17

CHAPTER~2

HISTORICAL RETROSPECT

"The State is neigther the handiwork of God, nor the result r~f

superior physical force, nor the creation of resolution or

convention, nor a mere expansion of the family. The State is not
a mere artificial mechanical creation or invention but an
institution of natural grovvth or historical evolution. "
Dr. Garner

I. Origin and Evolution of the State

There is no denying the fact that it is really a very difficult task to trace
the origin of a social phenomenon. For long, Political thinkers have been
taking pains in digging out the secrets related to the origin of the State. Some
of them believe that the secrets related to the origin of the State lie in the
hands of God, where as others believe that they lie in the social contract. While
. still others argue in favour of the role played by a single force the family or
the process of evolution. The recent researches in the moden1 sciences, namely,
Anthropology, Ethnology and Comparative Philosophy, throw a shade oflight
on the origin of the State. But it is not sufficient. The emergence of the State
is not yet historically determined. In this connection, Professor R.N. Gilchrist
has very aptly remarked, " of the circumstances sunoundings the davm of
political consciousness, we know little or nothing from histmy. Where history
fails we must resort to speculation." 1 No doubt it is tlue that the Historical and
Evolutionary Thoery has enjoyed endming popularity, yet it is difficult to fmd
the fmality of judgement in this theory. Historical method and evolutionruy
process tell us the vmious ways by which governments came into being or
perished away. But they fail to let us know how mankind originally crune to

1. Professor R.N. Gilchrist: "Principles ofPolitical Science", 18 (1957)

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11 JUN 2009
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18

live under State conditions. Some theories have gained popularity, for they
throw a shade of light on the ancient political tendencies, for they deal with
certain aspects related to the otigin of the State and the comparison of these
theories throws shade of light on the origin of the State.

Following are the well-known theones regarding the origin of the State:

(A) Speculative Theories. This category oftheories includes: (1) The Theory
of Divine Origin; (2) The Force Themy; (3) The Social Contract Theoty.

(B) Speculative and Half Actual Theories. The category includes Patriachal
and ·Matriarchal Theories.

(C) Historical Theory. This theory includes the Evolutionary Theory.

(i) Speculative Theories :

A. The Theory of Divine Origin

According to this theory, the state is a divine institution of God who

created it for the common welfare. This theoty propagates that either God
Himself n1les over or sends His representative or the deputy to rule over the
people. The kind is God's representative and, therefore, he is responsible to
God and not to the people. It is the supreme duty of the people that they should
obey the commands of the Icing.

To oppose the Icing is to oppose God. The king may be a tyrant, yet the
people have got no right to go against the king. Disobedience to the king is the
disobedience to God. Kings opposition is God's opposition. It is not the people
to ask the king to give the accmmt ofhis deeds. God alone is entitled to ask the
Icing to give the account of his good deeds or bad deeds. In this way the
exponents of this theory regard the king and his administration as superior to
the people and law. According to this theory no power on earth can put a
restraint to the king's will, nor can any authority ban his use of power. The
supporters of this theory consider it a sin to protest against the power and
authority of the Icing and call his actions unjustified. Therefore, it is the supreme
 19

duty and highest moral obligation to carry out the commands of the king who
is the representative of God on this earth. To violate the dictates of the king
and to disobey him is not only a legal offence but also a sin. So the·people
should lmconditionally smTender to the king. Thus, it is quite clear that nobody
is entitled to go against the king or to dethrone the lang even though he proves
to be a tyrant. " Kings", writes James I, "are breathing images of God upon
earth", and disobedience to their dictates is the disobedience to God". "As it is
atheism and blasphemy to dispute what God can do, so it is presumption and
high contempt in a subject to dispute what a king can do, so its presumption
and high contempt in a subject of dispute what a Icing can do or to say that a
king cannot do this or that". Rebellion in the cause of religion is regarded as a
sacrilege because, " the state of monarchy is the supe1most thing upon earth;
kings are not only God's lieutenants upon earth and sit upon God's throne but
even by God himself they are called Gods". People are "headless multitude",
incapable of making laws. The king is the divinely instituted law~giver of his
people. The people must submit to the authority of the king. The law resides
ultimately " in the breath of the king". " A bad king vvi11 be judged by God but
he must not be judged by his subjects or by any human agency for enforcing
the law, such as the estates or the courts".

The Divine Theory followed by the Hindus

As has already been stated that the Divine Theory of the origin of the
State is as old as the State itself. "Manusmriti" is the glaring example of this
theory. It has been clearly stated in the "Jvlanusmriti", that "though the king is
a human being yet no one should hate him because he is God in the shape of
man". 2 It has been futher stated that ''people were fed up with the anarchy and
so God created the state for their protection" .3

In the Gita, the famous book of the Hindus, Lord Krishna. declared
himself to be the king of people. Kautilya has stated in his famous book,

2. ''Jvfanusmuritf', Ch. VII, at 8.

3. Ibid., CH. VII, at 28.
 20

"Arthashastra", that the king is equal to Indira, the God of rain and sk.-y or
Yama, the God of death. And so he must not be insulted. Though it is true that
such statements have been given in the books like ".lvfanusmruti", the Gita
and other religious books only with a view to arouse the sentiment of obedience
to the Icing in the heart of the people, yet the authors of these books did not
aim at making the king an absolute monarch. It has been further stated in
"A1anusmuriti" that"the king is under the command of religion and he makes
use of sceptre only for safeguarding religion. Spitihmlly, and morally degraded
Icing is killed by his followers". 4

The Divine Theory followed by Jews

The Divine Theory of the origin of the state takes us back to the eru:liest
stage of political life. "The Old Testament', the religious books of the Jews is
the glaring example of this theory. In this "Old Testament God is looked upon
as the immediate source of royal powers". In the Bible it has been stated, "Let
evety soul be subject unto the higher powers. For there is no power but of
God; the powers that be, are ordained of God.

