“It is hoped that both the Federal Court and the Supreme Court will evolve a jurisprudence suited to the genius of the people and the conditions of our country”.
CONSTITUENT ASSEMBLY OF INDIA – VOLUME IX
Saturday, the 17th September, 1949
The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Nine of the Clock, Mr. President (The Honourable Dr. Rajendra Prasad) in the Chair.
ABOLITION OF PRIVY COUNCIL JURISDICTION BILL
Mr. President: The first item is the Bill. Dr. Ambedkar.
The Honourable Dr. B. R. Ambedkar (Bombay: General) : Mr. President, Sir, I move :
“That the Bill to abolish the jurisdiction of His Majesty in Council in respect of Indian appeals and petitions, introduced on the 14th September 1949, be taken into consideration by the Assembly”.
I would like to say just one or two words and inform the House as to why this Bill has become a necessity and what the Bill proposed to do in substance. Tile necessity for the Bill arises because of two circumstance. One is the provision contained in clause (3) of the proposed Article 308. This article 308 is to be found in the midst of, what are called transitional provisions, Clause (3) of article 308 provides that-
“On and from the date of commencement of this Constitution the jurisdiction of His Majesty in Council to entertain and dispose of appeals and petitions from or in respect of any decree or order of any court within the territory of India, including the jurisdiction in respect of criminal matters exercisable by Ms Majesty by virtue of His Majesty’s prerogative shall cease, and all appeals and other proceedings pending before His Majesty to Council on the said date shall be transferred to and disposed of, by the Supreme Court’ which means that on the date on which the Constitution comes into operation, the jurisdiction of the Privy Council will completely vanish.
The second circumstance which has necessitated the Bill is that it is proposed that this Constitution should come into operation sometime about the 26th January, 1950. The effect of these two circumstances is that the Privy Council will have no jurisdiction to entertain any appeal or petition after the 26th January 1950, assuming that that becomes the date of the commencement of the Constitution. But what is more important is this that the Privy Council will not even have jurisdiction to deal with and dispose of appeals and Petitions which may be pending before it on the 26th January, 1950 Now making stock of the situation as it will be on the 26th January 1950 the position this. There are at present seventy civil appeals and ten criminal appeals ending before the Privy Council. The Calendar of cases which is prepared or the next sitting of the Privy Council has set down twenty appeals for hearing and disposal. It is also a fact that that is probably the only sitting which the Privy Council will hold for the purposes of disposing of the Indian appeals before the date on which the Constitution comes into operation.
According to the information which we have, this list of cases which is prepared for hearing at the next session of the Privy Council contains about twenty appeals, which means that on the 26th January, 1950, sixty appeals will remain pending undisposed of; and the question really that we are called upon to consider is this. What is to be done with regard to these sixty appeals which are likely to remain pending before the Privy ‘Council on the 26th January, 1950? There are, of course, two ways of dealing with this matter. One way was to continue the jurisdiction of the Privy Council and dispose of all the appeals that are now pending before it. That was the procedure that was adopted in the Irish Constitution by article 37 whereby it was stated that nothing in their Constitution would affect the jurisdiction of the Privy Council to deal with matters that may be pending before them on the date of the Constitution. But as I pointed out, in the proposed article 308 clause (3), we do not propose to leave any jurisdiction to the Privy Council. We propose to terminate the jurisdiction of the Privy Council on the 26th January, 1950. The only way out, therefore, is to provide that the jurisdiction of the
Privy Council shah terminate, that their jurisdiction shall be conferred on the Federal Court and that they shall transfer all the cases which are pending before them on the 10th October, except the twenty cases to which I made a reference earlier to the jurisdiction of the Federal Court. This is what the Bill does.
Now, Sir, coming to the specific provisions of the Bill, it will be noticed that clause 2 abolishes the jurisdiction of the Privy Council over all courts in the territory of India. Clause 3 abolishes the jurisdiction of the Privy Council over the Federal Court, and clause 5 is the converse of clauses 2 and 3, because it proposes to confer the Privy Council jurisdiction on the Federal Court. Clause 4 deals with the matters that are pending before the Privy Council. Although clause 5 confers the Privy Council’s jurisdiction on the Federal Court, clause 4 is a saving clause and saves the jurisdiction of the Privy Council in certain appeals and petitions which are pending before it. They may be classified under four heads : (1) Appeals and petitions in which judgment has been delivered, but Order in Council has not been made before the 10th October, (2) appeals entered in the Cause List for Michaelmas sitting which begins on the 12th October, (3) petitions which are already lodged and may be lodged before the 10th October, and (4) appeals and petitions on which judgment has been reserved by the Privy Council although the hearing has. been completed. In clause 6, all those matters which do not come under clause 4 stand automatically transferred to the Federal Court even though they may be pending before the Privy Council. Clauses 7 and 8 are mere matters of construction.
While curtailing the, jurisdiction of the Privy Council it is felt that it is desirable to repeal and amend certain sections of the Government of India Act, 1935 which are necessary as a matter of consequence and which are also necessary to remove some- of the anomalies in the Government of India Act with regard to the jurisdiction and powers of the Federal Court. As I have said, clause 3 repeals Sections 208 and 218 of the Government of India Act which deal with the Privy Council and appeals from the Federal Court, and appeals from a court outside India. Both these changes are consequential.
It is proposed to amend Section 205 which deals with the appellate jurisdiction of the Federal Court, and Section 209 which deals with the form of judgment and the drawing up of decrees, 210 which deals with jurisdiction of the Federal Court over other courts and Section 214 which deals with jurisdiction of the Federal Court over courts outside India.
It is proposed, therefore, by these consequential and other necessary amendments to make the jurisdiction of the Federal Court complete and independent. This measure, undoubtedly, is an interim measure, because these’ powers will last only up to the 26th January 1950 when the Constitution comes into operation. On the 26th January 1950, the powers of the Federal Court will be those that are set out in the Constitution.
Sir, I move.
Mr. President: The motion is:
“That the Bill to abolish the jurisdiction of His Majesty in Council in respect of Indian appeals and petitions, introduced on September 14, 1949, be taken into consideration by the Assembly.”
Does any Member wish to say anything about it ?
Pandit Thakur Das Bhargava (East Punjab : General) : pleasure In supporting the motion moved by Dr. Ambedkar. It is but meet that the jurisdiction of the Privy Council which is the symbol of our judicial slavery should end as soon as possible. I do not understand if there is any connection between the declaration of our country as a Republic and the Privy Council. When the Independence Act was passed, that was indication enough for us that we should abolish the jurisdiction of the Privy Council. I understand that in Canada also, while the connection is as good as before, attempts are being made to sever that connection. I read in today’s “Hindustan Times” as follows :
“In the speech from the
throne at the opening of Canada’s 21st Parliament, yesterday the Governor- General Viscount Alexander announced that two Bills would be introduced aimed at cutting Dominion ties with Westminster.
One would be a Bill to amend the Supreme Court Act so that the Supreme Court Act so that Supreme Court of Canada would become the final court of appeal for Canada.”
Therefore, I do not understand why this very thing which we are doing today could not have been done much earlier. When in 1947 a Bill was placed before the legislative part of the Constituent Assembly for the enlargement of the powers of tile Federal Court, Ajmer-Merwara was not included in the list of those High Courts from which appeals to the Privy Council were to be, substituted in future to the Federal Court, as Ajmer-Merwara was a Judicial Commissioner’s court. But at that time many of us indicated that steps should be taken at once to see that this jurisdiction of the Privy Council was abolished.
Similarly in regard to criminal cases we have been trying for the last two years to see that the jurisdiction of the Privy Council is taken away. In the Legislative Assembly we brought in a Bill-Dr. Hari Singh Gour gave the notice and I introduced the Bill-and subsequently it was referred to Select Committee at my instance. But before the Select Committee it was found that that part of the Constituent Assembly had no power to enact a measure like that. therefore, before the last session of the. Constituent Assembly was over, Mr. Naziruddin Ahmad and I sent in a Bill, for abolition of powers of the Privy Council, to this House before August. We wanted that this jurisdiction should be abolished all at once. But unfortunately no notice was taken of that Bill. I am very glad that after all, now, on the last day of the session, this Bill has been brought.
In welcoming this Bill I would like to say that this is not the only point, namely, that our judicial slavery ends, about which we were so impatient. But I congratulate the Drafting Committee for their draft which is certainly much better than the draft which I placed for their consideration. This might also be one of the reasons why they have taken so much time in considering the question. The draft, as it stands, consists of two parts; one relates to the abolition of the jurisdiction powers of the Privy Council and the other relates to the conferment of the corresponding jurisdiction on the Federal Court. I am very glad that clause 5 finds a place as the subject matter of it did not as a matter of fact find a place in article 308. Article 308 only operates to abolish the jurisdiction of the Privy Council. But it failed to confer the jurisdiction of the Privy Council on the, Federal Court. Now., clause 5 seeks to place that jurisdiction which was enjoyed by the Privy Council on the Federal Court. The jurisdiction enjoyed by the Privy Council in regard to criminal matters was a very special kind of jurisdiction which could only be enjoyed by the Privy Council of a State in which there was monarchy. Now, the words in clause 5 are “the same jurisdiction to entertain and dispose of Indian appeals and petitions as His Majesty in Council has, whether by virtue of His Majesty’s prerogative or otherwise”. So under clause 5 these powers have now been transferred to the Federal Court.
