Report No. 189

The Constitution and after

The debates in the Constituent Assembly preceding the making of the Constitution of India witnessed interesting exchanges amongst the distinguished gathering. Article 22 (1) was Article 15-A in the Draft Constitution and provided that "no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult a legal practitioner of his choice".

Dr. Ambedkar was conscious of the criticism that had resulted from the omission of "due process" from Article 21 (Article 15 in the Draft Constitution). Therefore, when the debate on Article 15-A was to commence he pointed out that it was being introduced in order to make "compensation for what was done then in passing Article 15. In other words, we are providing for the substance of the law of 'due process' by the introduction of Article 15-A".

He further pointed out that "Article 15-A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilized country follows as principles of international justice", viz., the right of a person arrested to be informed of the grounds of arrest and the right to be defended by a legal practitioner of his choice. It may be noted that clause (a) of Article 22 of the Constitution creates only two exceptions and they are (a) enemy alien and (b) persons detained under preventive detention laws. They have no right to consult a lawyer nor be defended by a lawyer nor produced within 24 hours before a Magistrate.

The Constitution recognised importance of access to justice to courts, particularly the High Courts and the Supreme Court. The right under Article 32 to petition the Supreme Court for enforcement and protection of a fundamental right is itself a fundamental right. In re under Article 143, Constitution of India, (Keshav Singh case) (AIR 1965 SC 745), the Supreme Court said "The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the court in that behalf." Kesavananda recognised judicial review as part of the basic structure of the Constitution, a position that has been reaffirmed by a bench of seven judges in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.