The Divine Theory followed by the Christians

With the rise of Christianity this theory received a new impetus. The
Church- fathers founded this theory on the well-known saying of Paul: "Let
every soul be subject unto the higher powers; for there is no power but of
God; the powers that be, are ordanied of God. Whatsoever resisteth the power,
resisteth the ordinance of God and they that resist shall receive to themselves
damnation". The Church fathers preached this theory in the entire Europe.
According to them, man in the beginning lived in heaven but for his own sins,
he was hurled from the Paradise. Then God created the state on the earth and
appoit1ted the kings as its head. Hence, the Icing was regarded as the "infallible
head" over the people. The Divine Right of the Kings became a supreme
weapon in the hands of the despotic monarchs who were thought to be

4. Ibid.
 21

responsible to God alone. James I ruled over Btitain in accordance with the
principle of the Divine Right of the kings. In his famous book - "Law of Free
Monarchies", .Tames I 5 has stated the following rights of the king:
(1) Klngs derived power straight from God.
(2) Klngs have no legal obligations to the people.
(3) Laws were products of King's authority and they, therefore, could not be
above the king.
(4) Kings had power of life and death over their subjects.
(5) Subjects should obey the king's orders and even if he happened to be bad,
they could not rise in rebellion against him as they were the "breathing
images of God upon earth."
The followers of Christianity regarded the state as a divine institution
and considered the king the representative of God on this earth. Therefore,
they thought that it was the moral obligation of the subjects to obey the
commands of the king. Saint Augustine and Pope Gregory, the Great also
supported the theory known as Divine Rights of kings.

Divine Rights of kings

After having sought the assistance of the Divine Theory, the kings of
Europe formulated their own theory known as "Divine Rights of kings." Dr.
J.N. Figgs is the supporter of the Divine Rights ofkings. According to hjm:
( 1) the Icing was given political power by God; (2) Political power is hereditary;
(3) the king is a great source of intelligence and wisdom and is reponsible to
God alone; ( 4) it is a sin to disobey the king or to be against his will. 6

In the seventeenth centmy James I, the Stuart king who mled over
Britain has beautifully justified the Icing's status on this earth. In his well-
known book, "Law of Monarchy", he wrote "kings are justly called gods, for
they exercise a manner of resemblance of divine power upon earth.

5. James I: "Lav.1 of.Monarchy".

6. J.N. Figgs: "The Divine Rights ofKings". at 5-6.
 22

As it is atheism and blashphemy to dispute what God can do, so it is

persumption and high contempt in a subject to dispute what a king can do or
to say that a king cannot do this or that, kings are breathing images of God
upon earth'. 7

The Divine Themy was deemed fit and significant in its own time. But
now it has lost its importance. The study of this themy enables us to know the
inpact of religion on politics in ancient times. It enables us to know how this
theory aroused in the heart of the public the sentiment of obedience to the
Icing. This sentin1ent of obedience is essential for the stability of the State.
Kings were also a bit afraid of God.

According to this theory God created the states and so the kings had to
take the oath of religion. The Divine Origin of the state gave it moral support.
This theory helped a lot in removing the chaos and anarchy from the state. It
maintained peace which is the life and soul of the state. In ancient times the
commands of political laws were in the hands of religion and, therefore, it
was very easy to administer them. The public also easily embraced the laws
which were adminstered by religion.

B. The Force Theory

Tlus themy holds that the state originated and developed by the use of
naked force applied by the strong over the weak and their consequent
subjugation. In the very beginning man lived in small groups (Guilds) and
wandered fi·om one place to another in search of food. Many times a fight
broke out in these groups. vVhenever the strong group succeeded in having its
control over the weak group the State was orgruused, because the leader of the
strong group used to become the Icing and brought the defeated group into his
subjection. In his famous book "History Politics" Jenks points out, "Historically
speaking there is not the slightest difficulty in proving that all political
communities of the modem type owe their existence to successful warfare" 8 •
This statement of Jenks makes it very clear that the State is the out-come of

7. James I: "Lmv ojfvfonarchy".

 23

war and that "war begets the king." Voltaire has also admitted that "the ftrst
king was fortunate wanior." Hume gave expression earlier in the eighteenth
centmy when he wrote," It is probable that the fust ascendancy of one man
over multitudes began during a state of war, where the superiority of courage
and genius discovers itself most visibly, where unanimity and concert are most
requisite and where pernicious effects of disorder are most easily felt. The
long continuance of that state, an incident common among savage tribes inured
people to submission.
· The progressive growth from tribe to kingdom and from kingdom to
empire is but a continuation of the same process."9 According to Professor
R.N. Gilclui.st, "Themy of Force states that civil society originated in the
subjudation of the weaker by the stronger ..... From the more rudimentary
political organisations, it spread in successive steps to the more advanced.
Finally, kingdom and empires fought against each other and survived and
10
died according to their strength." ·