When I come to my amendment I will have occasion to say how this is different from the ordinary jurisdiction in regard to appeals etc. At this stage I need not dilate upon that. The only point that I want to bring to your notice in this connection is that whereas in clause 9 we have got some statement of the powers of the Federal Court on the civil side, there is no corresponding statement in regard to the criminal powers of the Federal Court after they have been conferred on it under clause 5. And I have tried to fall up that lacuna.
Similarly, in regard to clause 4 relating to the exceptions which have been made so far as the Privy Council jurisdiction is to continue for certain appeals, my humble submission is that as a matter
of fact we should not allow any jurisdiction to continue in the Privy Council in regard to cases in which the Privy Council has so far done nothing. My opinion is that cases in which the Privy Council has done nothing should be transferred at once to the Federal Court. After all a petition for appeal consists of two main parts. Firstly the petition is lodged mechanically with the Registrar and the Registrar has done nothing to it except the formal record of the lodgment of the appeal. Then at the first hearing the question is gone into and sanction is accorded. It is but meet that in regard to these cases in which the appeals have only been lodged, the entire proceedings should take place in India because nothing has been done in respect of them in the Privy Council so far.
In regard to cases where something has been done, where they have been finally put before the Privy Council, where-I can understand-people have spent lakhs of rupees on counsels etc., those cases-twenty of them, as has been indicated by Dr. Ambedkar-may be heard by the Privy Council. But there is absolutely no reason why the cases in which only the petitions have been lodged before the Privy Council should be allowed to be gone into by the Privy Council and the question of sanction or ban decide. I for one do think that so far as the legal aspect of the matter is concerned we should see that the entire proceedings in those cases take place in India. Clause 5(2) says that even if the sanction is accorded, further proceedings are to take place here. But I understand that the more legal and more just thing is that the entire proceedings should be had in India.
In regard to pending cases, so far as any cases remain which are not disposed of by the Privy Council and which are not taken cognizance of, in the sense that they are not taken and finished in this session in 1949, 1 hope all these unfinished cases will come here, because there is no object in keeping any connection with the, Privy Council any further. I have put in an amendment, but at this stage I do not want to take up the time of the House. Sir, I support the motion before the House.
Mr. Naziruddin Ahmad (West Bengal: Muslim) : Mr. President, Sir, I welcome the motion for consideration of the Bill. The matter has already been unduly delayed, but after all I am happy that it has come at last.
I have two points to submit at this stage. One is the question as to what would happen to those appeals which were appeals against a decision of the Federal Court. This Bill absolutely prohibits the Privy Council from deciding them and they must lapse. I submit this will cause much hardship. I submit that appeals which have been admitted by the Privy Council, on the ground of leave having been given by the Federal Court or special leave given by the Privy Council itself, should not be killed in this fashion because when the appeals were lodged and were admitted the appellants acquired something like a vested right in the sense that they had a right to be heard and their contentions decided in a formal manner. This right is being taken away. Many must have spent a lot over them. This will create real hardship.
The other point to which at this stage I wish to draw the attention of Dr. Ambedkar is clause 10. With regard to clause 10 the procedure laid down in the Civil Procedure Code is retained. Those provisions are sections 109, 110, 111 of the Code of Civil Procedure and order XLB of the same Code. So far as these sections are concerned, they will now be, by virtue of this Bill, entirely obsolete. They deal with certain preliminaries relating to appears to the Privy Council from the judgment of the High Court. Those provisions are entirely covered by an earlier enactment of the Central Legislature passed in 1941 that is, Act XXI of 1941, and also by clause 9, sub-clause (2), of the present Bill. I submit that clause 10 of the Bill will result in a clash between the provisions of the Civil Procedure Code and Act XXI of 1941. By the Adaptation Order of 1937, section 111-A and Rule 17 to order
XLV of the Civil Procedure Code were added. But by the Act of 1941, section 111-A of the ,Civil Procedure Code and Rule 17 of Order XLV were repealed and by that Act the Federal Court was enabled to make their own rules. By virtue of that power, the Federal Court has already made rules and they would cover procedural matters relating to appeals. In the face of those rules which are self-complete, there would be a clash between those rules and the provisions of the Code of Civil Procedure. I should like to ask the honourable Member to consider the desirability of retaining clause 10. I shall give the details when it comes up, but I merely draw attention to the unnecessary character of this clause.
Sir, generally I support the Bill.
Shri B. N. Munavalli (Bombay States) : Mr. President, Sir, the Bill as it stands has been very carefully worded and has met all the difficulties that were being felt up till now. The Honourable Pandit Thakur Das Bhargava stated that all those appeals which have not been beard in the Privy Council should be transferred to the Federal Court. But we must look to the procedure of the Privy Council also. In the case of certain appeals which have already been registered, it is but natural that certain work with regard to them must be attended to there. So, although the appeals are not heard by the Privy Council, still it stands to reason that the appeals which have been registered should be left with the Privy Council for decision. But now when the Bill comes into force on the 10th of October 1949, all the appeals will vest with the Federal Court. Also, if there are any appeals to the Privy Council which the High Court has certified, provision has been made there also for appeal to the Federal Court. Under these circumstances, I do not think there is any reason why there should be any changes in the Bill as piloted by Dr. Ambedkar.
My honourable Friend Mr. Naziruddin Ahmad said that the right of the persons who might have appealed against the decision of the Federal Court to the Privy Council had been taken away. But really speaking it is not so. The fact is that if they have already gone in appeal to the Privy Council and if those appeals have been registered, they will be heard by the Privy Council. That being the case, there is no grievance whatsoever. The Bill provides for every contingency and meets the grievances that were left unredressed up till now. So I am in agreement with the Bill and wholeheartedly support it Dr. Bakhshi Tek Chand (East Punjab: General) : Mr. President Sir, I rise to support the proposition that has been moved by Dr. Ambedkar and to oppose the amendment of my honourable Friend, Pandit Thakur Das Bhargava.
Pandit Thakur Das Bhargava: No amendment has not been moved yet.
Dr. Bakhshi Tek Chand: Oh, the amendment has not been moved yet.
Today is, if I may say so, a memorable day in the history of this country. It is exactly after 175 years that the judicial connection of this country with England comes to an end. It was, Honourable Members may be aware, in 1774, when, by an Act of Parliament passed in the previous year, a Supreme Court was,, established at Fort William in the Province of Bengal. By that Act provision was made for taking appeals from the judgments, decrees and orders of the Supreme Court to His Majesty’s Privy Council in England. In 1800 a Supreme Court was established in Madras and in 1823 another Supreme Court in Bombay, and appeals from these three Courts were regularly taken to England. In 1883 the British Parliament passed the Judicial Committee Act by which the Privy Council appointed a Committee only, to hear and dispose of appeals from India and the colonies, consisting only of persons with judicial or legal experience from amongst its members. From 1833 up to now this jurisdiction has been exercised by that august body.
During this period, if I may say so, the Pr-ivy Council has been a great unifying force in the judicial administration of this country, and I would like, with your permission to express our high appreciation of the
work which it did. At a time when there were no Indian Judges in, the High Courts, and then the number of Indian lawyers was very limited, the Privy Council unravelled the mysteries of Hindu Law, it enunciated ten principles of Mohammadan law, and formulated with clarity the customs which were prevalent in this country. Their Lordships of the Privy Council have from time to time elucidated the various Indian laws with an absolutely detached mind. They have laid down the principles on which the judicial administration of the country was based. No doubt there have been lapses and mistakes, occasionally but, on the whole, the Privy Council has been a great unifying factor and on many occasions has reminded the courts of the country of those fundamental principles of law on which the administration of justice in criminal matters is based. This long connection, in the fullness of time is coming to an end, as it must, now that we have attained freedom. That is the first observation which I have to make.
With regard to the provisions of the Bill, we have, as has been pointed out, about eighty or to be more exact, seventy-nine appeals pending before the Privy Council. Of these, thirty-one appeals in civil matters have been brought as a right and the records relating to those appeals had been received in England before 1st February 1948 when the Federal Court enlargement of jurisdiction came into force. There are thirty-eight civil appeal from the High Court in India in which special leave has already been granted and the appeals admitted for hearing before the Privy Council. With regard to criminal matters there are only ten appeals in which special leave has already been granted. As honourable Members are aware, no appeal in a criminal case lies to the Privy Council as of right. It is only by special leave of their Lordships that criminal matters can be heard there. In ten cases, such leave has already been granted and the cases are ripe for hearing. This is the entire list of pending cases though out of these seventy-nine cases, records of fifty-two cases have already been received in England and petitions of appeal leave been lodged in forty-one. Another branch of cases which could under the existing law, go to the Privy Council are appeals from the Federal Court in India in matters in which interpretation of the Government of India Act, 1935, or of the Orders in Council made thereunder or of the independence Act, may be involved. No appeal from the Federal Court is, however, pending at present before the Privy Council. Therefore this question does not arise.
Out of these seventy-nine appeals, it is likely that about twenty only will be heard before the twenty-sixth of January next year when, it is expected that the new Constitution will come into force. If even these cases are brought over to India at this stage it will be a very great hardship to the litigants who have spent thousands of rupees in having the records printed and sent up to England, in engaging- solicitors and briefing counsels there. Therefore, it is a very salutary provision that as many of them as can be disposed of by the 26th of January, should be allowed to be heard and decided there. Those which are not finished by that time will automatically be transferred to India.
