Vol. 13 · pages 731–735

698 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The Honourable Dr. B. R. Ambedkar : Yes, as modified by the proviso. Now, I come to clause (2) of my amendment. There you have got the general power given to Parliament to enlarge the criminal jurisdiction of the Supreme Court beyond the three cases laid down in my amendment. There was a point of view that the three cases mentioned in clause (1) of my amendment ought to be enough and that there ought not to be a door kept open for Parliament for enlarging the criminal jurisdiction of the Supreme Court and that sub-clauses (a), (b) and (c) ought to be the final limit of criminal jurisdiction of the High Court. Well, the only answer I could give is this : It is difficult to imagine what circumstances may arise in future. I think it would be better to believe it if a man said that there would be no circumstances arising at all requiring Parliament to confer some kind of criminal appellate jurisdiction upon the Supreme Court. Supposing such a contingency did arise and if the provisions of clause (2) of my new article were not there, what would be the position ? The position would be that the Constitution would have to be amended by the procedure we are proposing to lay down in a subsequent part of this Constitution. The question therefore is this : should we made it as hard as that, that the Parliament should also not have the power unless the Constitution is amended, or should we leave the position flexible by enabling Parliament to enact such law leave the time, the circumstances and the choice to the Parliament of the day ? The Honourable Shri K. Santhanam (Madras : General) May I point out that under article 114 Parliament will still have the power to invest the Supreme Court with jurisdiction. The Honourble Dr. B. R. Ambedkar : I am afraid 114 does not deal with that matter. I have not got the copy with me; otherwise I would have replied. It is only with regard to the Union List. The Honourable Shri K. Santhanam : It deals with the jurisdiction of the Supreme Court in relation to mailers contained in the Union List. The Honourable Dr. B. R. Ambedkar : Yes, but supposing they want to enalrge the jurisdiction with regard, for instance, to the Concurrent List, List III, they cannot use article 114. Now, Sir, I come to some of the observations which were made by my Friend, Mr. Alladi Krishnaswami Ayyar. His observations related mostly to sub-clause (3). His first question was, what is the use of having sub-

699DRAFT CONSTITUTION clause (3) if the provisions of sub-clause (3) are hedged round by the provisions contained in the proviso which goes with it, viz., rules to be made by the Supreme Court. Pandit Lakshmi Kanta Maitra : It is sub-clause (c) and not sub-clause (3). The Honourable Dr. B. R. Ambedkar : I am sorry, it is subclause (c). His point is that there is no use of having sub-clause (c) hedged as it is by the provisions laid down in the proviso. The first thing I would like to remind my Friend, Mr. Alladi Krishnaswami Ayyar is this, that the proviso which is attached to sub-clause (c) is word for word the proviso attached to Section 411 of the Criminal Procedure Code and word for word the proviso contained in article 109 of the Civil Procedure Code. My Friend, Mr. Alladi Krishnaswami Ayyar, will remember that we have introduced in the appellate civil jurisdiction of the Supreme Court a clause which is absolutely word for word the same as sub-clause (c) of clause (1) of article 111-A. Now, I should have thought that if there was some residue of good in sub-clause (c) of clause (1) of article 111, hedged as it is with all the limitations as lo the rules to be made by the Supreme Court, as a man of commonsense, I should think, that there must be some residue of good left in sub-clause(c) here, notwithstanding the limitations contained in the proviso. My Friend also stated that there is a provision contained in article 112 which confers upon the Supreme Court the right lo admit an appeal by special leave, which article is not limited to civil appeal but is a general article which speaks of any cause or mailer. His point was that if that is there, why have sub-clause (c) ? My answer to him is again the same. If 112 defines the jurisdiction which the Supreme Court has over the High Courts, if that is there in civil mailers, why have sub-clause (c) in clause (1) of Article 111-A ? My answer to him is this : If we can have sub-clause (c) in civil mailers, notwithstanding the fact that we have 112, what objection can there be to have sub-clause (c) though we have 112 7 The point to be borne in mind is this that with regard to 112 we have left the Supreme Court with perfect freedom to lay down the conditions on which they will admit appeals. The law does not circumscribe their jurisdiction in the mailer. Shri Alladi Krishnaswami Ayyar : There is a condition in the case of civil appeals.