Undoubtly, it is true that force has played decisive role in expanding

the State, yet it will be wrong to say that force alone expanded the State. For
example, the establishment of Federations in several countries prove it very
well that the co-operation of the public can also expand the State. In U.S.S.R.,
U.S.A., and India, Federations came into being in the same way. In these
countries, force was not used for establishing Federations. On the contrruy,
common defence and common interests led to the establishment of these
Federations. In this connection, Seeley has very aptly remarked, "The
emergence of the State was not due to force although in the process of expansion
11
force has undoubtedly played a part" The theory of force," observes Dr.
Leacock, "ens in magnifying what has been only one factor in the evolution
of society into the sole controlling force." 12

8. Jenks: "HistOJy ofPolitics", at 71.

9. Leacock: "Elements ofPolitical Science", at 32.
10. Prof. R.N. Gilchrist, "Principles ofPolitical Science", 75 (1957).
11. Seeley: "Introduction to Political Science", at 73-75.
12. Leacock: "Elements oJPolitical Science", at 33.
 -~ :'

24

C. The Social Contract Theory

The Social Conn·act Themy which dominated the European political

thought in the eighteenth century, has played a very important part in the
development of the modem political themy and practice. Of all the speculative
theories, the Social Contract Themy is most important. It is one of the oldest
theories. This themy came into being as a result of reaction against the theory
of Divine Origin.

According to this themy, the state was not created by God. On the
contrary, under the compulsion of circumstances, people contracted with the
rulers and as a result the State was organised. This theory offers an explanation
for the origin of the state and shows the relationship between those who govern
and those who are governed. It is mechanical theory which starts with the
assumption that prior to the organisation of the state man lived in "a state of
nature". It deals with two fundamental assmnptions - first " a state of natm·e",
second a contract.

In sixteenth and seventeenth century this theory gained enduring

popularity. Richard Hooker (1554-1600), Hugo Grotious, 1\!Iilton, etc. also
supported this themy, but the Social Contract Theory reached its culmination
in the hands of Hobbes, Locke and Rousseau.

Hobbes, Locke and Rousseau are the chief exponents of the Contract
theory. All of these three exponents establish their thesis from the begining of
hina habitation. But their ideas and opinions are quite distinct

(a) Views of Thomas Hobbes (1588 -1679)

Thomas Hobbes, once a tutor to Charles II of England, was a great
English Philosopher. He was born in 1588 and lived in the stilTing times of the
Great Rebellion and the Commonwealth. He witnessed the Civil War (1642-
49) in England and was deeply affected by its miseries. He was so much shocked
by the after effects of the Civil War that he concluded that the salvation of the
country lay in the absolute system of the govemment. He started believing in
 25

the fact that only powerful monarchy could save England and maintain peace
there. Since he had been the tutor to Charles II, he attempted to justify the ru1e
of the Stuarts and defended the absolute powers of the monarch. He used the
doctrine of the Social Contract for this purpose. This is the reason why he
sought to justify the absolute power of the sovereign in his book, "Leviathan".
He never had a mind to propound a theory regarding the migin of the State.
His sole object was to defend the despotism of the Stuarts ad suppmt despotic
monarchy.

(b) Views of John Locke (1632-1704)

J olm Locke, another English political philosopher, belonged to

seventeeth centrny. He was an ardent advocate of constitutional monarchy
and an opponent of absolute monarchy in England. He expressed his views in
his book, "Two Treaties on Civil Government", published in 1689. In this
book, he attempted to justify the Glorious Revolution ( 1688) and the deposition
of James II. He has very aptly asserted that parliament reserved the right to
dethrone the Icing. If he disobeyed the conm1ands and overlooked or ignored
the claims of the public will. In this way, he justified the deposition of James
II and suppmted the coronation of King William and Queen Mary. This is the
1
reason why John has called this contract social and political. The historical
background of both Hobbes' and Locke's theories is very similar. "Hobbes
impressed by the miseries of the Great Rebellion", says Professor Gilchrist,
"argued on the basis of the Social Contract for a system of absolute monarchy.
Locke on the same basis tried to justify the deposition of J an1es II and
establishment of constitutional govemment". Like Hobbes, John Locke also
begins his essay with the description of the State of nature. But Iris view are
different from those ofHobbes. His description of the State of nature is different
from that of Hobbes.

(c) John Locke's Social Contract

J obn Locke deals with dual contracts - social and govemmental (of
political). Social contract leads to the formation of civil society and the
 26

governmental contract to the establishment of the govenunent. Social contract

puts the Primitive state to the end. In the words of John Locke, "The State of
nature has a law of nature to govern it which obliges everyone; and reason,
which is that law which teaches all mankind who will but consult it, that being
all equal and independent, no one ought to hann another in his life, health,
liberty or possessions" .13 Thus, "Locke's state of nature with its sequence of
recognised rights, is already a politicial society" .14

Society is organised for protecting human life and safeguarding Iris

property and freedom. Man has authorised and given up not all of his right to
society but only the rights of health, libetty or possession. Anybody who
disobeys ]s liable to be punished by society. For this purpose, society transfers
some of its powers to a selected few persons who form the government. Such
type of government is established through a government contract. The ruler
and the people entered. into tlris contract.