The other matter relates to criminal appeals. These are cases, in which as I have said already special leave has been granted. They are mostly cases in which the appellants are under sentence, of death or transportation for life or other long terms of imprisonment. The trials of these persons were held long ago and after a lengthy process, their cases have reached the Privy Council and are ready for being disposed of shortly. It will be very undesirable-if I may say so, cruel-to bring those cases back to India for final disposal here, and delay the final decision for several months more and put the appellants to additional expense
There is a third class of cases with regard to which my honourable Friend, Pandit Thakur Das Bhargava has made some remarks. These are cases in
which petitions for leave to appeal in criminal matters have been lodged before the Privy Council but such petition have not been heard yet. Now, what will be the position with regard to them? Two possible courses are open. The first is that provision be made for the immediate transfer of these petitions to the Federal Court. This alternative appears to be supported by Pandit Thakur Das Bhargava. The other is as the Bill provides, that they may be set down for the preliminary hearing before their Lordships. I submit that this provision in the Bill is an eminently reasonable one. The petitioners in these cases, most whom are tinder sentence of death which have been confirmed by the High Courts, have applied to the ‘Privy Council for leave to appeal. Their petitions are already lodged there and the preliminary hearing will take-place in a few days. At the hearing their Lordships may refuse leave in some cases. In that event, there will be an end of the matter. The other possibility is that they may grant leave and then the appeals be admitted for final bearing. Provision has been made in the Bill that if leave is so granted the cases will be automatically transferred to India and the final disposal of those appeals will he in India before the Federal Court or the Supreme Court, as the case many be, I think, Sir, that is in eminently reasonable and practical provision and I submit that it ought to be accepted. It is not desirable to prolong the agony of these condemned persons much longer but to have the cases heard and finished as soon as possible.
Another suggestion made by an Honourable Member is that the Federal Court should be invested with jurisdiction to entertain petitions for leave with effect from the 20th September instead of the 10th October as laid down in the Bill. I may submit that this really does not make any material difference. According to the Privy Council rules, the Michaelmas term will begin on the 10th of October, and there is no chance of any petition being heard before, that date a the Privy Council is in vacation in these days. No list of cases which arc set down for hearing during the Michaelmas term under the rules of thePrivy Council can be issued after 23rd September except by special orders of their Lordships. Therefore this provision in the Bill is also eminently satisfactory and proper. I submit that-the.Bill as introduced contains very salutary transitory provisions which will make arrangements for the hearing of a small number of cases during the interval with the least expenses to litigants, and for the transference of the bulk of them to the Supreme Court in India. I therefore support the motion.
Mr. President : Is it necessary to prolong the discussion on this motion ?
Honourable Members : No, Sir.
Mr. President : The question is :
“That the Bill to abolish the jurisdiction of His Majesty in Council in respect of Indian appeals and petitions, introduced on September 14, 1949, be taken into consideration by the Assembly.”
The motion was adopted.
Clause 2
Mr. President: Clause 2. The first amendment. (No. 8) is in the name of Mr. Naziruddin Ahmad.
Mr. Naziruddin Ahmad: Sir, I beg to move
“That in sub-clause (1) of clause 2 for the words ‘entertain, and save as hereinafter provided to dispose of, appeals’, the words ‘entertain and, save as hereinafter provided, to dispose of appeals’
or, alternatively, entertain and (save as hereinafter provided) to dispose of appeals’
or, alternatively,
‘entertain, and (save as hereinafter provided) to dispose of appeals’ be substituted.”
Sir, these are of a drafting nature, but they cannot be left to the Drafting Committee which has nothing to do with this Bill. nor can they be referred to the Honourable Member-in-charge under our rules.
I next move :
“That in sub-clause (1) of Clause 2, for the word ‘court’ the word ‘Court’ (with a Capital ‘c’) be substituted.”
I am not moving amendment No. 10, because Pandit Thakur Das Bhargava, who is more concerned with it, will move it.
Sir, I move now my next
amendment No. 12
“That in sub- clause,(2) of Clause 2,
(a) for the words “The appeals and petitions’, the words ‘An appeal or a petition. and
(b) for the words ‘Indian appeals’, the words ‘Indian appeal’, and for the words ‘Man petitions the words ‘Indian petition’ be substituted.”
These are all of a drafting nature.
pandit Thakur Das Bhargava: Sir, my amendment No. 10 is really consequential to amendment No. 14. ]If amendment No. 14 is not carried, amendment No. 10 will not arise. So, with your permission I will move amendment No. 10 after the House has disposed of Clause 3 to which my amendment No. 14 relates.
Mr. President: I do not know how that can be done.Honourable Dr. B. R. Ambedkar: Sir, it is contained in clause 3 if my friend will read it. ‘Federal court’ is provided for in sub-clause (2) of clause 3. That is why the words “(other than the Federal Court)” are there in clause 2.
Pandit Thakur Das Bhargava: In this list it is in clause 2 and my amendment applies to it only.
Mr. President: You can leave it out for the present.
The Honourable Dr. B. R. Ambedkar: I do not accept the amendment. It is quite unnecessary.
Shri B. Das (Orissa: General) : I beg to move:
“That in sub-clause (1) of Clause 2, the words ‘or otherwise’ be deleted.”
Sir, it is very humiliating to me that, after you declare India a Republic on 26th January, 1950 certain powers of the King should be continued.- Our legal authorities Dr. Ambedkar and Shri Alladi Krishnaswami Ayyar think that the Privy Council enjoys powers in criminal cases. Sir, we have disestablished the King. Where then is His Majesty’s prerogative ? I do not want any loophole should be left whereby the authority of the British nation should be perpetuated over us through the insertion of the words ‘or otherwise’. This is a simple issue, if the Privy Council is not to decide any of our cases, why should we take shelter under the words ‘or otherwise’? My friends the eminent lawyers like ‘ Mr. Munshi may say that I do not know law. But I know my political rights. I do not want that I should in any way be subjected to the sovereignty of India’s former masters the British King or the King’s Councillors.
The Honourable Dr. B. R. Ambedkar: Sir, I do not think this amendment is very necessary, because the jurisdiction of the Privy Council may be derived also from the prerogative conferred by Statute. Therefore the words ‘or otherwise’ are quite necessary. We want to put an end completely to the jurisdiction not merely arising from the prerogative but from other sources also.
Mr. President: I will now put the amendments to vote.
The question is :
“That in sub-clause (1) of Clause 2, for the words ‘entertain, and save as hereinafter provided to dispose of, appeals’ the words ‘entertain and, save as hereinafter provided, to dispose of appeals’
or, alternatively,
‘entertain and (save as hereinafter provided) to dispose of appeals’
or, alternatively,
‘.entertain and (save as hereinafter provided) to dispose of appeal’ be substituted.’
The amendment was negatived.
Mr. President: The question is :
“That in sub-clause (1)of Clause (2), for the word ‘court’ the word ‘Court’ be, substituted.”
The amendment was negatived.
Mr. President: The question is:
‘That in sub-clause (1) of Clause (2), the words ‘or otherwise’ be deleted.”
The amendment was negatived.Mr. President : The question is
“That in sub-clause 2 of Clause 2,
(a) for the words ‘The appeals and petitions’, the words ‘An appeal or a petition’, and
(b) for the words ‘Indian appeals’ the words ‘Indian appeal’, and for the words ‘Indian petitions’ the words ‘Indian petition’ be substituted.”
The amendment was negatived.
Mr. President: Now I will put clause 2 to vote. The question is:
“That clause 2 stand part of the Bill.”
The motion was adopted.
Clause 2 was added to the Bill.
Clause 3
Shri S. V. Krishnamoorthy Rao (Mysore State) : Mr. President, I am not moving any of my amendments.
Pandit Thakur Das Bhargava: Mr.
President, I move:
“That for sub-clause (2) of clause 3, the following be substituted:-
‘(2) Any legal proceedings pending by virtue of section 208 immediately before the appointed day before His Majesty in Council shall be transferred to the Federal Court and the Governor-General shall, in consultation with the Chief Justice of India, make proper and suitable arrangements for their disposal and all such proceedings pending before the Federal Court shall abate on the appointed day.”‘
In regard to this clause I submit that it is easy to realise that if you have given any right to any people they should not be divested of them ordinarily speaking. Now, as regards the orders of the Federal Court there are many persons who are a,-grieved. ‘The present remedy is that they could get redress from the Privy Council. Some of these people must have made their petitions made their petitionsand appeals against these proceedings. Clause 2 only seeks to abate those proceedings. Since we are passing an Act by virtue of which the powers of the Privy Council shall cease there is no reason why these persons should be divested of those rights. But I see one difficulty. If the judges have participated in the decisions against which relief is sought in the Privy Council it may be difficult to provide disposal of such proceedings or appeals by the same judges. But that difficulty can be obviated by having an order may constitute a such judge who did not participate in original orders may constitute a Division Bench, or something else may be improvised. It is not beyond the capacity of the Chief Justice of India or of the Governor-General to make some arrangement for the disposal of such cases.
Shri T. T. Krishnamachari (Madras : General) : My friend’s remarks can be cut short if I explained there are really no appeals pending before the Privy Council from the Federal Court.
The Honourable Dr. B.R.Ambedkar: There is no pending appeal.
