Vol. 13 · pages 861–865

828 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (2) An order made as aforesaid may extend to the whole or any part of the territory of India. (3) Every order made under clause (1) of this article shall as soon as may be after it is made be laid before each House of Parliament.’ ” Sir, the House will realise that clauses (2) and (3) are additions to the old article. In the old article there was a provision that while a Proclamation of Emergency was in force the President may suspend the provisions for the rights contained in Part III throughout India. Now, it is held that, notwithstanding the fact that there may he emergency, it may he quite possible to keep the enforcement of the rights given by Part III in certain areas intact and there need not be a universal suspension throughout India merely by reason of the proclamation. Consequently clause (2) has been introduced into the draft article to make that provision. Thirdly, the original article did not contain any provision permitting Parliament to have a say in the matter of any order issued under clause (1). It was the desire of the House that the order of suspension should not be left absolutely unfettered in the hands of the President and consequently it is now provided that such an order should be placed before Parliament, no doubt with the consequential provision that Parliament will be free to take such action as it likes. ***** *The Honourable Dr. B. R. Ambedkar : Sir, I am not at all surprised at the strong sentiments which have been expressed by some speakers who have taken part in the debate on this article against the provisions contained in the clause as I have put forward. The article deals with fundamental matters-and with vital matters relating to rights of the people and it is therefore proper that we should approach a subject of this sort not only with caution but—I am also prepared to say—with some emotion. We have passed certain fundamental rights already and when we are trying to reduce them or to suspend them we should be very careful as to the ways and means we adopt in curtailing or suspending them. * CAD, Vol. IX, dated 20th August 1049, pp. 548-51.

829DRAFT CONSTITUTION Therefore my friends who have spoken against that article will, I hope, understand that I am in no sense an opponent of what they have said. In fact I respect their sentiments very much. All the same I am sorry to say that I do not find it possible to accept either any of the amendments which they have moved or the suggestions that they have made. I remain, if I may say so, quite unconvinced. At the same time, I may say that I am no less fond of the fundamental rights than they are. I propose to deal in the course of my reply with some general questions. It is of course not possible for me to go into all the detailed points that have been urged by the various speakers. The first question is whether in an emergency there should be suspension of the fundamental rights or there should be no suspension at all; in other words, whether our fundamental rights should be absolute, never to be varied, suspended or abrogated, or whether our fundamental rights must be made subject to some emergencies. I think I am right in saying that a large majority of the House realises the necessity of suspending these rights during an emergency ; the only question is about the ways and means of doing it. Now if it is agreed that it is necessary to provide for the suspension of these rights during an emergency, the next question that legitimately arises for consideration is whether the power to suspend them should be vested absolutely in the President or whether they should be left to be determined by Parliament. Now having regard to what is being done in other countries—and I am sure every one in this House will agree that we must draw upon the experience and the provisions contained in the constitutions of other countries—the position is this. As to the suspension of the right of what is called habeas corpus the matter under the English law must of course be dealt with by law. It is not open to the executive to suspend the right of habeas corpus. That is the position in Great Britain. Coming next to the position in the United States, we find that while the Congress has power to deal with what are called constitutional guarantees including the suspension of the writ of habeas corpus the President is not altogether left without any power to deal with the matter. I do not want to go into the detailed history of the

830 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES matter. But I think I am right in saying that while the power is left with the Congress, the President is also vested with what may be called the ad interim power to suspend the writ. My friends shake their heads. But I think if they referred to a standard authority Corwin’s book on ‘the President’, they will find that that is the position. Pandit Hirday Nath Kunzru : Will you let me interrupt him, Sir ? I am sure he is familiar with Ogg’s Government of America. Perhaps he will regard that book as a standard book. The Honourable Dr. B. R. Ambedkar : Yes. That is not the only book. There are one hundred books on the American Constitution. I am certainly familiar with some fifty of them. Pandit Hirday Nath Kunzru : It is stated there that the best legal opinion is that the right to suspend the privilege of the writ of habeas corpus vests in the Congress and that the President may exercise it only where, as Commander-in-Chief of the Armed Forces he considers it necessary for the security of the military operations. The Honourable Dr. R. R. Ambedkar : Yes. My submission is that in the United States while the Congress has the power, the President also, as the Executive Head of the State, has the ad interim power to suspend. Now, in framing our Constitution, we have more or less followed the American precedent. By the amendment which I have made, Parliament has been now vested with power to deal with this matter. We also propose to give the President an ad interim power to take such action as he thinks is necessary in the matter of the constitutional guarantee. Therefore, comparing the draft article and comparing the position as you find in the United States, there is certainly not very great difference betwen the two. Here also the President does not take action in his personal capacity. We have a further safeguard which the American Constitution does not have, namely, our President will be guided by the advice of the executive and, our executive would be subject to the authority of Parliament. Therefore, so for as the question of vesting all the power to suspend the guarantees is concerned, my submission is

