Vol. 2 · pages 666–670

645IN THE FEDERAL STRUCTURE COMMITTEE Federal Government which you are proposing should take over the control and responsibility for the military at once. Dr. Ambedkar: Well, if not now, later on. Mr. Jinnah: What is to happen in the meantime ? Dr. Ambedkar: As I said, that is another matter. The necessity for the employment of the military may not arise. Mr. Jayakar: You will have to go to the Crown to ask for military help. Dr. Ambedkar: Yes. Mr. Jayakar: The Crown is the ultimate military authority. Dr. Ambedkar: I do not think that takes away the point that I am making. The power ought to be given to the Federal Legislature. In the United States of America, people have been hanged by the States, although a writ of error has been issued by the Supreme Court. Chairman: I have heard it said, with regard to English Common Law, that it is no use pulling up a plant repeatedly to have a look at the roots and to see whether it is growing. English Common Law will not stand that sort of thing, and you will find that no code of law will. You are putting very interesting legal conundrums; but the short answer is that anybody can make a thing unworkable, and it is no good always diving into the foundations to see if the foundations are all right. You must trust a good deal to the good sense of the people. It took about nineteen years in the Virginia case for people to come to a proper view. You may find that that may happen in your case. There may be these difficulties at first; but when you begin to work together, you will find a great many of them disappear. You cannot dig down to the foundations of your house every three weeks to see whether they are in order. You must trust people a little. Dr. Ambedkar: My only reply is that we must see we do not lay our foundations on sand. Coming to the third part of the subject, namely, the organisation of the Federal Court, I do not really want to say much on this because I agree with a great deal that has already been said. I should like, however, to make one observation, namely, that we should follow in this matter the Australian model, in so far as by that we should not only be able to get a Federal Court of Appeal for federal matters, but also a Supreme Court of Appeal for India as a whole, as they have done in Australia, whereby the Federal Court not only hears appeals from Courts which exercise federal jurisdiction but also hears appeals from Courts in matters which are outside the federal jurisdiction. I would particularly point out that the Federal Legislature of India should be left free to invest the Courts in Indian States with federal jurisdiction, so that it may be able to utilise the agency of the State Courts in the Indian States. Federal jurisdiction should not be delegated merely to the High Courts of the Provinces, but certain selected State Courts, which to the knowledge of the Federal Legislature are functioning efficiently, may also

646 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES be selected as agencies for the exercise of federal jurisdiction in certain matters. The result of that, I think, will be very important. It will first of all raise the dignity of the State Courts; and, secondly, it will link up the State Courts with the whole judicial system in India, and will make our Federation a real Federation. Mr. Jayakar: An appeal must lie to the Supreme Court, the Federal Court? Dr. Ambedkar: I am coming to that. In that connection, what I would suggest is that the State Courts should consent to send their appeals to the Federal Supreme Court even in matters not affecting federal jurisdiction. If they do not, I suggest that we should keep the same open-door policy which has been adopted in the Australian Constitution. In the Australian Constitution, provision is made that the Federal Court or the High Court of Australia shall not be prevented from hearing appeals from the States’ Courts. I would like to have that provision introduced into our constitution. Further, although we may not make it obligatory upon the States’ Courts to send their appeals to the Federal Court, we should prevent the Federal High Court from hearing appeals in case the States subsequently decide to give appellate jurisdiction to the Federal Court from their decisions. As I say, I would again follow the model of the Australian Constitution by giving to the States the right to regulate the right of appeal from their Courts to the Federal Courts. They may not give the same rights of appeal as there maybe from British Provinces; they regulate it if they like. Then there is just one thing I would like to say. That is with regard to the relation of the High Court to the Federal Government. At present the Indian High Courts are Provincial both for finance and for administration, except the High Court of Calcutta, which is, of course, Provincial for finance but Central for administration. Sir Tej Bahadur Sapru yesterday made the suggestion that the Indian High Courts should be Central for administration in all Provinces, and for financial purposes should be Provincial. As regards the suggestion by Sir Tej Bahadur Sapru that they should be Central for administration, I entirely agree with him ; but my reasons are somewhat different, and I should like to state them. He said there was a certain amount of nervousness on the part of Judges of the Indian Provinces that they are likely to be subjected to local political pressure, and that they would, therefore, like to be lifted from the local politics to the control of the Federal Central Government. Now, I do not think the High Courts in any country, for the matter of that, where there is representative democracy and responsible Government can be free from the influence of politics or the influence of party politicians. Sir Tej Bahadur Sapru: I thought the theory of the law is that the English Courts are outside party politics. Dr. Ambedkar: There are certain judicial posts in this country which are looked upon as political appointments, but that is another matter. Now, the

