REVIEWS

INDIAN CONSTITUTIONAL LAW By M.P. Jain, N.M. Tripathi Private

Ltd., Second ed. (1970) pp. XXXIII and 582. Rs. 40.

THE SERVICE of India means the service of the millions who

suffer. It means the ending of poverty and ignorance and disease
and inequality of opportunity. The ambition of the greatest man
of our generation has been to wipe every tear from every eye.
That may be beyond us, but as long as there are tears and suffer-
ings, so long our work will not be over.
Jawaharlal Nehru.

These words of the first Prime Minister of India show the resolve of the
Indian leadership to march towards a just social order. The Constitution
which it gave to free India was bound to reflect this determination. India
is perhaps the only country among those liberated after the second world
war which has remained democratic consistently despite various challenges.
She has been successfully using law as an instrument to bring about profound
social and economic transformation. This makes the Indian constitutional
experience a fascinating subject for study. It is no wonder that so many
eminent Indian and foreign scholars should have been provoked to write
discourses on the Indian constitutional experience.
Dr. M.P. Jain has doubtless earned recognition as one of the front
ranking legal scholars of India. His other works include a book on Indian
legal history1 and a number of articles in Indian and foreign legal periodicals.
Recently a book on administrative law, which he has written jointly with
Dr. S.N. Jain, Acting Director of the Indian Law Institute, has also came
out.2 Indian Constitutional Law in its first edition had acquired a reputation
as one of the most comprehensive critical commentaries on the subject.
It is most often cited in Indian legal literature. Since he wrote the first
edition, many changes have taken place in constitutional law. The second
edition which has now been published was long overdue.
The book is divided in seven parts as follows: (/) Introductory, (ii)
The Central Government, (///) The State Government, (iv) The Federal
System, (v) Political and Civil Rights, (vi) Miscellaneous Topics and (v/7)
Constitutional Interpretation and Amendment. The author does not
comment article by article treating each article as a unit by itself. This form

1. M.P. Jain, Outlines of Indian Legal History, N.M. Tripathi Private Ltd., (2nd
ed. 1966).
2. M.P. Jain and S.N. Jain, Principles of Administrative Law. N.M. Triptathi
Private Ltd. (197J).
302 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14:2

of writing, which is very common among Indian legal writers has been
rejected by the author because it "fails to give a coherent and integrated
picture of the Constitution." 3 The author treats the subject topically and
thereby presents a very comprehensive and thoughtful analysis of the
constitutional processes. The arrangement of chapters which the author
has followed is, however, not happy. The division between the central
government and the state government is artificial. Since the author has
dealt with the distribution of power between the central government and the
state governments in the chapter on the federal system, there was no need to
deal with these two governments in separate chapters. This leads to unnece-
ssary repetition and disintergrativeness. The process of law making by
Parliament is similar to that of the state legislatures. There was no need to
mention it at two places. Similarly the law relating to privileges of the legisla-
tures could have been discussed at one place. There was no need to discuss
the judiciary under two heads, the union judiciary and the state judiciary.
It is well known that the Constitution does not have a two tier system for the
judiciary. The President's powers have been discussed at various places.
For example, his power to dissolve the legislature has been discussed in the
chapter on the legislature whereas his other powers have been discussed in
the chapter on the executive. The grouping of subjects like citizenship,
elections, fundamental rights, government services in one part under the
title 'Political and Civil Rights' is confusing. The provisions in the chapter
on elections, barring two which are given in articles 325 and 326, deal with
the conduct of elections and the methods of settling disputes arising from
elections. They do not confer any rights. The directive principles
are not in the nature of rights. The fundamental rights, because of their
special importance deserve a separate treatment. It is difficult to defend
the inclusion of the rights of government servants in this part. The chapter
on constitutional interpretation has been unnecessarily grouped with the
process of constitutional amendment. These organisational defects however
have in no way robbed the work of its intrinsic value. They have been
mentioned because it was felt that with a little different break-up of the
subject the exposition would have become much more meaningful.
A constitution drafted in the fifties of the present century could not be
written on a clean slate. The Constitution of India had to be drafted in the
light of the constitutional experience of other advanced countries, the
Indian experience prior to independence and the urges and the aspira-
tions of the Indian people. The Constitution is not "just a blind and slavish
imitation of other Constitutions" but in many respects "strikes new paths,
new lines of approach and patterns." 4 The author describes with meticulous
detail the constitutional experience of other countries with a view of provid-