Pandit Thakur Das Bhargava : I heard from Dr. Ambedkar and Dr. Bakshi Tek Chand that there is no appeal pending, but there may be other proceedings. My submission is that if there are proceedings whereby remedy is possible to be given the persons concerned should not be deprived of their rights, merely because we are doing away with the jurisdiction of the Privy Council
Mr. Naziruddin Ahmad: Sir, I beg to move:
“That after sub clause (2) of clause 3, the following proviso be added:-
‘Provided that if special leave is granted on an Indian petition by the Judicial Committee of the Privy Council in a criminal matter, the appeal may be disposed of by the Judicial Committee before the commencement of the Constitution of India to be passed by the Constituent Assembly of India.'”The only thing that I wish to submit in this connection is that, it an accused has gone up to the Privy Council and his appeal is admitted by special leave or by leave of the inferior court, then in that case it would be a hardship for an accused person to spend large sums once in London in engaging lawyers and again in India in engaging other lawyers. ‘There would be further difficulty if the matter depends upon technical questions of law. One, court admitting the appeal on some technical grounds, and another court in deciding them. The change of lawyers as that of the courts would create practical difficulties. So long as our Constitution does not conic into force, I would only submit that in a criminal matter, in order to avoid hardship to the accused persons, if there is an appeal before the Privy Council, the latter should be permitted to hear the appeal, provided the hearing is completed before the Constitution comes into force.
The Honourable Dr. B. R. Ambedkar: I do not think it is necessary to accept the amendment moved by my Friend, Pandit Thakur Das Bhargava. As my Friend, Mr. Krishnamachari, has stated; there are really no appeals pending before the Privy Council from the Federal Court, and consequently it is quite unnecessary to make any saving as proposed by my Friend, Pandit Thakur Das Bhargava, because
nobody is really adversely affected, there being no pending cases.
With regard to the amendment moved by my Friend, Mr. Naziruddin Ahmad, I cannot understand why we should depart from the, principle which has been laid down that any criminal matter which is lodged before the Privy Council before the appointed day may be heard by them for purposes of admission but they would be returned to the Federal Court for final disposal. He wants to make a departure from it but I have not been able to see that the reasons be has advanced warrant it. Therefore I cannot accept his amendment.
Mr. President : The question is
“That for sub-clause (2) of clause 3, the following be substituted
‘(2) Any legal proceedings pending by virtue of section 208 immediately before the appointed day before His Majesty in Council shall be transferred to the Federal Court and the, Governor-General in consultation with the Chief Justice of India, make proper and suitable arrangements for their disposal and all such proceedings pending before the Federal Court shall abate on the appointed day.’ “
The amendment was negatived.
Mr. Naziruddin Ahmad: I would like to withdraw my amendment No. 17.
The amendment was, by leave of the Assembly, withdrawn.
Mr. President: The question is :
“That clauses 3 stand part of the Bill.”
The motion was adopted.
Clause 3 was added to the Bill.
Clause 4
Mr. Naziruddin Ahmad : I do not want to move my amendments Nos. 18 and 19.
The Honourable Dr. B. R. Ambedkar: Sir, I move
“‘That for sub-clause (b) of clause 4, the following sub-clauses be substituted.-
‘(b) any Indian appeal or petition on which the Judicial Committee has, after hearing the parties, reserved judgment or order; or [The Honourable Dr. B. R. Ambedkar]
(c) any Indian appeal which has been entered before the appointed day in the list of business of the Judicial Committee for the Michaelmas sittings of the year 1949 and which after that day is not directed to be removed therefrom by or under the authority of the Judicial Committee; or’;
and sub-clause (c) be re-lettered as sub-clause (d).”
What Probably requires some explanation is sub-clause (c). Although we have stated in the main clause that business or cases entered upon the calendar for the Michaelmas term may be left with the Privy Council for disposal, it is not quite certain how many of them may remain undisposed of. Therefore we propose to give permission to the Privy Council at the outset to say that, although a matter or a case is entered upon the cause list for the Michaelmas term, they will not be able to hear some of the matters, so that there may be no balance of pending cases left. In that event, those cases which the Privy Council directs that they will not be able to hear would also become automatically transferred to the Federal Court. It is to provide for that sort of contingency that I am adding this sub-clause (c) in terms of the amendment.
Pandit Thakur Das Bhargava: Sir, I move:
“That sub-clause (c) of clause 4 be deleted.”
This sub-clause relates to Indian petitions lodged before the appointed day to the register of the Privy Council. Now, in regard to these petitions, I am very sorry that I have not been able to change my opinion even after hearing my Friend, Dr. Bakshi Tek Chand. I would like very much to fall in line with his fine of argument but I am sorry there are several points which are troubling my mind, and so I have been forced to move this amendment. In my opinion, when a petition is lodged before the Privy Council, the occasion for engaging senior and costly counsels arises when the hearing for sanction takes place and not when the appeal is lodged. The appellants or applicants will be saved this cost if sub-clause (c) is deleted.
Secondly, I understand the whole reason for the transference of these powers is that we want that our own judges may decide our cases according to our standards of justice and our mental outlook and thought and therefore I think that every Indian who had filed an appeal will have the
mental satisfaction of his case being decided by the courts in India. Then fact that appeals have been filed need not be a reason for continuing these appeals in a country other than India. The mere fact that an appeal has been lodged cannot constitute a good reason for continuing the appeals in that court. Moreover, it is an accepted proposition that the same judges who heard the case at the time of granting leave should decide the case ultimately. Now we have just got an example of this principle when Dr. Ambedkar moved his amendment No. 20 substituting sub-clauses (b) and (c) and it is but meet that the case must remain in the same hands. If at the time when the special leave is given any remark in respect of any legal principle involved or any fact in the case is made by the judge who admitted the case, it would be difficult for any judge subsequently to get over the effect of those remarks and the accused will either be deprived of the advantages of these remarks or will be unduly prejudiced by them if another judge was called upon to decide the case later. Therefore on all these grounds, nothing will be lost if all these cases which are in a preliminary stage where only an appeal has been lodged are transferred back to the courts here. I am clearly of opinion that clause (c) of clause 4 should be deleted.
(Amendment No. 22 was not moved.)
The Honourable Dr. B. R. Ambedkar : Sir, I do not accept the amendment of Pandit Thakur Das Bhargava.Mr. President: The question is:
“That for sub-clause (b) of Clause 4, the following sub-clauses be substituted-
‘(b) any Indian appeal or petition on which the Judicial Committee has, after hearing the parties, reserved judgment or order; or
(c) any Indian appeal which has been entered before the appointed day in the Est of business of the Judicial Committee for the Michaelmas sittings of the year 1949 and which after that day is not directed to be removed therefrom by or under the authority of the Judicial Committee; or’;
and sub-clause (c) be re-lettered as sub-clause (d).”The amendment was adopted.
Mr. President: The question is:
“That sub-clause (c) of Clause 4 be deleted.”The amendment was negatived.
Mr. President: The question is:
“That clause 4, as amended, stand part of the Bill.”
The motion was adopted.
Clause 4, as amended, was added to the Bill.
Clause 5
Mr. Naziruddin Ahmad: Sir, I wish to move amendments Nos. 23 and 29. They are both of a drafting nature. I beg to move :
“That in sub-clause (1) of Clause 5, for the word “jurisdiction” the words “power and jurisdiction” be substituted.”
This expression has been used in some of the newly drafted articles to the Draft Constitution. This would make the sentence full and complete.
I beg to move :
“That in sub-clause (3) of Clause 5,for the words ‘certificate of the Registrar’ the words ‘certificate in this behalf by the Registrar’ be substituted.”
The Honourable Dr. B. R. Ambedkar: Sir, I move:
“That in sub-clause (3) of Clause 5, for the bracket-,, letters and word ‘(b) (c)’ the brackets, letters and word ‘(b), (c) or (d)’ be substituted-.”
It is purely consequential.
Mr. President: The question is
“That in sub-clause (3) of Clause 5, for the brackets, letters and word ‘(b) (c)’ the jurisdiction’ be substituted.”
The amendment was negatived.
Mr. President: The question is:
“That in sub-clause (3) of Clause 5 for the brackets, letters and word (b) (c)’ the brackets, letters and word ‘(b), (c) or (d)’ be substituted.”
The amendment was negatived.
Mr. President: ‘The question is :
“That in sub-clause (3) of Clause 5, for the words ‘certificate of the Registrar’ the words ‘certificate in this behalf by the Registrar’ be substituted.”
The motion was negatived.Mr. President : The question is :”That clause 5, as amended, stand part of the Bill,”
The motion was adopted.
Clause 5, as amended, was added to the Bill.Clause 6
Pandit Thakur Das Bhargava: Sir, I beg to move:
“That in clause 6, after word ‘appeals’ the words ‘or petitions’
be inserted.”
Shri T. T. Krishnamachari: That follows the scheme which Pandit Thakur Das Bhargava has in regard to the deletion of sub-clause (c) of clause 4. Since that has not been accepted by the House, I am afraid there is no point in putting this amendment to vote.
Mr. President: I will put it to vote anyway.
The question is :
“That in clause 6, after word ‘appeals’ the words ‘or petitions’ be inserted.”
The amendment was negatived.
Mr. President: The question is
“That Clause 6 stand part of the Bill.”
The motion was adopted.
Clause 6 was added to the Bill.
