I would have very much liked to retain the words “due process of law” in the original article itself, but unfortunately our other friends differed and ultimately the House accepted the change of expression “procedure prescribed by law”. My honourable Friend, the Chairman of the Drafting Committee himself felt that it was too wide and therefore there was not that guarantee of expression in article 15 as modified and which might not be a fundamental right, because Parliament can do whatever it likes. Therefore there is not anything like an inherent right which Parliament cannot remove. Another fundamental to be incorporated or implemented in a clause in the Constitution must be such as cannot be taken away by a provision of Parliament except under exceptional circumstances. That kind of limitation is not there in article 15 as passed. That is why the Honourable Dr. Ambedkar and the Drafting Committee have thought it to add these clauses by way of caution. It is no doubt true that these clauses find a place in the Criminal Procedure Code today but the necessity of incorporating these in the Constitution itself is this. It might be possible that what is now prevalent or what now obtains in the Code might itself be modified. As a matter of fact, many of my friends want some more restrictions to be imposed here, to prevent Parliament later on from modifying the rules and the Criminal Procedure Code in such a manner that the safeguards might be taken away. For instance, exception is taken to the words “as soon as may be”. They want it to be done within 24 hours. I find there is a practical difficulty in this matter. Under section 107 of the Criminal Procedure Code, as soon as a man is arrested, he must with reasonable speed be taken before a Magistrate. It does not matter whether that Magistrate has jurisdiction over that case or not. There is that lacuna. But a Third Class Magistrate-unless a Second Class Magistrate is empowered-would not be authorised to commit or remand the prisoner into custody for a period of 15 days. Under the existing Criminal Procedure Code this is a defect. The man who is not in charge, who will not ultimately take the responsibility for hearing the case may remand to police custody for a further period of 15 days. There it is. In section 167 it is clear that the police who make an application that the accused must be further remanded to custody, must lay sufficient grounds before the Magistrate, the information that they have, the accusation against him, the charges that will be ultimately developed–all these matters have to be placed before the Magistrate to enable him to come to a conclusion as to whether it is necessary to remand the accused further for a period of 15 days. It may be possible for the police officer to give that information straightaway, in which case, the amendment asking for information within 24 hours is legitimate. But there may be cases where it may not be possible to give that information. The very object of remanding will be frustrated by giving the information straightaway within 24 hours. What is the object of remanding a man to custody? It is to prevent him from tampering with the evidence that might be possible. In very serious cases this is a handicap. The man accused very often interferes with evidence and makes it impossible for that evidence to come about.