700 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES The Honourable Dr. B. R. Ambedkar : It is true. Now, I do not know how this article 112 will be interpreted by the Supreme Court. We have left it to them to interpret it. They may interpret it in the way in which the Privy Council has interpreted it or they may interpret it in any manner they choose ; either they may put a limited interpretation or they may put a wider interpretation. In case they put a limited interpretation, then I have no doubt about it that sub-clause (c) will have some value. I therefore submit, Sir, that my amendment is such that it meets the exigencies of the cases, satisfies the conscience of some people who object to people being hanged without having any right of appeal. I think it is so worded that the Supreme Court will not administratively or otherwise be overburdened with criminal appeals. I hope my Friends will now withdraw their amendments and accept mine. Shri C . Subramaniam (Madras : General) : On a point of clarification, as to the implication of the difference of language…… The Honourable Dr. B. R. Ambedkar : It is too late now. Mr. President: The Honourable Doctor has not shown in his reply why he makes a distinction between cases in which death sentence has been passed for the first time by the High Court in revision by way of enhancement of sentence and cases in which death sentence is passed in reversal of a judgment of acquittal. The Honourable Dr. B.R. Ambedkar : The case of an appeal against enhancement of sentence differs from a case of an appeal against acquittal in two respects. When the High Court enhances the sentence against an acused person it is not convicting him for the first time. The accused already stands convicted. In the case of an appeal against acquittal the High Court is reversing the finding of the trial court and convicting the accused. The second point of differenee is that in the case of enhancement the proceedings are converted into regular appeal so that in an enhancement proceedings the accused gets a statutory right of appeal under the Criminal Procedure Code to show that not only enhancement of sentence is not warranted but even his conviction is not justified by the facts of the case. In enhancement cases there is already one appeal. That being so, no further appeal is necessary. Thirdly, the amendment recognizes conviction or acquittal as the basis for a right of appeal to the Supreme Court. It does not recognize the nature of sentence or the type of punishment as the basis for a right of appeal.

701DRAFT CONSTITUTION Mr. President : Supposing in a ease the trial court holds that it is a case of grievous hurt, although it has resulted in death and passes a sentence of imprisonment and supposing there is an appeal to the High Court which by way of revision holds that it is a case of murder and not grievous hurt and gives a sentence of death. For the first time, the conviction is for murder by the High Court and the sentence of death is also passed for the first time. The Honourable Dr. B. R. Ambedkar : For the moment I am not prepared to go beyond the proposition as set out in my amendment. If Parliament later on thinks that such a case ought to be provided, it has perfect liberty under clause (2). Mr. President : It is a different matter and is for the House to decide. For myself, I have not been able to find the distinction. Shri H. V. Pataskar (Bombay : General) : I have moved amendment No. 25 to the original amendment No. 24 of the Honourable Dr. Ambedkar. Mr. President : There is no time for that. I think you are too late now. We cannot allow it at this stage. I have to put the various amendments now and those Honourable Members who think that their amendments are covered by the new amendment of Dr. Ambedkar, I hope, would withdraw them. [The amendment of Dr. Ambedkar was adopted. Other amendments were mostly withdrawn. One was rejected. Article 111-A as amended, was added to the Constitution.] ***** ARTICLE 164 *The Honourable Dr. B. R. Ambedkar : Sir, I move : “That in clause (1) of article 164 for the words ‘Save as provided’ the words ‘Save as otherwise provided’ be substituted.” [Without discussion Amendment was accepted. Article 164, as amended was added to the Constitution.] ARTICLE 167-A ***** †The Honourable Dr. B. R. Ambedkar : Sir, various points have been raised in the course of this detabe and I should like to deal with them one by one. If I heard my Friend Mr. Sidhva correctly he referred to article 165 dealing with the question of the taking of the oath or making the affirmation. The point about article 165 is this that if the provisions of *CAD, Vol. VIII, 14th June 1949, p. 860. †Ibid., pp. 865-67.

702 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES article 165 are not complied with it does not cause a vacancy—the seat does not become vacant. All that 165 says is that no person can take part in the voting or in the proceedings of the House unless lie has taken the oath. That is all. Therefore I do not see any difficulty about it at all. Shri R. K. Sidhva : Why should it go to the Election Commission ? The Honourable Dr, B. R. Ambedkar : I am coming to that. So far as 165 is concerned I think he will understand the fundamental distinction between that article and article 167. In the case of 165, there is no vacancy caused : there is only disability of taking part in the proceedings of the House. Now, I come to the main amendment moved by my Honourable Friend Mr. T. T. Krishnamachari and that is article 167-A. Except for one point to which I shall refer immediately I think the amendment is well founded. The reason why the decision is left with the Governor is because the general rule is that the determination of disqualification involving a vacancy of a seat is left with that particular authority which has got the power to call upon the constituency to elect a representative to fill that seal. Although it is not so expressly stated, it is well understood that the question whether a seat is vacant or not by reason of any disqualification such as those mentioned in article 167 must lie with that authority which has got the power to call upon the constitutency to elect a representative to fill that seat. There is no doubt about it that in the new Constitution it is the Governor who has been given the power lo call upon a constituency to choose a representative. That being so, the power to declare a seat vacant by reason of disqualification must as a consequence rest with the Governor. For this reason so far as clause (1) of article 167-A is concerned, I find no difficulty in accepting it. Now, I come to clause (2). This is rather widely worded. It says that any question regarding disqualification shall be decided by the Governor provided he obtains the option of the Election Commission and that he is bound lo act in accordance with such option. If members will turn to article 167, they will find that, so far as the disqualifications mentioned in (a) to (d) are concerned, the Commission is really not in a position to advise the Governor at all, because they are matters outside the purview of the Election Commission. For instance, whether any particular person holds an office of profit or whether a person is of unsound mind and has been declared by a competent court to be so, or whether he is an undischarged insolvenet or whether he is under any acknowledgment or adherence to a foreign power are matters which are entirely outside the purview of the Election Commission. They therefore could not be the proper body to advise the Governor. But when you come to sub-clause (e)