Clause 7
Mr. Naziruddin Ahmad: Sir, I beg to move:
“That in Clause 7, the comma after the word ‘effect’ be deleted.”
This comma seems to be offensive to the eye. The context is “shall have effect accordingly”. There is no need for a comma after the word “effect”.
Mr. President: I do not think this need be put to vote, this question of ‘comma’.
The Honourable Dr. B. R. Ambedkar: This will be looked into. This need not be put to vote.
Mr. President : The question is
“That Clause, 7 stand part of the Bill.”
The motion was adopted.
Clause 7 was added to the Bill.
Clause 8
Mr. Naziruddin Ahmad: Sir, I beg to move:
“‘That in Clause 8, for the word ‘petition’ be words ‘Indian petition’ be substituted.”
With regard to this we have defined “Indian petitions” in sub-clause (2) of Clause 2. There we have said “the appeals and petitions aforesaid are hereinafter referred to as “Indian appeals” and “Indian petitions”, respectively. Here the words are used together, ‘Indian appeals and petitions’. According to this clause strictly, they should be “Indian appeals” and “Indian. Petitions”.
Then I move
“That in Clause 8, the comma after the word ‘effect’ occurring in line 3, and the comma after the word ‘Council’ occurring in line 4 be deleted.”These words are unnecessary and impede the reading.
Shri B. Das: Sir, I beg to move:
” That Clause 8, be renumbered as sub-clause (1) of that clause, and the following new sub-clause be added :-
(2) Any such order or decree made after the appointed day must be simultaneously made by the Supreme Court in India after the date of-promulgation of the Constitution Act.”
Sir, my……….
Shri T. T. Krishnamachari: My honourable Friend is labouring under a misapprehension. He thinks that the appointed day is 26th of January; the appointed day is the 10th-of October.
Shri B. Das: Quite so; you please listen to me’ and you will under stand what my objection is.
Sir, it has been very irksome to me that the date, of declaration as Republic, of India has been postponed and we are labouring under the control of the British Raj, the United Kingdom Government in one shape or another. One hopes that after the 26th of January, 1950, there will be no domination by the United Kingdom Government or His Majesty in Council or anybody ill matters relating to India, unless, somehow through the back-door of Commonwealth, matters come in as unfortunately we have provided for in an article yesterday.”
I agree with my honourable Friend, Mr. T. T. Krishnamachari that the appointed day is earlier. But, can we’ guarantee that all orders will be passed by the Privy Council near about the appointed day and no others will be held up till the 26th January ? If some orders are held up, because the Privy Council reports to His Majesty in Council, and His Majesty in Council may sit over it and pass their order on the 27th of January and such orders may come on the 27th of January, , how will that order be announced in India ? Then, there are petitions and orders on these petitions may be passed on the 26th of January 1950. Suppose it takes time to be communicated to India after the 26th of January. When we are a Republic, we do not recognise any jurisdiction of the Privy Council or the so-called His Majesty in Council. Therefore, the proper thing is, if any such order is held up, the Privy Council or His Majesty in Council should forward it to our highest judicial court, the
Supreme Court, and if they announce it publicly in England on the 27th of January, simultaneously, the Chief Justice of the Supreme Court should announce it in India.
We do not want any further subordination in any shape or manner to the Privy Council. It went on fattening the British lawyers at the cost of India. One is glad, and I am very glad that British lawyers are going to be lean in the future because the huge amounts of money that flowed from India to the U.K. will not flow in future. But, at the same time, I am more proud of my sovereignty; I am more proud of my independence. Let Dr. Ambedkar and Mr. Munshi say-I would not accept Mr. T. T. Krisbnamachari’s word on it that no such orders will be withheld after the 26th of January. They may be withheld. Therefore, I have moved my modest amendment which is purely political and constitutional. I am not raking up any legal point : I have no right to say anything on legal matters. But I do say it will be an insult to me if an order is not simultaneously issued by the Supreme Court for any order that His Majesty in Council or the Privy Council may issue after the 26th of January 1950, the date of India’s becoming a Republic. That is my very modest amendment. I hope my honourable Friend, Dr. Ambedkar, will see the justice of it and to save our honour, and not to burden us with further indignities and humiliations through association with the British, my amendment should be accepted.The Honourable Dr. B. R. Ambedkar: I do not accept the amendment.
Mr. President:.Amendment No. 33 need not be put.
The question is :
” That clause 8 be renumbered as sub-clause (1) of that clause, and the following new sub-clause be added :-
“(2) Any such order or decree made after the appointed day must be simultaneously made by the Supreme Court in India after the date of promulgation of the Constitution Act.”
The amendment was negatived.
Mr. President: The question is:”That Clause 8, stand part of the Bill.”
The motion was adopted.
Clause 8 was added to the Bill.
Clause 9
The Honourable Dr. B. R. Ambedkar: Sir, with your permission’ I would like to move the amendment which have been put in a somewhat different form because I thought that the amendments as tabled rather create a confusion. If you will allow me, I have put all these in a consolidated form. There is no substantial change at all. It is just a matter of form and I thought that the House would be in a better position to get at the idea of what we are doing in clause 9.
Mr. President: Yes.
The Honourable Dr. B. R. Ambedkar: Sir, I move:
For clause 9, the following clause be substituted :-
“9. Amendments of the Government of India Act 1935. (1) In section 205 of the Government of India Act, 1935 (hereinafter referred to as the said Act), for sub-section (2) the following sub-section shall be substituted, namely
“(2) Where such certificate is given, any party in a case may appeal to the Federal Court on the ground that any question as aforsaid has been wrongly decided and, with the leave of the Federal Court, on any other ground.”(2) In Section 209 of the said Act, for sub-sections (1) and (2) the following subsections shall be substituted,-namely :-
“(1) Act V 1908. The Federal Court in the exercise of its appellate jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, including an order for the payment of costs, and any decree so passed or order so made shall be enforceable throughout the territory of India”.”
I should like to add one or two words to be interpolated, which have been omitted :
“In the manner provided in that behalf in the Code of Civil Procedure, 1908, or in such other manner as may be prescribed by or under a law of the Dominion_Legislature, or subject to the provisions of any such law. in the manner prescribed by rules made by the Federal Court.”
“(3) In clause (a) of sub-section (3) of section 210 of the said Act, for the word, brackets and figure “sub-section (2)”, the
word, brackets and figure “sub-section (1)” shall be substituted.”
“(4) In section 214 of the said Act, after sub-section (1) the Following sub-section shall be inserted, namely :-“
I should like to add a few words at the beginning.
“(1A) Act V of 1908. Subject to the provisions of the Code of Civil Procedure, 1908, or any law made by the Dominion Legislature, the Federal Court may also from time to time, with the approval of the Governor-General, make rules of court for regulating the manner in which any decree passed or order made by it in the exercise of its appellate jurisdiction may be enforced.”The object of clause 9 is to make the Federal Court a complete and independent Court. There were certain limitations under the existing Government of India Act, 1935 which prevented the Federal Court from. drawing up its own decrees. It had to send the matter to the Trial Court. All these limitations it is necessary to withdraw because the Federal Court is going to take the place of the Privy Council.
Mr. Naziruddin Ahmad: I beg to move:
“That in sub-clause (1) of Clause 9. in the proposed subsection (1) of section 209 of the Government of India Act, 1935, for the words ‘is necessary’ the words ‘as it may consider necessary, be substituted.”
The context where this occurs says ‘make such order as is necessary’. I wish to make it ‘as it may consider necessary’. This is the proper form. With regard to the large amendment moved by Dr. Ambedkar my-difficulty is,that there have been slight changes in the new draft which has been circulated and then again in moving sub-clause (4) of clause 9 some further changes have been made. I am not in a position to see the exact effect of this new change, orally introduced. I think he has introduced the words Subject to the provisions contained in the Civil Procedure Code 1908 or to any law or provision of law hereafter made by the Dominion Legislature. I think with regard to the latter condition, this is absolutely unnecessary. This clause 9 attempts to amend Section 205 of the Government of India Act. This Government of India Act will expire-we hope-on the 26th January or thereabout with the passing of India’s Free Constitution. Therefore this amendment introduced by clause 9 of the present Bill will have a very short life. It will give a new lease of life to the amended Section 205 of the Government of India Act which is again also to expire on the 26th January. During this short period I do not know whether it is intended to introduce law affecting Section 205. If this is to be done, it is to be done now in this House in the “Constitution” Section and not in the other aspect of this House viz., the “Legislative” Section. I feel that unless it is intended to introduce any fresh legislation to affect the situation within this short interval, I do not think there is any necessity for these conditions. I do not know what these words really imply. Do they imply anything practical or merely a kind of a safeguard against a thing which does not really exist ? I want only clarification. I do not move my other amendments Nos. 40 and 41.
Pandit Thakur Das Bhargava : Sir, I beg to move :
“That in sub-clause (1) of Clause 9, after the proposed new sub-section (1) of section 209 of the Government of India Act 1935, the following new sub-section be inserted :-
‘(1A) The Federal Court in the exercise of its criminal jurisdiction conferred on it by section 5 of this Act shall notwithstanding anything to the contrary in any law, be entitled to Pass any order of release or set aside any sentence or pass any other appropriate order which it considers just under the circumstances if it regards the provisions of the relevant law depriving life or personal liberty to be not consistent with reason and justice or the procedure observed as unfair or the detention as unreasonable or unjust”
With your permission as an alternative I beg to move the following No. 4 3.
