Vol. 13 · pages 726–730

693DRAFT CONSTITUTION ARTICLE 238 *The Honourable Dr. B. R. Ambedkar : Sir, I formally move No. 2807 : “That in the proviso to article 238, for the words ‘under the terms of any agreement entered into in that behalf by such State with the Union’ the words ‘under the terms of any instrument or agreement entered into in that behalf by such State with the Government of the Dominion of India or the Government of India or of any law made by Parliament under article 2 of this Constitution’ be substituted.” I move further: “(1) That with reference to amendment No. 2807 of the List of Amendments, in clause (2) of article 238, after the words ‘bylaw ‘the words ‘made by Parliament’ be added. (2) That with reference to amendment No. 2807 of the List of Amendments, the proviso to article 238 be deleted.” The amendment was adopted. Article 238, as amended, was added to the Constitution. ARTICLE 239 †The Honourable Dr. B. R. Ambedkar : Sir, I move : “That in article 239, before the word ‘State ‘where it occurs for the second tune in line 29, the word ‘other’ be inserted.” The amendment was adopted. Article 239, as amended, was added to the Constitution. ARTICLE 240 ‡The Honourable Dr. B. R. Ambedkar : Sir, I move : “That for clause (1) of article 240, the following new clauses be substituted :— ‘(I) If the President receives such a complaint as aforesaid, he shall, unless he is of opinion that the isues involved are not sufficient importance to warrant such action, appoint a Commission to investigate in accordance with such instructions as he may give to them, and to report to him on the matters to which the complaint relates, or that of those matters as he may refer to them. (1a) The Commission shall consist of such persons having special knowledge and experience in irrigation, engineering, administration, finance or law as the President may deem necessary for the purposes of such investigation’.” [The amendment was adopted Article 240 as amended, was added to the Constitution.] ***** *CAD, Vol. VIII, 13th June 1949, p. 817. † Ibid., p. 817. ‡ Ibid., p. 818.

694 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES ARTICLE 112-B *The Honourable Dr. B. R. Ambedkar : Sir, I move : “That for amendment No.23, the following amendment he substituted :— “That after the new article 112-A, the following article he inserted :— Conference on the Supreme Count of Appellate jurisdiction with regard to criminal matters. 112-13 Parliament may by law confer on the Supreme Court power to entertain and hear appeals hum any judgment, final order or sentence of a High Court in the territory of India in the exercise of its criminal jurisdiction subject to such conditions and limitations as may be speed led in such law. ***** ARTICLE 111-A †Mr. President: Dr. Ambedkar will now move his amendment. The Honourable Dr. B. R. Ambedkar (Bombay : General) : Sir, I move : “That with reference to amendments Nos. 23 and 24 of List I (Fifth Week) for the new article 111-A, the following be substituted :— Appellate jurisdiction of Supreme Court with regard to criminal matters. 111-A (1) The Supreme Court shall have power to entertain and hear anneals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India— (a) if the High Court has on appeal reversed the order of acquital of an accused person and sentenced him to death; or (b) if the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or (c) if the High Court certifies that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub-clause (c) of this clause shall lie subject to such rules as may from time to time he made by the Supreme Court and to such conditions as the High Court may establish or require. (2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.” I do not wish to say anything at this stage but I shall reserve my remarks towards the end after hearing the course of debate on my new amendment. ***** ‡The Honourable Dr. B. R. Ambedkar : Mr. President, Sir, I rise to make just a few observations in order to give the House the correct idea of what is proposed to be done by the introduction of this new article 111-A. The first tiling which I should make clear is that it is not the intention of article 111-A to confer general criminal appellate jurisdiction upon the Supreme Court. The jurisdiction sought to be conferred is of a very limited character. *CAD, Vol. VIII, 13th June 1949, p. 824. † Ibid., 14th June 1949, p. 840 . ‡ Ibid., 14th .Tune 1949, pp. 853-57.

695DRAFT CONSTITUTION In showing the necessity why it is desirable in my judgment to confer appellate criminal jurisdiction upon (be Supreme Court as specified in the sub-clauses of article 111-A, I propose to separate sub-clauses (a) and (b) from sub-clause (c) because they stand on a different footing. As the House knows, (a) and (b) confine the appellate jurisdiction of the Supreme Court only to those cases where there has been a sentence of death : in no other case the Supreme Court is to have criminal appellate jurisdiction. That is the first point that bas to be borne in mind. I shall state briefly why it is necessary to confer upon the Supreme Court this limited appellate jurisdiction in cases where there bas been a sentence of death passed upon an accused person. The House should note that so far as our criminal jurisprudence, as it is enshrined in the Criminal Procedure Code, is concerned, there is one general principle which has been accepted without question and that principle is this that where a man has been condemned to death he should have at least one right of appeal, if not more. Mr. President : May I just point out one thing? Your amendment does not cover the case of a person whose sentence has been enhanced to a sentence of death. The Honourable Dr. B. R. Ambedkar : We do not propose to give such a thing. That is the point. With regard to enhancement of the sentence we do not propose to confer criminal jurisdiction of an appellate nature on the Supreme Court. We do it with open eyes and I think everybody ought to know it. That is not the intention. It must be generally accepted that where a man has been condemned lo death he should have at least one right of appeal. Starting with that premise and examining the provisions of the Criminal Procedure Code it will be found that there are three cases where this principle is, so to say, violated or not carried into effect. The first case is the case where, for instance, the District Judge acting as a Sessions Judge acquits an accused person; the Government which has been invested with a right of appeal against the acquittal appeals lo the High Court, and the High Court i n its appellate jurisdiction condemns the man to death. In a case like this no appeal is provided. That is one exception to the premise. The second case is the case of the Sessions Judge in the High Courts of Bombay, Calcutta and Madras, where sitting in a Sessions Court he acquits a criminal; then the government takes an appeal to the High Court