(d) Rousseau's Views on Social Contract

Jeans .T aques Rousseau ( 1712-1778), the renowned French philosopher
and a great political thinker of tl1e eighteenth cenhuy, had elaborated his theory
of Social Contract in Iris famous book, "Social Contract". Born in Geneva in
1712, Rousseau settled in Paris after visiting many places. Unlike Hobbes and
Locke, Rousseau had no purpose to serve and no axe to grind. He expressed
his views about the social contract without ha\ling any consideration in his
mind. Rousseau was deeply affected by the crun1bling state of the political
order of the contemporary France. He came under ilie influence of Plato,
Montesquieu and Cicero, etc. He thoroughly stuided the ideas of Hobbes and
Locke. His own ideas deeply influenced Kant and Hegel, the well-known
German Philosopher. First of all his views were severely criticised and his
ideas were vehemently condenmed and his books were burnt to ashes. Being

13. John Locke: "Two Treaties ofCivil Government", Bk, 2, Ch. 2.

14. Barker: "Social Contract", See Introduction.
 27

disgusted and disappointed with the sorry state of affairs, he conm1itted suicide
in 1778. But after his death, his views gathered force and his ideas began to be
widely appreciated. His ideas became so popular and powerful that it led to
the outbreak of the French Revolution in 1789 after eleven years ofhis death.
That is the reason why he is regarded as the herald of the French Revolution.

(e) Rouseau's Theory of General Will

According to Rousseau, there was only one contract which was social
and political at the same time. The individual sunendered himself completely
and unconditionally to the contract of which he became the member. The
contract so entered was moral and collective. Rousseau called this contract
General Will. The salient feature of the General Will ,..Vas that it attached no
importance to private interests. People did not care for their private ends and
willed the General Good. In other words, the will of the individual that willed
the best interests of the State was his best will and it was indeed more real
than his will that willed private ends. Rousseau goes to the extent of saying,
"tv1y will which wills the best interests of the State is my best will and it is
indeed more real than my ·will which wills my private interests. All actions are
the result of the will but my will for the good of the State is morally superior
to any other will private or associated which may from time to time detennine
my conduct. The general will being the compound of the best wills of the
citizens willing the best interests of the community and its lasting welfare, it
must be sovereign''. Rousseau further says, "Since it is _my will, my own will,
I ought always to follow it, then the General Will can legitimately compel me
to obey it Indeed it is the only authority that can legitimately coerce me, for it
is my own will coming back to me even though I do not always recognise it as
such. And in following it, I am fulfllling myself and am thus fmding true
freedom. \Vhoever refuses to obey the General vVill shall be compelled to do
so by the wholebody. This means nothing less than that he will be forced to be
free; for this is the condition which secures him again all personal dependence". -
 28.

(ii) Speculative and Half Actual Theories

A. Patriarchal and lVIatriarch.al Theories
So limited is the knowledge of the Political Scientists, regarding the
origin of the State that it becomes vety difficult, if not impossible to say when
and how the state miginated. But it can safely be assetted that the State is the
outcome of historical evolution. Because fan1ily is the oldest of all human
institutions and because family is the ftrst constituent of society, it has played
a dominant role in the organisation of State. Maciver, an eminent political and
social scientist, is also of the same opinion. He says, "in the family, the primary
social unit, there are always present the curbs and controls that constitute the
essence of government, which is in continuation by the more inclusive society
of a process of regulation that is highly developed within the family. The same
necessities that create the family also regulate it. Here is government in
miniature and already govenunent of a quite elaborate character." Therefore,
it can safely be asserted that family has been a very important link in the
development of State. .

Patriarchal Theory of the State

This theory explains that the family with the father as head expanded
into the clan and the clan into the tribe and finally the state crone into being.
The tribe expanded into the State. Blood relationship made its valuable
contribution in the expansion of the family into the clan and of the clan into
the tribe. While dealing v-vith this process Leacock Wiites, "First a household,
then a pat:Iiarchal family, then a tribe or persons ofkindered descent and finally
nation - so emerges the social series erected on this basis," while Aristotle
believed that the state took fmm "as a natural expansion of the family.

Sir Hemy Maine was the strongest supporter of Patriarchal Theory of

State,. At one time, he was the legal member of the Governor-General's Council
in India. He has ardently advocated this theory through his well-knoWll books
-"Ancient Law" and "Early History of Institutions." According to Sir Hemy
Maine, "the eldest male parent- the eldest ascendant - was absolutely supreme
 29

in his household and his dominion extended to life and death and was as
tmqualified master over his children and their houses as over his saves." 15 He
further remarks, "Over the members of his household, the eldest male parent
possessed despotic authority. He was not only absolute owner of propetty
including even what his children had acquired but he could even chastise and
even kill, could sell or transfer by adoption could many or divorce any of his
children at will. "Sir Hemy Iviaine has beautifully outlined the process of State.
He says "The elementary group is the family, connected by common subjection
to highest male ascendent. The aggregation of families fonns the Gens or
houses. The aggregation of house make the tribe. The aggregation of tribes
constitutes the commonwealth." 16 In the support ofhis theory, Sir Henry Ivlaine
has given references to the Jewish scrip11rre and to the powers of heads of the
families in Greece, Rome and India.

(iii) Historical or Evolutionary Theory

This theory attempts to explain the origin ofthe State most scientifically.
According to this themy, the state is a historical growth. The state is neither
the result of an ru.tificial creation not it originated at a patticular period of
time. Dr. Gmner has very aptly observed in this connection: "The State is
neither the handiwork of God, nor the result of supe1ior physical force, nor
the creation of resolution or convention, nor a mere expansion of the family.
The state is not a mere mtificial mechanical creation but an institution or natural
growth of historical evolution" .17 Leacock has also very aptly remarked, "The
State is a growth, an evolution, the result of a gradual process, rmming
throughout aU the known history of man and receding into remore and unknown
past" .18 According to Burgess, "State is a continuous development of hmnan
society out of a grossly imperfect beginning through crude but improving

15. Sir Henry Maine: "Ancient Law", at 123-24.

16. Ibid., at 138.
17. Prof. Gamer: "Political Science and Government".
18. Leacock: "Essentials ofPolitical Science", (1832), at 37.
 30

forms of manifestations towards a perfect and universal organisation of

mankind". 19

A close analysis of the rise of the State tells us about a number of

factors which played an impmtant role in the growth and development of the
State. The following are a few important factors :

(1) Natural Social Instinct

(2) Kinship

(3) Religion

(4) Force

(5) Economic Activities

(6) Political Consciousness

No doubt a close analysis of the rise of the State shows the factors
which played an important role in the growth and development of the State,
yet it is not to be supposed that these factors are actually separated in the
process of state-building. A clear-c.ut division is impossible.