The Honourable Dr. B. R. Ambedkar: That amendment, I submit, is outside the scope of the Bill. The Bill deals merely with
the transfer of jurisdiction.
Pandit Thakur Das Bhargava: It is not a question of transfer of jurisdiction. I only give what is contained in clause 5 and am defining what jurisdiction shall be conferred, not leaving it to investigation as to what the prerogative of His Majesty was, I am only making these powers in a concrete form from what it is in the abstract ……The Honourable Dr. B. R. Ambedkar: This Bill does not propose to give any direction to the Federal Court as to the manner in which they should exercise the jurisdiction with which they become vested under the present Bill.
Pandit Thakur Das Bhargava: When a Bill specifically speaks of conferring jurisdiction, it is the business of the law to expound and define what the jurisdiction is. I only condense the contents of that jurisdiction and make, it absolutely clear what that jurisdiction means.
Shri K. M. Munshi (Bombay: General) : May I rise to a point of order? This is-really speaking-bringing in the due process of law by the back-door, which was disposed of more than once and debated over and over again in this House. The proposal was disposed of some months ago and disposed of day before yesterday. The idea is to vest the Supreme Court with that power. This is, therefore, entirely out of Order, apart from the stand taken by Dr. Ambedkar.
Pandit Thakur Das Bhargava: My submission is that it is certainly not out of order on merits. The amendment says the Federal Court shall exercise all its criminal jurisdiction conferred by Section 5. Section 5 says
“As from the appointed day,the Federal Court shall, in addition to the jurisdiction conferred on it by the Government of India Act, 1935. and the Federal Court (Enlargement of jurisdiction) Act, 1947, but subject to the provisions of this section have the same jurisdiction to entertain and dispose of Indian appeals and petitions as His Majesty in Council has. whether by virtue of His Majesty’s prerogative or otherwise, immediately before the appointed day.”
Up to now this prerogative of the Crown or His Majesty included tins power of due process. At present this being enjoyed by the Privy ‘council. Clause 9(1) defines civil side powers. Clause 9(1) of the Bill reads as follows :
“It shall in the exercise of its appellate jurisdiction pass such decree or make such order as is necessary for doing complete justice.”
So, in regard to civil law the powers are given in 9(1). So this is perfectly in order.
Mr. President: This Bill is intended to transfer whatever power and jurisdiction the Privy Council has to the Federal Court. If the Privy Council has got the power you suggest in this amendment, that will be transferred to the Federal Court. If it is, not, the question is whether in this Bill you can enhance or extend the power of the Federal Court.
Pandit Thakur Das Bhargava: It is beyond my intention to enhance that power in clause 9(1). Power has been described as the power necessary for doing complete justice on the civil side. Similarly I want to declare what that power is in the exercise of the prerogative on the criminal side. Such powers are contained in the unwritten convention of England and we do not know specifically the full content of these powers but those conventions shall have to be imported and interpreted to defame the powers of the Federal Court. This is the time to interpret those powers and I am only making what is implicit in this clause explicit.
Mr. President: Is that implicit what you want to make explicit? If it is there, then it is quite unnecessary. If it is not there, you cannot add to it.
Pandit Thakur Das Bhargava: Dr. Ambedkar has moved a motion which shows what orders are necessary on the civil side in order to do justice. My suggestion is that the same thing may be done on the criminal side also. The civil side is being provided for. Why not the criminal side also ?Shri Alladi Krishnaswami Ayyar (Madras: General): We have mentioned what powers are necessary for doing complete justice. What my honourable Friend wants is to add to the existing
powers, and that is not permissible.
Pandit Thakur Das Bhargava: While they have made provision on. the civil side, they are silent on the criminal side. If the House does not agree, to my definition of these powers I am agreeable to cutting off the last three lines and say that in the exercise of its power, the Federal Court will be able to set aside any sentence or release any person.
Mr. President: This is a matter which we can consider when we are considering the powers of the Federal Court and then you might move an amendment giving the power you mention, to the Federal Court. But here we are, concerned only with the transfer of whatever power is vested in the Privy Council, to the Federal Court. Therefore the question you have raised does not arise here and I think it is ‘out of order.
Pandit Thakur Das Bhargava: So far as amendment 43 is concerned it deals with the special jurisdiction on the criminal side and you are not inclined to give permission to move it. But so far as 39 is concerned, which I have already moved, I do not think any objection can be valid. I am only declaring what on the criminal side, the powers ought to be according to the right interpretation of clause 5.
Mr. President : As regards 39, let me see.
Pandit Thakur Das Bhargava: Objection is taken only to 43, but not to 30.
Mr. President: How does it stand on a different footing? It also say “The Federal Court shall be entitled to pass any order which it considers just under the circumstances
Pandit Thakur Das Bhargava: It only shows what are the powers for doing complete justice on the criminal side.
Mr. President : I do not think this is the proper place where you can put this in. If you want to confer any power on the Federal Court, you can do it independently or when we are dealing with the powers of the Federal Court. but not while we are transferring whatever powers are possessed by the Privy Council, to the Federal Court.
Pandit Thakur Das Bhargava: All that I can submit, Sir, is that if it is permissible to mention the civil side under 209 (1), it is equally permissible to mention what are the powers, on the criminal side also.
Mr. President: What are you referring to ?
Pandit Thakur Das Bhargava: I am referring to clause 9 sub-clause (1) of the Bill.
Mr. President: It is nowhere stated, “Notwithstanding any law to the contrary etc.”
Pandit Thakur Das Bhargava : I want only the substance of the article to be put in and not the exact words.
Mr. President : You cannot bring it in this round-about way. If it is to be brought in it must be done in the proper way.
Pandit Thakur Das Bhargava : I may seek permission to eliminate the words “notwithstanding anything to the contrary in any law”.
Mr. President: The question is whether it is something in addition to the existing powers of the Federal court or not. If it is. an addition to the existing powers of the Federal Court, then we,cannot take it up. I have given my ruling.Shri Shankarrao Deo (Bombay: General) : Sir, you have already given your ruling and I do not know why the Member is persisting.
Pandit Thakur Das Bhargava: Sir, I have not caught what Mr. Shankarrao Deo is saying.
Mr. President : I cannot allow it. It is ruled out.
Well, these are all the amendments. Does any one wish to say anything? Well, I will put the amendments. First I put the amendment moved by Dr. Ambedkar. I suppose I need not read it. It is No. 37.
The question is :
That for clause 9, the following clause be substituted.
9. Amendments of the Government of India Act, 1935. (1) In section 205 of the Government of India Act, 1935 (hereinafter referred to as 26 Ged. e.c. 21 the said Act), for sub-section (2) the following sub-section shall be substituted. namely :-
“(2) Where such certificate is given, any party in a case may I to the Federal Court on the ground that any question as aforesaid has seen wrongly decided and, with the leave of the Federal Court on any other ground. “
(2)In section 209 of the said Act, for sub-section (1) and (2) the
following sub-section shall be substituted. namely :-
‘(1) Act V of 1908. The Federal Court in the exercise of its appellate jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, including an order for the payment of costs, and any decree so passed or order so made shall be enforceable throughout the territory of India in the manner provided in that behalf in the Code of Civil Procedure, 1908, or in such other manner as may be prescribed by or under a law of the Dominion Legislature, or subject to the provisions of any such law, in the manner prescribed by rules made by the Federal Court.’
(3)In clause (a) of sub-section (3) of section 210 of the said Act, for the word, brackets and figure “sub-section (2)”, the word, brackets and figure “sub-section (1)” shall be substituted.
(4)In section 214 of the said Act, after sub-section (1) the following sub-section shall be inserted, namely :-
“(1A) Act V of 1908. Subject to the provisions of the Code of Civil Procedure, 1908, or in any law made by the Diminion Legislature. the Federal Court may also from time to time, with the approval of the Governor-General. make rules of court for regulating the manner in which any decree passed or order made by it in the exercise of its appellate jurisdiction may be enforced.”
The amendment was adopted.
Mr. President: Then I put No. 38, Mr. Naziruddin Ahmad’s amendment.
The question is :
That in sub-clause (1) of Clause 9, in the proposed sub-section (1) of section 209 of the Government of India Act, 1935. for the words “is necessary” the words “as it may consider necessary” be substituted.
The amendment was negatived.
Mr. President: Then I put the clause as amended by Dr. Ambedkar’s amendment :
The question is
“That clause 9, as amended, stand part of the Bill.”
The motion was adopted.
Clause 9, as amended, was added to the Bill.Clause 10.
Mr. President: Then we take, up clause 10. Mr. Naziruddin Ahmad has an amendment. Do you want to move it ?
Mr. Naziruddin Ahmad: ‘No, Sir, but I would like to speak a few words.
