DRAFT CONSTITUTION 1013
an enemy alien. I do not think that there could be any further objection to the reservation made in clauses (3)(a) in respect of an enemy alien.
With regard to sub-clause (b) of clause (3) I think it has to be recognised that in the present circumstances of the country, it may be necessary for the executive to detain a person who is tampering either with public order as mentioned in the Concurrent List or with the Defence Services of the country. In such a case I do not think that the exigency of the liberty of the individual should be placed above the interest of the State. It is on that basis that sub-clause (b) has been included within the provisions of clause (3).
There again, those who believe in the absolute personal liberty of the individual will recognise that this power of preventive detention has been held in by two limitations : one is that the Government shall have power to detain a person in custody under the provisions of clause (3) only for three months. If they want to detain him beyond three months they must be in possession of a report made by an advisory board which will examine the papers submitted by the executive and will probably also give an opportunity to the accused to represent his case and come to the conclusion that the detention is justifiable. It is only under that that the executive will be able to detain him for more than three months. Secondly, detention may be extended beyond three months if Parliament makes a general law laying down in what class of cases the detention may exceed three months and state the period of such detention.
I think, on the whole, those who are fighting for the protection of individual freedom ought to congratulate themselves that it has been found possible to introduce this clause which, although it may not satisfy those who hold absolute views in this matter, certainly saves a great deal which had been lost by the non-introduction of the words ‘due process of law’. Sir, I commend this article to the House.
*Pandit Thakur Das Bhargava : ...The House has just heard the speech of the honourable Mover of the main motion. I need not recall to the memory of the House the heated controversy which raged about a year and a quarter ago round the words ‘due process of law’. Now a substantive part of the ‘due process’ has practically been given up after 70 per cent, being secured in article 13. I should think that in the circumstances of our country, this provision of ‘due process’ is certainly necessary cent per cent. It is the only right process in this country....
*CAD, Vol. IX, 15th September 1949, pp. 1500-1501.