On 8th November 1948, Mr. Z. H. Lari [UP Muslim] at the Constituent Assembly spoke as follows:
“The second admission he made is Constitutional morality is not a natural sentiment it has to be cultivated, we must realise that our people have yet to learn [CF Section 491 of the Code of Criminal Procedure].”
I say not only the people even our Government have to learn it. To prove this I will cite only two instances. The House will remember that in Calcutta – in Bengal – High Court was seized of a case and had appointed a full bench to decide as to what is the effect the word “reasonable in an enactment dealing with government’s power to arrest and detain.” The Bench was to meet only next day but the Government came out with an ordinance laying down that the word reasonable shall be held to have been deleted. No doubt, as the High Court remark in that case “his Excellency the Governor of the Province was fully within his right to enact an ordinance but it was against Constitutional morality. The second instance which I would place before the House is that the head of an autonomous institution – I mean the Aligarh University was only the other day asked to quit and give place to another man although that head had the confidence on the University, Court and of the community to which the institution appertain. I say therefore in assessing the value of the provision we have to keep in view these two admissions made by the Honourable Minister as well as recent working of the democracy during the last 15 months.”
“Now the first requirement of a Citizen is there must be security of life and there must be safeguard of liberty. This August House when considering the Draft Fundamental Rights laid down that nobody should be deprived of life and liberty except in accordance with “the due process of law” now those words have been substituted by the word “procedure established by law.” That absolutely nullifies intention of those wanted this article to appear in the Constitution. The moment you say that the person may be deprived of personal liberty and life “in accordance with the procedure it becomes open to the Legislature to frame any legislation affecting life and liberty. That nullifies the very intention. Therefore the substitution of the original Clause is absolutely essential. In the Introduction the Draft Constitution reference made to the Japanese and Irish Constitution but those responsible for those Constitutions and laid down a procedure itself. For instance is laid down there that everybody arrested shall have the right to be given a cause of arrest and he will have the right to get it adjudicated by Courts. Therefore so far as Japanese and Irish Constitution are concerned they have laid down the procedure and after laying down the procedure the Constitution says, “Nobody can be deprived of life and liberty except in accordance with the procedure as established by law” I submit that examples of Ireland and Japan have no relevance.”
Comment: As a Speaker of the Assembly once remarked that the Drafting Committee has exceeded its limit ignoring the fact and dictum due process of law. Copying by itself is not bad but it should be copied with the mastery of facts.