696 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES on its appellate side and the appellate side on hearing the appeal condemns the man to death. There again there is no appeal. Then there is the third case, which is worse, namely, that under section 526 of the Criminal Procedure Code a High Court, in exercising of the powers conferred upon it by that section, withdraws a case to itself and passes a sentence of death. There again there is no appeal. Mr. Naziruddin Ahmad : There is a right of appeal in such cases. The Honourable Dr. B. R. Ambedkar : No. No appeal from the High Court. Mr. Naziruddin Ahmad : Under section 411-A of the Criminal Procedure Code. The Honourable Dr. B. R. Ambedkar : Section 411-A applies only to the High Courts of Calcutta, Bombay and Madras. Even there it does not apply to all cases or to cases where such High Courts have acted under section 506. Section 411-A is confined to appeals from the judgment of High Courts sitting on the original side, in sessions. Therefore, Sir………* Pandit Lakshmi Kanta Maitra : Section 526 generally refers to transfer of cases. The Honourable Dr. B. R. Ambedkar : When a case is transferred and tried by the High Court, there is no right of appeal. It has extraordinary jurisdiction. Therefore these are three flagrant cases where the general principles that a man who has been condemned to death ought to have at least one appeal is not observed. I think, having regard to the enlightened conscience of the modern world and of the Indian people, such a provision ought to be made. The object of sub-clauses (a) and (b) therefore is to provide a right of appeal to a person who has been acquitted in the first instance and has been condemned to death finally by the High Court. I do not think that on grounds of conscience or of humanity there would be anybody who would raise objection to the provisions contained in sub-clauses (a) and (b). Now I come to sub-clause (c). With regard to this the House will remember that it has today an operative force under the Criminal Procedure Code, section 411, so far as the High Courts of Calcutta, Madras and Bombay are concerned. This right of appeal to the Privy Council on a certificate from the High Court that it is a lit case was conferred by the Legislative Assembly in the year 1943, and very deliberately. We have therefore before us two questions with regard to the *Dots indicate interruption.

697DRAFT CONSTITUTION provision contained in section 411 of the criminal Procedure Code. There are two courses open to this House : either to take away this provision altogether or to extend this provision to all the High Courts. It seems to me that if you take away the provisions contained in section 411 which permit an appeal on a certificate from the High Court, you will be deliberately taking away an existing right which has been exercised and enjoyed by people, at any rate, in three different provinces. That seems to me an unnatural proceeding—to take away a judicial right which has already become, so to say, a vested right. The only alternative course therefore is to enlarge the provisions in such a manner that it will apply to all the High Courts. And the course that has been adopted in my amendment is the second course, namely, to extend it to all the High Courts. My Friends who are agitated that this might open the flood-gates of criminal appeals to the Supreme Courts have, I think, forgotten two important considerations. One important consideration is that the power of hearing appeals which is proposed to be conferred on the Supreme Court under sub-clauses (a) and (b) of clause (1) of the new article may vanish any moment that the legislature abolishes the death penalty. There will be no such necessity left for appeals to the Supreme Court if the legislature, thinking of what is being said in other parts of the world with regard to death penalty, and taking into consideration the traditions of this country, abolishes the death penalty; in that case sub-clauses (a) and (b) would ultimately fall into desuetude and the work of the Supreme Court so far as criminal side is concerned will diminish if not vanish. With regard to sub-clause (c) it will be noticed that it has been confined in very rigid limits by the proviso which goes along with it, namely “Provided that an appeal under sub-clause (c) of this clause shall lie subject to such rules as may from time to time be made by the Supreme Court and to such conditions as the High Court may establish or require.” Therefore, the certificate is not going to be an open process available merely for the asking. It will be subject at both ends to the conditions and limitations laid down by the High Court and the rules made by the Supreme Court. Therefore it will be realised that sub-clause (c) is a very rigid provision. It is not flexible and not as wide as people may think. Pandit Lakshmi Kanta Maitra : Modified by the proviso.