I wish to oppose clause 10 on the ground, first, that it is unnecessary, and secondly, that it creates some amount of confusion. My reasons are that the Federal Court was constituted by the Government of India Act, 1935. In 1937, by the Adaptation Order in accordance with that Act, the Civil Procedure Code was amended. One amendment was the introduction of Section I II -A of the Civil procedure Code relating to the appeals to the Federal Court, and the other amendment was the addition of a new Rule 17 of Order XLV, which dealt generally with appeals to the Privy Council. The changes introduced by the Adaptation Order separated Federal Court appeals from those to the Privy Council. Before these adaptations, there were appeals to the Privy Council as well as to the Federal Court. But the procedure laid down in Sections 109, 110 and Ill of the Civil Procedure Code and in Order XLV of that Code was cumbrous. They were necessitated because ,some preliminary steps were necessary to be taken in India before an appeal to the Privy Council be taken. The Privy Council was situated at a distance of six thousand miles and therefore preliminary steps had to be taken in India. But after the creation of the Federal Court, as the Federal Court is situated within India, all the paraphernalia necessary in connection with Privy Council appeals ceased to be necessary. It was on account of this situation, and on account of the inconvenience caused to the parties who have one,, to go to the High Court and again to the Federal Court that Act XXI of 1941 was passed. That Act introduced radical changes in the existing- law so far as appeal from the High Courts to the Federal Court was concerned by enabling that Court to regulate its procedure by its own rules.
With regard to that Act XXI of 1941 there are only three sections to which I need refer. Section 2 repealed section 111A which had been introduced by the
Adaptation Order. Section 2 also repealed rule 17 of Order XLV which, as I have pointed out, had also been introduced in Order XLV of the Civil Procedure Code by, the Adaptation Order of 1937. Section 3 of Act XXI of 1941 gave power to the Federal Court to make Rules. On account of this the Federal Court made Rules in 1942 which have been amended and ,brought up to date from time to time. In these Rules all matters relating to appeals to the Federal Court have been exhaustively dealt with, both in civil and criminal cases. Therefore, the sections of the Civil Procedure Code which I have referred to, namely, sections 109, 110 and 111, and Order XLV which dealt with appeals to the Privy Council are inapplicable to the Federal Court.
What remain of these sections and of Order XLV merely relate to appeals to the Privy Council, and on account of the abolition of the jurisdiction of the Privy Council they would be dead letters and require to be repealed. But so far as the present purpose is concerned I submit that they are no longer applicable to present day circumstances. In the statement of Objects and Reasons of the Bill relating to Act XXI of 1941 it was stated :
“The Government of India (Adaptation of Laws) Order, 1937 added Section 111A and Order 45 rule 17 to the Civil Procedure Code and thereby made the Procedure of Privy Council Appeals applicable to Federal Court Appeals. The aforesaid procedure is cumbersome and dilatory. means for appeals to a Court six thousand miles away and should not be applicable to a court of appeal situated in India. Moreover, the addition of these provisions to the Civil Procedure Code have derogated from the powers of the Federal Court to regulate its own practice and procedure under section 214 of the Government of India Act and has been commented on unfavourably by the Federal Court in its decision in case No 15 of 1939, Lachmeshwar Prasad Shukul Vs. Basdeo Lal Choudhury. It is desirable therefore both from the points of view of Simplifying procedure in Federal Court Appeals and restoring to the Federal Court its powers to regulate practice a and procedure that the new additions to the Civil Procedure Code should cease to be operative.’I submit that these additions which have been made in the Civil Procedure Code would have been applicable to a Court situated far away. So this cumbersome procedure was abrogated by the Amendment Act of 1941. No reference at all would therefore be necessary. to the Code of Civil Procedure, because the rules of Civil Procedure relating to appeals are as prescribed by the Federal Court in the Federal Court Rules of 1942 by virtue of Act XXI of 1941. In these circumstances I submit that the only rules that should prevail are the Rules made by the Federal Court. As I have said, they cover civil and criminal cases. A mere reference to those Rules would satisfy the Honourable Member as to the accuracy of the statements made by me.
I submit that clause 10 which says that the Civil Procedure Code shall have effect with regard to practice relating to appeals would be improper. We have already in the previous clause-clause 9-added sub-section (1A) to section 214 of the Government of India Act which deals with procedure relating to appeals to the Federal Court. I submit therefore that there would be a confusion between the Rules framed by the Federal Court, which are all complete by themselves, and the Civil Procedure Code which is purported also to be made applicable. If we are left between these two, I should think that the Rules prescribed by the Federal Court, which are complete in themselves, should alone occupy the field and the reference to the Civil Procedure Code in clause 10 should be abrogated. I hope the Honourable Member will consider this suggestion and agree to the deletion of clause 10.
Shri Alladi Krishnaswami Ayyar: Mr. President, my Friend Mr. Naziruddin Ahmad is labouring under a misapprehension. So far as the Rules under the law, as understood prior to this Bill now before us, are concerned there was no direct enforcement of the decisions of
the Federal Court. The Federal Court has to send its judgment to the lower court for the necessary. Order being drawn up and there was no direct right of enforceability in regard to the judgments of the Federal Court. That is why that lacuna has been filled up by an earlier clause which has been passed, that is, it shall be enforceable and it is not merely sending the judgment to the lower court. There was an anomaly there, namely, of the High Court trying to give effect to the judgment of the Federal Court, but the Federal Court being powerless to ensure the enforceability of its own judgment or decree. That anomaly has now been removed because it has now been made enforceable. I am fairly certain that the Rules of the Federal Court did not and could not provide for that enforceability when the statute itself did not provide for the direct enforceability of the judgments of the Federal Court. Therefore, we have necessarily to provide for the proper machinery for the enforceability of the judgments of the Federal Court.
In the previous clause which has just been passed we have made a provision to the effect that the decree or order of the Federal Court shall be enforceable throughout the Dominion of India. Having made that provision, how is it to be enforced ? It has to be by a fresh Act passed by the Dominion Parliament. But until the Dominion Parliament passes some law, there must be some law in the field for the enforcement of the decrees passed by the Federal Court and there has to be adequate provision for their,enforceability. The object of this clause 10 is to apply, for example, Order XLV rule 15 so far as it may. For instance, the order of His Majesty in Council was directly enforceable under the provisions of Order XLV rule 15. It is merely to be sent to the High Courts in India and the High Courts in India will send them to the courts which originally passed the decree and they will enforce the decree. It is merely a question of adaptation. The provisions of the Civil Procedure Code in so-far as they will be applicable to the new circumstances will be applicable. At best all that can be said is “So far as it may be applicable”. Therefore it is an extension of provisions like rule 15 for the judgments of the Federal CourtLater on it will be open to the Dominion Parliament to pass any law at variance with or in addition to the procedure provided in rule 15. But at present we have not got the necessary time and no law has been passed.
Therefore, when once all the jurisdiction of His Majesty in Council is transferred to the Federal Court and when you have made a provision that all the judgments and decrees of the Federal Court shall be enforceable throughout the Dominion of India, there must be a proper machinery for the enforceability of those decrees. No doubt you have made a substantial provision to the effect that the judgment and the decrees of the Federal Court shall be enforceable throughout the Dominion of India. That is why reference has been made to the Code of Civil Procedure and to the Dominion Parliament. No doubt the rules must necessarily refer to any existing law. To prevent a further lacuna, provision is made for the rules.
Therefore, there are three things. One is the extent- to which the provision of the Civil Procedure Code can be adapted and extended to the judgment of the Federal Court; in the new dispensation the provisions of the Civil Procedure Code will apply. Secondly, there is the dominant power of the Legislature to intervene and to make appropriate changes. Subject to these, any rules of the Federal Court can be made if there is any lacuna in any of these provisions. Therefore the object is to complete the thing, namely that there will be a triple machinery for the enforcement of a decree. That is the object of the provisions.
Mr. President: Dr. Ambedkar, would you like to say anything?
The Honourable Dr. B. R. Ambedkar: No, Sir.
Mr. President : The question is : –
“That clause 10 stand part of the Bill.”
The motion was adopted.
Clause 10 was added to the
Bill.
Mr. President: Then-there is another amendment, a new clause to be added
Mr. Naziruddin Ahmad: I beg to move:
“That after, clause 10 the following new clause be added:-
’11. The Interpretation Act, 1899, applies for the interpretation of this Act as it applies for the interpretation of an Act of Parliament.’ “
Sir, we are by this Bill amending the Government of India Act to which the British Interpretation Act of 1899 applies. We have also passed two Acts in this House to amend the Government of India Act and we have made the Interpretation Act of 1899 to apply to the interpretation of those Acts. As this Bill is going to be incorporated largely into the body of the Government of India Act, it seems proper that the interpretation of it, if there is any. would depend upon the Interpretation Act of 1899. It would be highly anomalous if the main part of the Act would be interpreted in accordance with the Interpretation Act of 1899 and the other parts of that big Act which are to be filled up by this Bill,would be governed by the General Clauses Act. If we do not limit in any way the interpretation of this Act, the General Clauses Act will normally apply. It was under these circumstances that this rule of interpretation was made applicable in all other cases in a similar situation. Though it is very unlikely that any question of interpretation of this nature may arise, still it may be that some fine question may arise which may depend entirely on the Interpretation Act and as to which Interpretation Act will apply. So I think there should be one Interpretation Act which would beapplicable, namely the Act of 1899 and not the General Clauses Act of India. This, it seems to me, is a corollary to what we have already agreed in the past and in the circumstances of the case.
The Honourable Dr. B. R. Ambedkar: Sir, I do not accept that amendment, it is quite unnecessary.
