Vol. 15 · pages 326–330

309PARLIAMENTARY DEBATES *Mr. Chairman: And so only two amendments have been moved. I shall now put them to vote. Shri Meeran : And No. 7 may be put before No. 6. Shri Kapoor: With your permission, and if the Law Minister agrees, may I suggest that the “explanation” may be deleted ? Dr. Ambedkar: No, the explanation is necessary. I will explain why it is necessary later, when Mr. kapoor moves his amendment to another Bill. Clause 2 as amended was added to the Bill. **Mr. Chairman: Does the hon. Minister want to reply ? Dr. Ambedkar: A reply is unnecessary. Mr. Chairman : The question is: “ That clause 1 stand part of the Bill. ” The motion was adopted. Clause 1 was added to the Bill. The Title and the Enacting Formula were added to the Bill. Dr. Ambedkar: I beg to move: “ That the Bill, as amended, be passed.” The motion was adopted. *P.D. Vol. 10, Part-II, 20th April 1951, p. 7150

310 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (30) *CODE OF CIVIL PROCEDURE (AMENDMENT) BILL The Minister of Law (Dr. Ambedkar): I beg to move for leave to introduce a Bill further to amend the Code of Civil Procedure, 1908. Mr. Speaker: The question is: “ That leave be granted to introduce a Bill further to amend the Code of Civil Procedure, 1908.” The motion was adopted. Dr. Ambedkar: I introduce the Bill. **CODES OF CIVIL AND CRIMINAL PROCEDURE (AMENDMENT) BILL ***The Minister of Law (Dr. Ambedkar): I beg to move: “ That the Bill further to amend the Code of Civil Procedure, 1903, and the Code of Criminal Procedure, 1898, be taken into consideration.” This Bill seeks to make a change in the jurisdiction of the subordinate judiciary. As the House knows the Constitution gives courts in India the right to declare whether any particular law made by the legislature, Central or provincial, is intra or ultra vires of that legislature. This power is now being exercised by all the subordinate judges and members of Parliament must have been aware that some very curious decisions have been given by various subordinate courts holding certain laws to be ultra vires. It is felt that it would not be right to leave this power of declaring whether the laws made by the State are intra or ultra vires to the subordinate judiciary. First of all, without meaning any offence to members who are holding it, the subordinate judiciary cannot be said to be * P. D., Vol. 7, Part II, 18th December 1950, pp. 1834-35. ** P. D., Vol. 10, Part II, 20th April 1951, pp. 7153-76. ***Ibid., pp. 7153-54.

311PARLIAMENTARY DEBATES qualified to deal with problems involving intra vires or ultra vires of a law. Secondly, the Bar which appears generally before the subordinate courts cannot also be said to be competent to help the courts to come to a correct decision on such points. It is therefore felt that in the interest of uniformity of decision on questions of constitutional importance it is right that the power to declare any law ultra vires should be withdrawn from the subordinate judiciary. The Bill follows the procedure which exists in some of the States in the U.S.A., where also by law the subordinate judiciary is prevented from giving judgments on questions of constitutional importance. Besides this there is nothing very special in this Bill. We propose to amend by this Bill section 113 of the Civil Procedure Code by the addition of a proviso whereby the subordinate judge is required, in case he is of opinion that any particular law is ultra vires, to refer the matter to the High Court and to await the decision of the High Court. It is also proposed to amend section 432 of the Criminal Procedure Code requiring a magistrate also to refer the case to the High Court if the magistrate thinks that the Act is ultra vires. This is all there in this Bill, which I commend to the House. Mr. Chairman : Motion moved : “ That the Bill further to amend the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, be taken into consideration..” *Dr. Tek Chand : ………….I submit that this Bill is based on very sound principles and that it should be passed without further discussion. I have to say a word with regard to the observations made by my hon. friend Shri Shiv Charan Lal. He thinks that after the words “Act, Ordinance and regulation,” which are already in the Bill, should be added the words “rules or orders”, that is to say, when a question relating to the validity of a particular rule or particular order passed under an Act, Ordinance or regulation arises and this should also be referred to the High Court in the same manner as the Bill provides * P. D., Vol. 10, Part II, 20th April 1951, pp. 7172-76.

312 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES for points relating to the validity of an Act, Ordinance or Regulation itself. With respect, I would say that it is not necessary nor desirable that every little case in which is involved the validity of an order passed by a Collector or some other officer to whom power has been delegated to frame a rule or pass an order, be sent to the High Court. This will unnecessarily swell the number of cases in which references are to be made to the High Court. What the bill proposes to take there are three cases of major importance : (i) Act of the Central Legislature or Act of one of the State Legislatures, and (ii) Ordinances which stand on the same footing as Acts of the legislature and (iii) Regulations. It is not every Regulation but only those passed in Bengal, Bombay and Madras, or Regulations as defined in the General Clauses Act of 1897. These are Regulations of old days, promulgated before legislatures had been established but which have been retained on the Statute Book and, therefore, they have the same force and are on the same footing as Acts and Ordinances; as for instance Regulation III of 1818. The Bill, therefore, applies to those cases only in which the validity of an Act of a Legislature is involved and not the validity of an order passed by a Collector or by a Secretary to Government or some other officer, acting under power delegated to him. These do not come within the purview of the Bill and rightly. Sir, I think this is a salutary provision and the Bill should be passed as it is. Dr. Ambedkar: May I be permitted to adopt the observations of my hon. friend Dr. Tek Chand in view of the fact that there is very little time and also because there is very little that I need say in addition to what he has already said here? We discussed these questions and he has now expressed what I would have expressed if I had the chance. I think that should suffice. If there is any point arising out of any amendment or things like that, then certainly I shall deal with them. Mr. Speaker: The question is : “That the Bill further to amend the Code of Civil Procedure, 1908 and the code of Criminal Procedure, 1898, be taken into consideration.” The motion was adopted.

313PARLIAMENTARY DEBATES Clause 2.—(Amendment of Act V of 1908.) Shri Shiv Charan Lal: I have an amendment to this clause which I shall move, in case the Hon. Law Minister is willing to accept it. Otherwise I will not move it. Dr. Ambedkar: No, it is not the intention to accept it. Shri K. Vaidya: Sir, Rule 2 of Order XLVI and Rule 5 of the same Order seem to be inconsistent and I would like to have some clarification of the position from the Hon. Law Minister. I am referring to my amendments Nos. 2 and 3 of List No. 3. Amendment No, 1 I am not moving. I had already raised this point before and I would like to hear what the Hon. Law Minister has to say. Dr. Ambedkar: I am not prepared to accept the amendments proposed by my hon. friend because I do not think it is right and proper that all the proceedings in a case should be stayed. Mr. Speaker: But Mr. Vaidya is not moving his amendment No. 1 asking for that. Dr. Ambedkar: Yes, Sir, but the other amendments he refers to are consequential to his amendment No. 1. If that is not moved then there is no substance in the other amendments. Shri K. Vaidya : They are not consequential because……. Mr. Speaker: Let him explain the position first. Dr. Ambedkar: A s I understand it, the position is this. It is suggested that when a reference is made by the subordinate court to the High Court, all further proceedings in the matter should stay. That is the fundamental point of the hon. Member. That Court should do nothing until the High Court returns the papers with its interpretation. With that position I entirely disagree for this reason that a case might involve one issue of a constitutional nature and many other issues which may have nothing to do with the Constitution. And I do not understand why a magistrate who is required under this Bill to make a reference to the High Court on one of the many points which are involved in the case should be 4-00 p M