A. Evolution of The lVIodern Nation State

As has already been stated, the State is the product of slow and steady
process of evolution over a long period of time embracing a number of factors.
But this process of evolution of the State has not been uniform, regular and
continuous . Different factors produced different types of states in different
societies. Therefore, it is very difficult to show the stages of evolution which
the modem nation-state had to undergo during the process of its slow and
steady evolution. However, speaking in terms of history the tribal State, the
Oriental Empire, the Greek City-state, the Roman Empire, Feudal State, the
Modem Nation State have generally been regarded as the stages of evolution
of the State. Hence, it is instructive to mark the following stages through

19. Burgess: "Political Science and Constitution LffilJ," Vol. I, at 59.

 31

which the state has evolved:

( 1) The Tribal State

(2) The Oriental Empire

(3) The Greek City-State

(4) The Roman Empire

(5) Feudal State

(6) The Modem Nation-State

Modern Nation State

Feudalism was "a temporary scaffolding or fi.·ame work of order". Its

decline and fall was bound to occur. In Europe, the Renaissance and the
Reformation, the Industrial Revolution and the invention of brun-powder and
the mutual disputes led to the fall of feudal states and gave rise to the growth
of modetn nation-states. The powerful king captured the feuds with the help
of gun-powder and with the co-operation of the lower middle class. For
example, Sir Henry VII and VIII in England, .King Louis XIV in France, Phillip
II in Spain, and Peter the Great in U.S.S.R overpowered the feuds there and
refuted the supremacy of the church and established the nation-states.

In such nation-states measures were adopted to mitigate the imperial

effect of any to give impetus to the business and service classes. The kings
used to exercise their absolute authority for the welfare of the public and for
maintaining law and order. Every such state was extended to all the territorial
lines of the cotmtry and attempts were made to make the whole nation politically
awakened. National feelings were aroused through similar administration,
common histmy, common language and common religion etc.

Democratically Organised nation-states (Great Britain, France,

Netherland, Sweden, Nmway, Denmark, Greece, Austria, Japan, India, U.S.A.,
Canada, Australia etc.)
 32

The nation-states which were established in the ve1y beginning were

absolute monarchies. In such states the authority of the king was supreme. In
the very beginning, the common public being completely terrorised. by the
tyranny of feuds tolerated the absolute authority of the king. But with removal
of the terror created by Feudalism the public stmted demanding its rights. At
last the public rose in revolt against the king England faced the Civil War
dming the regime of Charles I in seventeenth century. As a result of it, the
king was defeated and the pm·liament won. The king was given capital
punishment. This gave a ve1y heavy blow to the authority of the king. During
the regime of Oliver Cromwell monarchy was abolished. But later on, Charles
II was again enthroned. After Chm·les II when James II attempted to extend
the scope ofhis authmity, England faced the Glorious Revolution in 1688 and
the authority of the king was cmtailed. In 1789, Revolution broke out in France.
With the advent of the revolution tyranny ended over there. But after some
time Napoleon emerged as powerful ruler. Mter the fall ofNapoleon democarcy
flourished in Frm1ce. Third Republic was established but it came to an end
dming the 2nd World war vvhen Hitler overran it. Vlhen Hitler was overthrown
in 1945, then the 4th Republic was established which lasted till 1958. After
that fifth Republic was established. In India, Democracy was established after
Independence. In fuis way, after a continued stJ:uggle for a very long period
most of the states of the world, if not all, have got democracy. These nation-
states have nourished the sentin1ent of nationality. These nation-states have
their fixed territmy. Sometimes, disputes mise regarding the tetritory. At this
critical time the U.N. mediates in such matters. These state are seeking co-
operation from the U.N. intending helping hand to them.

The State has been envisaged from various points of views. Theorists
conceive and defme the state in tenns of their own science. Each gives his
own theory regarding the origin, nature, sphere, function and. ends of the state.
These theories often differ from one a11other in form and substance. Here we
shall make an attempt to deal with the various theories regarding the nature of
the state.
 33

II Sovereignty
(i) Meaning of Sovereignty
The term "Sovereignty" has been derived from the Latin word
"Superanus" which means supreme or paramount. Although the term
"Sovereignty" is modem yet the idea of "Sovereignty" goes back to Aristotle
who spoke of the "supreme power of the state". Throughout the Middle Ages
the Roman jurists and the ci\rilians kept this idea in their mind and frequently
employed the terms "Summa" potestas and "Plenitude potestatis" to designate
the supreme power ofthe State. The terms "Sovereign" and Sovereignty" were
first used by the French jurists in the fifteenth century and later they found
their way into English, Italian and German political literature. The use of the
term "Sovereignty" in political Science dated back to the publication of Bodin's
"The Republic" in 1576. "The word sovereign" says J.S. Roucek and others,
"entered the vocabulary of political theory from the feudal order, wherein it
designated a relationship between persons. The term sovereign had been
applicable to any feudal overlord with authority over subjects in his own
dominions" .20

