First of all, we are not conferring any power to the Supreme Court to make any rules. That power is being delegated by article 121. If he refers to that article, he will see that it reads thus : “Subject to the provisions of any law made by Parliament, the Supreme Court may from tune to time with the approval of the President, make rules for regulating generally the practice and procedure of the Court including, etc., etc.” Therefore it is not correct to say that we are giving power to the Supreme Court. The power is with the Supreme Court and is to be exercised with the approval of President. Another tiling which has misled Mr. Santhanam is that he has not adverted to the fact that I proposed by amendment 42 in List I to add one more clause to article 121 which is (bb) and which deals with the rules to be made with regard to review. Therefore, having regard to these two circumstances, it is necessary that the review power of the Supreme Court must be made subject both to article 121 and also the amendment contained in No. 42. [Article 112-A was adopted and added to the Constitution.] ARTICLE 113 Mr. President : No. 113. Shri T. T. Krishnamachari : The house has expressly excluded reference to State in Part III of the First Schedule all along and therefore this article may not be necessary. You can formally put it to the House so that the House can negative it. The Honourable Dr. B. R. Ambedkar : That is so. [Article 113 was deleted from the Constitution.] *****

646 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES ARTICLE 114 Mr. President : Article 114. There is one amendment by Mr. Gupte. (The amendment was not moved.) “Does anyone wish to speak ? *The Honourable Dr. B. R. Ambedkar : My attention has been drawn by my friend Shri Alladi Krishnaswami Ayyar that the articles of this Draft Constitution dealing with powers of the Supreme Court do not expressly provide for appeals in income-tax cases. I wish to say that I am considering the matter and if on examination it is found that none of the articles could be used for the purpose of conferring such an authority upon the Supreme Court, I propose adding a special article dealing with that matter specifically. But this article may go in. [Article 114 was added to the Constitution.] ARTICLE 121 ***** †The Honourable Dr. B. R. Ambedkar : Sir, I move : “That for clause (3) of article 121, the following be substituted :- ‘(3) No judgment shall be delivered by the Supreme Court save in open court, and no report shall be made under article 110 of this Constitution save in accordance with an opinion also delivered in open court.’” Sir, I shall move also amendment No. 1966 : “That for clause (4) of article 121, the following be substituted :— ‘(4) No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the judges present at the hearing of the case hut nothing in this clause shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment or opinion. ’ ***** ‡The Honourable Dr. B. R. Ambedkar : Mr. President, I regret very much that I cannot accept the amendment moved by my Honourable Friend Mr. Lari. It seems to me that he has completely misunderstood what is involved in his amendment. The reason why it is necessary to make the rule-making power of the Supreme Court subject to the approval of the President is because the rules may, if they were left entirely to the Supreme Court, impose a considerable burden upon the revenues of the country. For instance, supposing a rule was made that a certain matter should be heard by two Judges. Thai may be a simple rule made by the Supreme Court. But, undoubtedly, it would involve a burden on public revenues. There *CAD, Vol. VIII, 6th June 1949, p. 542. † Ibid., p. 645. ‡Ibid., pp. 649-50.

647DRAFT CONSTITUTION are similar provisions in the rules, for instance, regarding the regulation of fees. It is again a matter of public revenue. It could not be left to the Supreme Court. Therefore, my submission is that the provisions contained in article 121 that the rules should be subject to the approval of the President is the proper procedure to follow. Because, a matter like this which imposes a burden upon the public revenues and which burden must be financed by the legislature and the Executive by the imposition of taxation could not be taken away out of the purview of the Executive. I may also point out that the provisions contained in article 121 are the same as the provisions contained in article 214 of the Government of India Act, 1935 relating to the Federal Court and article 224 relating to the High Courts. Therefore, there is really no departure from the position as it exists today. With regard to the comments made by my Honourable Friend, Mr. Santhanam relating to amendment No. 42 moved by Honourable Friend. Mr. T. T. Krishnamachari, I am afraid, I have not been able to grasp exactly the point that he was making. All that, therefore, I can say is this, that this matter willl be looked into by the Drafting Committee when it sits to revise the Constitution, and if any new phraseology is suggested, which is consistent with the provisions in the article which we have passed conferring power of review by the Supreme Court, no doubt it will be considered. There is one other point to which I would like to refer and that is amendment No. 43. In amendment No. 43, which has been moved by my Honourable Friend, Shri Alladi Krishnaswami Ayyar, and to winch I accord my wholehearted support, there is a proviso which says that if a question about the interpretation of the Constitution arises in a matter other than the one provided in article 110, the appeal shall be referred to a Bench of live judges and if the question is disposed of it will be referred back again to the original bench. In the proviso as enacted, a reference is made to article 111, but I quite see that if the House at a later stage decides to confer jurisdiction to entertain criminal appeals, this proviso will have to be extended so as to permit the Supreme Court to entertain an appeal of this sort even in a matter arising in a criminal case. I, therefore, submit that this proviso also will have to be extended in case the House follows the suggestion that has been made in various quarters that the Supreme Court should have criminal jurisdiction. [5 amendments including 2 of Dr. Ambedkar were adopted. One was negatived. Article 121 as amended was added to the Constitution.]