DRAFT CONSTITUTION 1027
With regard to the review of the cases of detenus, there again, I do not see why it should not be possible for either the provincial Governments in their own law to make provision for periodical review or for Parliament in enacting a law under clause (4) to provide for periodical review. I think this is a purely administrative matter and can be regulated by law.
My Friend Mr. Ananthasayanam Ayyangar, said that I really do not have much feeling for the detenus, because I was never in jail, but I can tell him that if anybody in the last Cabinet was responsible for the introduction of a rule regarding review, it was myself. A very large part of the Cabinet was opposed to it. I and one other European member of the Cabinet fought for it and got it. So, it is not necessary to go to jail to feel for freedom and liberty.
Then there is another point which was raised by my Friend, Mr. Kamath. He asked me whether it was possible for the High Courts to issue writs for the benefit of the accused, in cases of preventive detention. Obviously the position is this. A writ of habeas corpus can be asked for and issued in any case, but the other writs depend upon the circumstances of each different man, because the object of the writ of habeas corpus is a very limited one. It is limited to finding out by the Court whether the man has been arrested under law, or whether he has been arrested merely by executive whim. Once the High Court is satisfied that the man is arrested under some law, habeas corpus must come to an end. If he has not been arrested, under any law, obviously the party affected may ask for any other writ which may be necessary and appropriate for redressing the wrong. That is my reply to Mr. Kamath.
Sir, I hope that with the amendments I have suggested the House will be in a position to accept the article 15A.
Mr. President : I will now put the amendments to the vote.
The Honourable Dr. B. R. Ambedkar : They might all be withdrawn.
Mr. Naziruddin Ahmad (West Bengal : Muslim) : New clauses have just been added. Will they be put to the vote now ?
Mr. President : Yes, just now ?
*Mr. President : The question is :
“That in amendment No. 1 above, in clause (1) of the proposed new article 15A, for the words ‘a legal practitioner of his choice’ the words ‘and he defended by a legal practitioner of his choice in all criminal proceedings and trials’ be substituted.”
*CAD, Vol. IX, 16th September 1949, p. 1566.