3. See, preface to the first edition of M.P. Jain, Indian Constitutional Law (1962)
quoted in the preface to the second edition, M.P. Jain, Indian Constitutional Law (1970
ed.) (hereinafter cited as Jain).
4. Jain at 3.
1972] REVIEWS 303

ing an insight into the choices made by the makers of the Indian Constitution
and the departures which the Constitution makes from the established
constitutional patterns.
In spite of its meticulous detail and near exhaustive specificity, the
Constitution contains large leeways. There is nothing unnatural in this
because some amount of vagueness and ambivalence is inevitable in any
human drafted legislation. A Constitution is more prone to this because
it is intended to state not rules for the passing hour but priciples for an
expanding future.5 The very vagueness of a constitution is its strength
because it gives it a rare adaptibility and capacity to respond to the
changing social conditions. Dr. Jain deals with all such important
questions and suggests the lines along which the Indian constitutional law
should develop.
Although by convention, the President is to act on the advice of the
council of ministers, the Constitution does not say so unequivocally. This
has, therefore, been a subject of controversy right since the days of the first
President of India, Dr. Rajendra Prasad. Two views on this subject are
possible.6 However, the view that the President is bound to act on the
advice of the council of ministers is more in harmony with the parliamentary
form of government which the Constitution has adopted. Dr. Jain takes
this view and gives convincing grounds to support it. Wherever there are
provisions that seem to contradict the above premise, he cautions against
their literal interpretation. For example, the President enjoys the right to
send messages to either house whether with respect to a bill pending in
Parliament or otherwise.7 Such a provision exists in the United States
because there the executive is altogether separate from Congress and hence
the presidential messages are a means of communication between the execu-
tive and the legislaure. This kind of provision is, however, not relevant in
India where the President acts on the advice of the ministers who are mem-
bers of the legislature. Should the President be exercising such a power,
there will result "a first class constitutional crisis."8 The author, therefore,
hopes that this power would be rarely used and except in an exceptional
situation "would lie dormant." 9 The author's position on the constitutional
role of the President has been by and large vindicated by a recent decision
of the Supreme Court.10

5. Cardozo, The Nature of the Judicial Process, 83 (1921).

6. For a most recent discussion of the constitutional powers and role of the President,
see, Henry W. Holmes, Jr. Powers of the Indian President: Myth or Reality, 12 J J.L.I.
367 (1970).
7. Art. 86(2).
8. Jain at 29.
9. Ibid.
10. In V.N.R. Rao v. Smt. Indira Gandhi, A.I.R. 1971 S.C. 1002, the Supreme
Court held that art. 74(1) is mandatory and, therefore, the President cannot exercise the
executive power without the aid and advice of the council of ministers. Any exercise
of the executive power without such aid and advice will be unconstitutional.
304 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 14:2

The Governor's position became very much controversial in recent

years. After the fourth general elections when the non-Congress parties
came to power in various states, the Governor was required to do a good
deal of tight rope walking. He has to act in a dual capacity, one as an agent
of the federal government and second as the constitutional head of the state
of which he is the Governor. This made his position all the more difficult.
As an agent of the President he is required to reserve certain bills passed by
the state legislature for the assent of the President.11 He is also required to
watch the performance of the state government and report to the President
when he finds that the state government is not functioning in accordance
with the Constitution.12 Obviously he cannot discharge such functions
according to the advice of the council of ministers only. As most of the
state governments were constituted of a number of splinter groups which had
nothing in common except the desire to share the power, they were bound to
be unstable. The members freely resorted to floor crossing giving their
loyalty and support to the highest bidder. The Governors had to perform
the unpleasant task of reporting such matters to the President. Unfortu-
nately the actions of the Governors have lacked consistency and, therefore,
they failed to lay down healthy conventions. The author critically examines
the actions of the Governors in various situations and pleads for the formu-
lation of healthy conventions to guide the Governors.
The author points out how members of the legislature misuse their
privileges which have been secured to them so as to enable them to dis-
charge their functions effectively. He also criticises the existing fluid nature
of the legislative privileges and suggests that they be codified. The codi-
fication in his view will provide better protection to the press as well as to the
citizens. In order to make this possible he suggests that clause(2) of article
19 of the Constitution be amended so as to permit reasonable restrictions on
freedom of speech and expression.13
The part on the federal system has been extremely well written. The
author points out that the tendency of the Constitution is "towards centrali-
sation within a federal pattern and framework."14 One interesting obser-
vation is that all disputes regarding the distribution of power have been
agitated in private litigation only. Inter-governmental legal controversies
which are quite common in other federations have been rare in India. The
author tellingly illustrates how Indian federalism differs from the established
patterns of federalism. For example, article 252(1) provides for delegation
by two or more state legislatures to Parliament of power to legislate with
respect to a matter in the state list in relation to such states. The author
tells us that "no such provision authorising states to delegate power to the
centre exists in the U.S.A."15 The Indian provision is "a close replica of the