Shri Alladi Krishnaswami Ayyar: Sir, I should just like to say a word or two with regard to this point. So far as the Interpretation Act is concerned, it can apply only to Acts of( the British Parliament. This is not an Act of the British Parliament, it is an Act of our Parliament and therefore you cannot extend the provision of the ‘Interpretation Act for the interpretation of a Dominion Act like this one. If any question incidentally arises as to the interpretation of a British Act for the purpose of construing this Act, you can always rely upon the interpretation Act. Supposing, for example, you have to refer to the Judicial Committee Act, the Judicial Committee Act will have necessarily to be construed in the light of the Interpretation Act because that will always be available. This particular Act is an Act of the Dominion Legislature and therefore the General Clauses Act is made applicable. Between the two there is no kind of lacuna. When any question comes up before the Federal Court, it will either be an Act of the British Parliament in which case the Interpretation Act will continue to be applicable, or it is an Act of the Dominion Legislature in which case the General Clauses Act is applicable. Therefore, under these circumstances, I submit there is absolutely no reason for this amendment.
Mr. President: The question is:
‘That after clause 10, the following new clause be added
’11. The Interpretation Act, 1899, applies for the interpretation of this Act as it applies for the interpretation of an Act of Parliament.”‘
The amendment was negatived.
Clause 1.
Mr. President: Then we go to clause I.
Mr. Naziruddin Ahmad: Sir, I move:
.’That in sub-clause (1) of Clause 1, for the words ‘Abolition of Privy Council Jurisdiction Act’ the words and brackets ‘Privy Council (Abolition of Jurisdiction) Act’ be substituted.”
Sir, in all cases where we have passed amending Acts, we have always named the Act by the most important condition first of all and then with the detailed description of it within brackets. I have a list of Acts of the year 1947. We have Act XII entitled “Railways (Transport of Goods) Acts,” we have
Act XV, “Armed Forces (Emergency Duties) Act”, we have Act ‘XXIV, “Rubber (Protection and Marketing) Act”. and there are many Acts with titles like this. I therefore submit that this nomenclature should be accepted.
Sir, I also move my other amendment :
“That after sub-clause (2) of Clause 1, the following new sub-clause be added
‘(3) It shall also apply ‘to Indian appeals and Indian petitions arising out of cases originating in Courts in the acceded States.”
I do not know whether the acceding States are already governed by the Federal Court. I have no clear idea. I want by this amendment to seek clarification. If this is accepted then amendment No. 4 will have to be accepted as necessary corollary.Mr. President: Do you wish to say anything about this?
The Honourable Dr. B. R. Ambedkar: The emphasis is on the abolition of the jurisdiction of the Privy Council, and obviously that emphasis could not be realised if the words “abolition of jurisdiction” were put in brackets.
Mr. President: Do you wish to say anything about the 7th amendment
The Honourable Dr. B. E.. Ambedkar: Sir, the acceding States were never subject to the jurisdiction of the Privy Council. But as a measure of extreme caution, it will be seen that in sub-clause (2) the words used are “within the territory of India”. Therefore, it is unnecessary to make any mention of the acceding States.
Mr. President : I shall now put the amendments to vote.
The question is :
“That in sub-clause (1) of Clause 1, for the words ‘Abolition of Privy Council Jurisdiction Act’ the words and brackets ‘Privy Council (Abolition ‘Of Jurisdiction) Act’ besubstituted.”
The amendment was negatived.
Mr. President : The question is :
‘That after sub-clause (2) of clause 1, the following new sub-clause be added :-
‘”(3) It shall also apply to Indian appeals and Indian petitions arising out of cased originating in Courts in the acceded States.”
The amendment was negatived.
Mr. President : The question is :
“That Clause 1 stand part of the Bill.”
The motion was adopted.
Clause I was added to the Bill.
TITLE AND PREAMBLE
Naziruddin Ahmad : I do not wish to move my amendment to the Preamable.
Mr. President : The question is
“That the Preamble stand part of the Bill.”
The motion was adopted.
The Preamable was added to the Bill.
Mr. Naziruddin Ahmad: I do not wish to move my amendments to the Title.
Pandit Thakur Das Bhargava : I do not wish to move my amendments to the Title.
Mr. President.- The question is
That the Title stand part of the Bill.”
The motion was adopted.
The Title was added to the Bill.
The Honourable Dr. B. R. Ambedkar : Sir, I move
“That the Bill, as amended, be passed.”
Mr. Naziruddin Ahmad: The motion should have been:
“That the Bill as settled in the House, be passed.’Mr. President: That is the motion in the Order Paper-
“That the Bill, as settled by the Assembly, be passed.”
Shri K. M. Munshi: Mr. President, Sir, I would like only to say a few words on this occasion when we are passing a Bill which will end our connection with the Privy Council which has been our highest court for about one hundred and fifty years. I share the gratification of this House as well as perhaps the gratification of this country that our Supreme Court in the future, and to a qualified extent the Federal Court in the present, will be completely independent of the Privy Council. I may take this opportunity of making a few observations on this point when we are parting company with the Privy Council.
Sir, though we are quite happy that we are becoming completely independent in the matter of the Judiciary, parting with the Privy Council-I am sure it is not my feeling alone, but the feeling of all members of the Bar in India-is not a matter which can be gone through without a pang. Most of us have looked to the Privy Council for the last century or so with great respect. If I may say so personally for several years in the beginning of my professional life, I have read in those
beautiful thin volumes of the Indian Appeals, the masterly judgment which go to make up practically the fountain-source of our law in India.
Sir, the British Parliament and the Privy, Council are the two great institutions which the Anglo-Saxon race has given to mankind. The Privy Council during the last few centuries has not only laid down law, but coordinated the concept of rights and obligations throughout all the Dominions and Colonies in the British Commonwealth. So far as India is concerned, the role of the Privy Council has been one of the most important. It has been a very great unifying force and for us Indians it became the instrument and embodiment of the rule of law, a concept on which alone we have based the democratic institutions which we have set up in our Constitution.
Sir, on the 26th of January our Supreme Court will come into existence and it will join the family of Supreme Courts of the democratic world of which I the Privy Council is the oldest and perhaps the greatest. I can only hope and trust that though we part with the Privy Council our Supreme Court will carry forward the traditions of the Privy Council, traditions which involve that judicial detachment, that unflinching integrity, that subordination of everything to the rule of law and that conscientious regard for the rights and for justice not only between subjects and subjects but also between the State and the subjects. And no higher tribute can be paid to the Privy Council than my hope that our Supreme Court may be given the strength to maintain the traditions of fearless justice which have prevailed in this country as a result of the supremacy of the Privy Council.
With these words, Sir, I support the motion that has been moved by my honourable Friend, Dr. Ambedkar.
Shri Alladi Krishnaswami Ayyar: Mr. President, it is the object of this measure to abolish the jurisdiction of His Majesty in Council from the appointed day, and place the Federal Court in, exactly the same position as the Privy Council. The Bill when passed into law will facilitate the transition to the New Constitution under which the Supreme Court is invested with the sole and exclusive jurisdiction in constitutional and other matters and is constituted the final court of appeal of not merely what are now provinces under the present regime, but also of Indian States.The only difference between the regime under the New Constitution and ,this Bill is that whereas under the New Constitution the Supreme Court will be the final court of appeal not only from the High Courts in what are known ,as the provinces, but also from High Courts in the Indian States, at present the jurisdiction of the Federal Court is confined to matters which arise or might arise under the Instrument of accession of the different States. Instead of detailing the various heads of jurisdiction, reference is made in clause 5 to all heads of jurisdiction which His Majesty in Council has been exercising before the appointed date.
There is one point which is a very important one and which I alluded to in the course of the discussion, namely, that the judgment of the Federal Court shall be enforceable throughout the Dominion of India and appropriate provision has been introduced to make the judgment enforceable.
Then. I wish to make only one or two general observations. The Bill, in anticipating the provisions relating to the powers and jurisdiction of the Supreme Court, marks the final stage in the history of the relations between the Courts in India and the. Privy Council and gives effect to the Principle of judicial autonomy which is becoming an essential feature of dominion status even in Dominions which acknowledge allegiance to the British Crown. Whatever might be said about the executive government under the regime which has come to an end with the Indian Independence Act, there can be no doubt that taking a broad and disinterested view of the matter, the record of the Judicial Committee of the Privy Council has been a splendid one. The reports enshrined in the volumes of Moore’s Indian
Appeals and later in the Indian Appeals, bear ample testimony to the worth of the Privy Council. They have enriched Indian jurisprudence in many respect including our personal law. I may mention here that in the law of Adoption itself, though earlier, owing to an imperfect understanding of the Hindu law a broad view was not taken, they have since taken a broader view even before the Indian High Courts took such a step. It has rendered notable judgments in the field of the Statute Law of India too. It has contributed very much to the development of the commercial law of India. Occasionally there might have been legitimate complaints in regard to matters affecting the liberty of the subject in which the Judicial Committee has not always taken a view which has commended itself to the Indian people. But, on the whole, the verdict of history would be in favour of the Judicial Committee and there can be no more illustrious example for our Federal Court and Supreme Court to follow than the Judicial Committee of the Privy Council.
There is however, one point which I would like to emphasise viz., either the Federal Court or the Supreme Court must not blindly follow the precedents of the Judicial Committee. It is hoped that both the Federal Court and the Supreme Court will evolve a jurisprudence suited to the genius of the people and the conditions of our country. The Federal Court now and the Supreme Court under the new dispensation will occupy a position of unique importance and the verdict of history would largely depend upon the independence, the ability and the learning which they would bring to bear upon their task.