(ii) Definitions of Sovereignty

Sovereignty is "the common power of the state, it is the will of the

nation organised in the state, it is right to give lmconditional orders to all
individuals in the tenito:ry of State". 21

Burgess characterised sovereign is the "Original, absolute, unlimited

power over the individual subjects and over all associations of subjects. 22

"Sovereignty is that power which is neither temporary nor delegated,

nor subject to particular rules which it cannot alter, not answerable to any
other power over earth". 23

20. J.S. Roucek and others: "Introduction to Political Science" (1954), at 49.
21. Duguit, Droit Constitutional Vol. I, at 113.
22. Burgess : "Political Science and Constitutional Law", Vol. I, at 52.
23. Pollock: "History of the Science ofPolitics", at 59.
 34

(iii) Austin's Theory of Sovereignty

John Austin (1790-1859) had been an eminent English jurist in the

nineteenth century. He stated his theory a little more than a century age. His
theory is well explained in the famous book "Lectures on Jurispmdence".
This book was published in 1832. Though he was much impressed by the
views of Hobbes and Bentham, yet his theory of sovereignty is quite distinct.
He explained very clearly and precisely the legal or monistic theory of
sovereignty in his famous book "province of Jurisprudence Determind" ( 1832).
In his another famous book "Lectures on Jurispmdence" he drew a line of
difference between law an morality. His statement of the theory of sovereignty
runs like this, "If a determinate human superior, not in the habit of obedience
to a like superior, receives habitual obedience from the bulk of given society,
that determinate hmnan superior is the sovereign and that society (including
the superior) is a society political and independent. Every positive law or evety
law simple or strictly so called, is set directly or circuitously by a sovereign
person or body to a member or members of the independent political society
wherein that person or body is severeign or supreme".

Austin is of the opinion that the determinate human superior is the

only law-maker and his commands are laws. But Sir Henry Maine with other
historical jurists has vehemently criticised and condemned Austin's theory of
Sovereignty. Sir Henry Maine believes that Sovereignty does not reside in the
determinate human superior. According to him "vast masses of influences,
which we may call for shortness moral, that perpetually shapes, limits or forbids
the actual direction of the forces by its sovereign". 24 Maine cites the example
ofRanjit Singh whom he regards as an absolute despot possessing qualities of
Austin's determinate human superior "Ranjit Singh", says Maine, "could have
commanded anything; the smallest disobedience to his commands would have
been followed by death or multilation". Yet Ranjit Singh never "once in all his
life issued a command which Austin could call lavv ... .. The rules which
regulated the life of his subjects were derived from their immemorial usages

24. Sir Henry Maine: "Early History ofInstitution", at 359.

 35

and these rules were administered by domestic tribunals, in families or village

communities". 25 Clark, Sidwick, Mar by, Lowell, Wilson, T.H. Green,
Lightwood, Marriam and Willoughby. All these political thinkers are of the
opinion that John Austin has laid unnecessary emphasis on this only one
element (the order of the sovereign) and ignored many other elements. 26 John
Austin attempted to defend this charge by saying that "whatever the
Sovereignty permits, that is also law. But this defence of Austin could not
,,
satisfy the critics. The critics argued that the development of the Common law
was a great political stir which could not be averted by the sovereign. Hence,
the sovereign had no other altetnative than to permit the common law to exist.
Maciver has very aptly remarked, "The state has little power to make custom
and perhaps less to destroy it, although indirectly it influences customs by
changing the conditions out of which they spring". 27

III. Concept of Law

The Hindu jurisprudence or the legal system (Vyavahara Dharmasastra)
is embedded in Dharma as propounded in the Vedas, Puranas, Smritis and
other works. Dharma is a Sanskrit expression of the widest import. There is
no corresponding word in any other language. It would also be futile to attempt
to give any deftnition to what word. It can only be explained. It has wide
varieties of meanings. A few of them would enable us to understand the width
of that expression. For instance, the word Dharma is used to mean justice
(Nyaya), what is right in a given circumstances, moral, religion, pious or
righteous conduct, being helpful to living beings, giving charity or alms, natural

25. Ibid.
26. Clark, "Practical Jurisprudence", "A commentary on Austin", atl16 ff. Sidgwick:
"Elements ofPolitics", Appendix A. Markby: "Elements oflaw", at 24 Lowell: "Essays
on Government"8 (Chapter 5 on Sovereignty); Wilson, "An old Master and other
Essays", Chapter 5; T.H. Green, "Political Obligations", at 93-122; Lightwood, "Nature
ofPositive Law", Ch. 13; Marriam, "HistoryofSociety" at145ff; Willoughby, "Funda
mental Concept ofPublic Law", at 116 ffand at 129 ff.
27. Maciver: "Modern State", at161.
 36

qualities or characteristics or properties of living beings and things, du1y, law

and usage or custom having the force of law, and also a valid Rajashasana
(royal edict)

(i) Meaning of Dharma

Mahabharata contains a discussion of the meaning of Dharma. On
being questioned by Yudhistira about the meaning and scope of Dharma,
Bhishma States: 28
It is most difficult to define Dharma.
Dharma has been explained to be
that which helps the upliftment of
living beings. Therefore that which
ensures welfare (of living beings) is
surely Dharma. The learned rishis
have declared that which sustains
is Dharma.

Taittiriya Samhita States: 29

Dharma constitutes the foundation

of all affairs in the world. People
respect one who adheres to Dharma.
Dharma insulates (man) against sinful
thoughts and actions. Everything in this
world is founded on Dharma. Dharma,
therefore, is considered supreme.