647IN THE FEDERAL STRUCTURE COMMITTEE consideration I would like to place before this Committee is this. We are admitting to this Federation some 562 Indian States. Mr. Jinnah : Are you ? Dr. Ambedkar: I suppose that is the scheme ; at least that is the ideal we have placed before ourselves that all the Native States will come into this Federation. I think there is no dispute on this point, that a great many of the States, which will be part of the Indian Federation, are financially not strong enough to maintain a competent judiciary. I know of a case in the Bombay Presidency—I am citing a case with which I am acquainted. In Bombay there is a small Native State, the administration of which is run by a lady. In that State, so far as I know, there is only one officer. He acts as a Civil Judge ; he also acts as a Magistrate ; he also acts as a Sessions Judge. From him appeals go to the head of the State, and she is helped by the Diwan who is, so far as I know, a retired revenue official. Most complicated cases come before this tribunal, which is called, so to say, the Privy Council of that State ; and judgments are being given today by a Court so constituted. Now, I do not blame anybody for that. The point is that such a State is so small that it simply has not got sufficient revenue to maintain a competent Court. Then there is another consideration, namely, that we may, even with respect to British India”, go on creating new Provinces so small that they, again, may not be in a position to maintain, financially speaking, a High Court. The case happens even today. The Province of Assam cannot maintain a High Court. It shares a High Court with the Presidency of Bengal. My submission is this—that if we can improve matters in such a way as to help all these Native States which are small and financially weak to maintain a proper judiciary by allowing to utilise these High Courts which are now functioning in British India for the purpose of administering civil and criminal justice among their subjects, such a plan ought to be welcome. The fact is that, so long as a Provincial High Court is being entirely controlled by a Provincial Government, the States, which have no share in the control of the affairs of the Province, will not care to use the services of the High Court. If, on the other hand, the Provincial High Courts were made a Central subject, where all these States would undoubtedly be represented either directly or indirectly, then there would be more inducement—certainly much less objection on their part—to utilise these High Courts for the purpose of adjudication of civil and criminal disputes among their subjects. The result would be that we would considerably improve the judicial administration in the Native States, which are going to be a part of the future Government of India, without in any sense impairing the efficiency of the Provincial High Courts. On that ground, I suggest that the Provincial High Courts may, for the purposes of administration and also for purposes of finance, be made a Central subject. One of the reasons why the High Court of Calcutta is Central for administration is because it is not a Court exclusively for the

648 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Presidency of Bengal. It is a Court which is a joint Court for the Presidency of Bengal and for the Province of Assam. It was for this reason that the Simon Commission recommended that the system should continue and be extended to other Provinces. That is the reason why I think this suggestion ought to be welcome. That is all I have to say on this subject of the Federal Court. Forty-fourth Sitting—2nd November 1931 Discussion on the Draft Third Report *Dr. Ambedkar: I should like to draw your attention to the last four lines of the paragraph. After stating, in the beginning, the recommendations of the Sub-Committee in paragraph 34 of their Second Report, Your Lordship stated : “We make no recommendation here relating to the first four of these interests, since the decision on this point is one for the Minorities Sub-Committee.” I do not think that Your Lordship means that the Committee is indifferent to the representation of those interests, nor, I think, does the opinion expressed in paragraph 34 of the Second Report mean this. What you mean is that you “cannot make any recommendation as to the extent or method of representation. I should therefore be obliged if you would amend the passage by adding, after the word “recommendation”, the words— “as regards the extent or method of their representations.” Mrs. Subbarayan: You may remember that I spoke at one of our sittings on the possibility of securing some special provision for the representation of women in the Legislature, and suggested that the consideration of this matter should be deferred until the Minorities Committee published their Report. But, lest the point be overlooked, I should respectfully suggest that some reference to it be made here, and that the following words be added in line 9 of paragraph 28 ; after the word “interests”, insert the words— “or to the representation of women in the Legislature.” Chairman: I am much obliged—I am sorry that we left it out—and I am also much obliged to Dr. Ambedkar. We will put in both those amendments. That was an oversight. Mrs. Subbarayan: On a previous occasion, while recognising the valuable work done by many of the nominated members in the past on the Legislatures, I objected to nomination in the new constitution on principle. I feel that I object to it all the more when I find that the two Chambers may have co-equal powers. I quite agree with the Report that the services of persons of the elder statesman type are most valuable ; but I am also convinced that the system of nomination is unwise and undemocratic, and. therefore, that it will be better if the services of such persons too are secured *Proceedings of the Federal Structure Committee and Minorities Committee, Vol. 1, pp. 882-83.

649IN THE FEDERAL STRUCTURE COMMITTEE through some system of election. If there is a system of nomination, I cannot help thinking that the whole object of this clause may be frustrated. and that the Ministry may only think of strengthening its own party in the Upper Chamber. Apart from this general objection, I would ask that, in paragraph 32, lines 7, 10, 19 and 22, the word “persons” be substituted for the word “men”. Chairman: I quite agree, Mrs. Subbarayan. In England we actually held, until about five years ago, that a woman was not a “person”. Mrs. Subbarayan: Perhaps they meant that she was something better ! Mr. Zafrullah Khan: In our General Clauses Act, it says that, whenever “man” is used, it includes “woman”. Mr. Iyengar: I desire to associate myself with what my friend, Mrs. Subbarayan, has said as regards nominated members. I also agree that it is very useful to have these elder statesmen in the Upper Chamber; but surely, if these elder statesmen are really wanted by the country, it would certainly be possible for them to come in by some constituency or other. I think the principle of nomination is vicious and we should get rid of it altogether. Dr. Ambedkar: I should like to associate myself with what has fallen from Mrs. Subbarayan. ***** †Chairman: We will say “should be adopted as a model for candidates for the Upper Chamber, taking into account any special provisions that may be required for women”. Dr. Ambedkar: I find considerable difficulty in subscribing to this part of paragraph 34—the Council of State qualifications taken as a model. It seems to me that it will entirely block the representation of the Depressed Classes. Chairman: We must not do that. Dr. Ambedkar: Liberty should also be given to the Franchise Committee to take this into consideration in framing their model rules. ***** ‡Dr. Ambedkar: I should like to say that the Committee should also consider the necessity of endowing the Central Government with powers to finance itself in emergency matters directly and independently, rather than be dependent upon contributions from the Provinces and States. Lord Peel: All these points, of course, were considered from every point of view, and this was the result of a compromise between the different views. That is really all I can say on it at the present moment, I think. Mr. Joshi: Lord Chancellor, I agree with Dr. Ambedkar’s view. Dr. Ambedkar: Lord Chancellor, I should also like to say that the factfinding Committee, in apportioning the burden of the Federal Legislature †Proceedings of the Federal Structure Committee and Minorities Committee, Vol. I, p. 886. ‡Ibid., pp. 899-900.