11. See, arts. 31 A, 200, and 254(2).

12. Art. 356.
13. Jain at 88.
14. Id. at 273.
15. Id. at 317.
1972] REVIEWS 305

Australian model," 16 but while such a provision has never been used in
Australia, it has been used quite a few times in India. The Indian Consti-
tution envisages a co-operative federalism. The author discusses how
the pendulum has swung from competitive federalism to co-operative federa-
lism in countries such as Canada, the United States and Australia and
high-lights the Indian provisions which lay emphasis on the co-operative
element.
Dealing with the question whether the Indian Constitution is federal,
the author says :
If the essence of federalism is the existence of units and a centre,
with a division of functions between them by the sanction of the
Constitution, then these elements are present in India. In
normal times, the states in India have a large amount of autonomy
and independence of action. They have control over most of
the nation building activities. They have full fledged parlia-
mentary form of government. At no time are they regarded
as delegates or agents of the centre.17

It is well known that the British constitutional experts as well as

politicians did not concede the Indian demand for a bill of rights because
they honestly felt that a bill of rights either would constitute a mere string
of platitudes or would obstruct effective legislation.18 However, most
former colonies of the British empire have incorporated the bill of rights
in their constitutions after independence and Britain has accepted the
usefulness of such declarations, though initially only for export, now even
for its own use since it has become a member of the European Commission
on Human Rights.19 The chapter on fundamental rights was included in
the Indian Constitution in response to the long standing demand of Indian
opinion. A declaration of fundamental rights was intended to make
these rights unassailable even by the legislature. It is, however, clear that
the framers of the Constitution did not want to make them beyond the reach
of the process of constitutional amendment. In Golak Nath v. State of
Punjab,20 the Supreme Court held by a majority of six to five judges that
Parliament cannot amend the Constitution so as to take away or abridge
the fundamental rights. The court based its decision on the premise that
if fundamental rights are to be really fundamental, they should not be abridged
even by a consitutional amendment. This decision has raised a nation-
wide controversy. The author subjects this decision to a critical examination.
He takes objections to the legal interpretation as well as to the policy premise

16. Ibid.
17. Id. at 425.
18. See, Joint Committee on Indian Constitutional Reform, Part I para 366 (1934).
19. S.A. de Smith, Fundamental Rights in the Commonwealth, 10 l.C.L.Q. 83,
215 (1961).
20. A.I.R. 1967 S.C. 1643.
306 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 1 4 : 2

adopted by the majority. He admires the positive implication of the Golak

Nath decision. If fundamental rights cannot be taken away or restricted
even by a constitutional amendment, the court would have to interpret them
in such a manner as to accommodate legitimate social and economic change.
This according to the author "throws a great responsibility on the Supreme
Court." 21 This reviewer had also felt, as the author does, that the major
responsibility for keeping the Constitution and particularly the fundamental
rights abreast of the times would fall on the Supreme Court in view of
the constitutional amendment becoming politically difficult.22 Political
events of the recent months, particularly the massive majority won by the
ruling Congress party in the Lok Sabha have, however, proved beyond
doubt that the initiative for constitutional change is bound to remain with
Parliament for quite some time. Moreover, it is respectfully submitted that
the Court failed to fulfil the promise it held out in Golak Nath. The heavy
emphasis on the property rights which it laid in its recent decisions23 belied
all hopes of its becoming an equal partner with Parliament in the Indian
endeavour to usher in a new social order based on justice, social, economic
and political. The court would have done a great service to the Indian
Constitution in general and to fundamental rights in particular had it
shown greater deference to the will of the legislature in matters affecting
economic rights. An over enthusiastic insistence on the sanctity of property
rights may now result in total emasculation of those rights. A constitutional
amendment seeking a total watering down of the due process in respect of
private property has been introduced in the Lok Sabha.24 A hope that the
court will strike down these amendments on the ground that they are
incompatible with the Golak Nath decision, if it comes true, will give rise to
an unfortunate confrontation between Parliament and the Supreme Court.
It is needless to say that in any such confrontation the court stands to lose
because it is inherently a weak body.
Dr. Jain deserves congratulations as well as our thanks for bringing
out the second edition of this extremely lucid and most comprehensive
critical commentary on Indian constitutional law. It will serve the needs of
all those who are interested in undertaking a serious study of this constantly
developing subject.
S. P. Sathe*
21. Jain at 790.
22. See, S.P. Sathe, Fundamental Rights and Amendment of the Indian Constitution,
61 (1968); Amendability of Fundamental Rights: Golak Nath and the Proposed Constitu-
tional Amendment, (1969) S.C J. 33 at 40-41.
23. These decisions are R.C Cooper v. Union of India, A.I.R. 1970 S.C. 564
(popularly called the Bank Nationalization case) and H.H. Madhav Rao Scindia v.
Union of India, A.I.R. 1971 S.C. 530 (popularly called the Privy Purse case). See,
comments on these two cases, S.P. Sathe, Right to Private Property, Some Issues,
Economic and Political Weekly, Vol. V May 2, 1970 and The Privy Purse Judgement
Economic and Political Weekly, 2026 N o . 51 (Dec. 19, 1970).
24. The Constitution (Twenty-fifth) Amendment Bill which was introduced in the
Lok Sabha on Wednesday, 28th July, 1971.
* Reader, Department of Law, University of Bombay.