Jaimini 1.2:

Dharma is that which is indicated

by the Vedas as conductive to the
highest good. 30
28. Mahabharata Shantiparva-1 09-9-11.
29. Taittiriyopanishat- Jnanasadhana Nirupanam -vide Sasvara Vedamantra atl28.
30. Sahara at 4-7; Yudhistira at 10.
 37

Madhavacharya, the Minister to Hakka and Bukka, foimder kings of

Vijayanagar Empire, in his commentary on Parashara Smriti, has briefly and
precisely explained the meaning of Dharma as follows:

Dharma is that sustains and ensures

progress and welfare of all in this
world and eternal bliss in the other
world. The Dharma is promulgeted
in the form of commands.31
Therefore Dharma embraces every type of righteous conduct covering
evety aspect of life essential for the sustenance and welfare of the individual
and society and includes those rules which guide and enable those who believe
in God and heaven to attain moksha (eternal bliss).

(ii) Origin of Dharma

Dharma was founded as the solution ot the eternal problems confronting

the human race, originating from natural human instincts.

Manu II: 4:
There is no act of man which is free
from desire; whatever a man does is
the result of impulse of desire.
In the above verse, analysing the human instinct, Manu states that the
force behind every action of human being in his desire (kama). Then the next
question is what are the natural desires of man. The natural desire of man was
found to be the desire to have sexual and emotional enjoyment and wealth i.e.,
material pleasure (artha). Artha is explained by Vatsayana as connoting material
wealth such as gold, cattle, com, including education or knowledge necessary
to earn wealth. 32 The source of all evil actions of human beings was traced to

31. Parashara Dharma Samhita- Sayana Madhavacharya Krita- Tikasahita (Sanskrit)-

edited by Vamanasharma (1893), Bombay Sanskrit Series, at 63.
32. Kamasutra 1-20.
 38

the desire for material pleasure which in tum gave rise to conflict of interests
among individuals.

Further it was found that the desire (kama) of human beings could also
be influenced by the other impulses inherent in human beings such as anger
(krodha), passion (moha), greed (lobha), infatuation (mada) and enmity
(matsarya). These six natural impulses were considered as six enemies of
man (arishadvarga), which if allowed to act uncontrolled could instigate him
to ente1tain evil thoughts i the mind for fulfilling his own selfish desires and
for that purpose cause injury to others, Manu on this basis explained the causes
of all civil and criminal injuries by the action of one against the other. 33

Dharma or rules of righteous conduct was evolved as a solution to this

ete1nal problem arising out of natural instinct of man. In Mahabharata
Shantiparva, after explaining that an ideal state of affairs did exist when people
protected each other acting according to Dharma (Shanti 59-14), Bhishma
proceeded to state that people deflected from the path of Dharma being
overpowered by sensual desires, passion and greed, and stronger persons began
to harass the weaker ones and as a remedy to this situation, the three-fold
ideals called Dharma, Artha and kama (Trivarga) were laid down for the
welfare and happiness of the people, and a fourth ideal namely Moksha- the
desire to secure eternal happiness - was also prescribed and the king was
entrusted with the responsibility of enforcing Dharma.

The object oflayig down the three-fold ideals was that Kama (desire)
for material pleasure (Artha must be ente1tained and enjoyed only in confonnity
with Dharma and not otherwise. Further, if one has before him the ideal of
Moksha is would it would also influence him to conform to Dharma in the
worldly life.

After deep study and meditation, the great seers declared that unless
kama (the desire) to have all earthly i.e, material pleasure (Artha) and those
proceeding from anger, greed, passion, infatuation and enmity of every

33. Manu XIII 3-7

 39

individual is controlled by rules and not by the strength or weakness of the

individual human beings, incessant conflict, fight and consequential loss of
happiness, peace as also the loss of material pleasure itself would be the
inevitable consequence. It is for this purpose rules of Dharma were expanded
to cover all aspects of life. It is thus, the whole body of rules which declared
as to what were the proper desires which one should entertain and as also
what were the proper ways and means to acquire the material pleasure properly
desired, came to be known collectively as Dharma.

Artha and Kama Subject to Dharma

The propounders of Dharma did appreciate that fulfilment of desires

of human beings was an essential aspect of life, but were of the opinion that
unless the desires were regulated by law, ·it was bound to have undesirable
results. Therefore, all the propounders of Dharma were unanimous that for
the existence of an orderly society, peace and happiness of all, the desires
(kama) for material enjoyment, and pleasures (Artha) should always conform
to Dharma (Law) and never inconsistent with it.

Bhagavadgita 16-24

Let the sastras be your authority in deciding what

you should do and what you should desist from
doing. Having understood what is ordained by the
sastras you should act accordingly.

Manu 11224 and1V 176.

For achieving welfare and happiness some declare
Dharma and Artha are good. Others declare that
Artha and kama are better. Still others declare that
Dharma is the best. There are also persons who
declare Artha alone secures happiness.
But the correct view is that the aggregate of Dharma, Artha and kama
(Trivarga) secure welfare and happiness.
 40

However the desire (kama) andmterial wealth (Artha) must be rejected

if it is contrary to Dharma.

Vatsayana Kamasutra 1.2.7-15: after explaining the meaning of

Dharma, Artha and Kama, states:
Out of Dharma, Artha and Kama,
each preceding one is superior
to the following. 34

This indicates that proper means of acquisition of Artha i.e., material

wealth and pleasure must prevail over the desire (kama), and Dharma must
control the desire (kama) as well as the meas of acquisition of material pleasure
(Artha). All the works on Dharma therefore prescribed tules of right conduct,
observance of which was considered necessary for the welfare of the individual
and the society.