831DRAFT CONSTITUTION that ours is not altogether a novel proposal which is made without either reference to any precedent or made in a wanton planner without caring to what happens to the fundamental rights. Now, having dealt with that question, I come to amendment No. 74 of Mr. Bhargava. I think that is an important matter and should therefore explain what exactly the provision is. His amendment really refers to article 279, although he has put it as an amendment to article 280. What he wants in that, any action taken by the State under the authority conferred upon it by the emergency provisions to suspend the fundamental rights should automatically cease with the ceasing of the Proclamation. I think that is what he wants so far as amendment No. 74 is concerned. My submission is that if the article is read properly, that is exactly what it means. I would like to draw his attention to article 279. He will see that that article does not save anything done under any law made under the powers given by the emergency. In order that the matter may be clear to him I would like again to draw his attention to article 227. If he compares the two, he will see that there is a fundamental difference between the two articles. Article 227 is also an article which gives power to the Centre to pass certain laws in an emergency even affecting the State List. I would draw his attention to clause (2) of article 227. He will find at the end of it that all acts cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate except as respect things done or omitted to be done before the expiration of the same period. This clause does not occur in article 279. Therefore, not only any law that will be made under the provisions of article 279 will vanish, but anything done will also cease to be validly done. Thus, a person who was arrested under the provisions of any law made under article 279, would when the law has ceased to be in force not be governed by it merely because it has been done under any law made under that article. Under this article 279, not only the law goes, but the act done also goes. Then I would draw attention to clause (2) of article 8. That again is an important article which must be read with article 279. Article 8 is an exception to the general provisions contained in this Constitution

832 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES that the existing law will continue to operate. What article 8 says is that any existing law which is inconsistent with any of fundamental rights will be inoperative. Article 8 clause (1) deals with the existing law and clause (2) deals with future laws. Thus, ‘any law made under article 279’ would be a future law. When the emergency ceases any law made under article 279 will come under clause (2) of article 8 so that if it becomes inconsistent with the fundamental rights it would automatically cease. Therefore my submission is that, so far as amendment 74 is concerned the fears expressed are groundless. There is ample provision in the existing law which would cover all the cases my honourable Friend Pandit Thakur Das Bhargava has in mind. Pandit Thakur Das Bhargava : In article 277 (2) the reference is to a law made by Parliament. It has no reference to any action taken by the executive. Secondly, it speaks of law made by Parliament whereas under article 13 we have reference to a law made by a State as defined therein. The Honourable Dr. B. R. Ambedkar : The State there means both, because the word ‘State’ used in article 279 is used in the same sense in which it is used in Part III where it means both the Centre, the provinces and even the municipalities. Pandit Thakur Das Bhargava : Whereas in 227 (1) the reference is only to Parliament. The Honourable Dr. B. R. Ambedkar : That is what I say. 279 will also be governed by 8. Therefore any law which is inconsistent with the fundamental rights granted will cease to operate. Now, I proceed to deal with amendment No. 78 of Pandit Bhargava. In that amendment he has stated that the order issued by the President suspending the provisions of any of these fundamental rights shall be expressly ratified. He says that there must be express ratification by Parliament of an order issued by the President. The draft article proposed by the Drafting Committee provides that the ratification may be presumed unless Parliament by a positive action cancels the order of the President. That is the real difference between his amendment and the article as I have formulated. Pandit Thakur Das Bhargava : But it is a very fundamental difference.