In laying down Dharma its propounders took an interated view of life,

consequently, rules of right conduct covering almost every sphere of human
activity such as religion, rules regulating personal conduct of individuals, as a
student, as a teacher, as a house-holder, as a husband, as a wife, as a son, as a
hermit, as an ascetic, including rules regulating taking of food and the like
were prescribed. Dharma therefore laid down a code of conduct covering
evety aspect of human behaviour, observance of which was considered a must
for peace and happiness of individuals and the society.

(iii) Vyavahara Dharma and Rajadharma

While explaining the origin of State (Rajya) and creation of kingship,

Bhishmacharya states that in the hoary past there was an ideal stateless society
and that every one acted according to Dharma and each was protecting the
order. But as powerful individuals, overwhelmed by their desires began to
encroach upon the life, liberty and property of other weaker individuals, the

34. History ofDharmashastra, Vol. II part I at 9.

 41

king was created with the right to collect the tax and duty to protect the people
and punish the wicked. In the opening verse of his Smriti, Narada explains
that there were no legal proceedings when people were habitually veracious,
but as the standard ofbehaviour declined, the system of legal proceedings for
enforcement of rights and punishment of wrongs was established and the king
was appointed to decide law suits as he has the power to enforce the law and
punish the wrong doer.

It is at this stage of the evolution of human society in India when positive

civil and criminal law (the law laying down the powers, duties and
responsibilites of the king - Rajadharma), including the law regulating the
establishment of courts, their powers, functions and procedure, as part of
Dharma, was laid down which marks the commencement of its legal and
constitutional history.

Consequent on the creation of kingship and the system of legal

proceedings, the positive civil and criminal law, as also the law regulating the
constitution and organisation of State (Rajya), the duties and powers of kings
were laid down as part of Dharma and came to be called VjJavaharadharma
and Rajadharma, respectively.

Therefore though the word Dharma has such wide meaning as to covers
rules concerning all matters, such as spiritual, moral and personal as also civil,
criminal and constitutional law, it gives the precise meaning depending upon
the context in which it is used. For, instance, when the word 'Dharma' is used
to indicate the giving of one's wealth for a public purpose, it means charity;
when it is referred to the giving of Dharma to a beggar, it means giving of
alms; wh~n it is said that in a given case Dharma is in favour of the plaintiff,
it mean law or justice is in his favour; when it is said that it is the Dharma of
the sons to look after their aged parents, it means duty; when it is said that it is
the Dharma of a debtor to repay the debt to the creditor, it means a legal as
well as pious obligation. Similarly when the word Dhanna is used in the context
of civil rights (civil law), it means that it if enforceable by the state; in the case
of a criminal offence (in criminal law) it means breach of a duty which is
 42

punishable by the State; an~ when 'Dharma' is used in the context of duties
and powers of the king, it means·constitutionallaw (Rajadharma). Likewise
when it is said that Dharmarajya is necessary for the peace and prosperity of
the people and for establishing and egalitarian society, the word Dharma in
the context of the word Rajya only means law, and Dharmarajya means Rule
of Law and not rule of religion or a theocratic State.

Dharma in the context of the legal and constitutional history only means
Vyavahara-dharma and Rajadharma evolved by the society through the ages
which is binding both on the king (the ruler) and the people (the ruled). The
expression Dharma is used only in this sense while dealing with these topics
in this book. Rajadharma confened power on the king to enforce obedience
to Vyavaharadharma through the might of the State.

(iv) Definition of Law

Having evolved the concept of enforceability of the law through the

institution of kingship, ancient Indian jurists proceeded to defme the law. Law
was recognised as a mighty instrument necessaty for the protection of individual
rights and liberties. Whenever the right or liberty of an individual was enroached
by another, the injured individual could seek the protection of the law with the
assitance of the king, how ever powerful the opponent (wrong doer) might be.
The power of the king (State) to enforce the law or to punish the wrong doer
was recognised as the force (Sanction) behind the law which could compel
implicit obedience to the law. After declaring the kshatra power (i.e. the king)
was created by the creator, Brihadaranyakopanishadproceeds to state, fmding
that the mere creation of kingship was not enough, the most excellent Dharma
(law), a power supetior to that of the king, was created to enable the king to
protect the people, and gives the definition of law (Dharma) as follows: 35

35. Brihadaranyaka Upanishad, 1-4-14 (SBE Vol. XV 89- 14); Histmy ofHindu Law by
Sarvadhikari Tagore Law Lectures- 1880, at 10
 43

Law is the king of kings;

Nothing is superior to law;
The law aided by the power of the king
enables the weak to prevail over the strong
Commenting on the above provision, Dr. S. Radhakrishnan observes-
"Even kings are subordinate to Dharma, to the Rule oflaw." 36

Manu VII- 22 :

There is hardly an individual in this world, who on

his own, is pure in his conduct. King's (Sovereign's)
power to punis, keeps the people in righteous path.
Fear of punishment (by the king) only yields worldly
happiness and enjoyment.

Sureshwaracharya, the first head of Sringeri Mutt

established by Sankara, defines Sovereignty thus -

Here (in this world) he who has none else as his king
and who is himself the king is the sovereign. And his
status here is described as sovereignty. 37

The most ancient and perhaps the earliest definition oflaw given in the
Upanishad brings forth the essential aspects of the word 'law' as defmed in
the modem jurisprudence. The law, according to western jurisprudence, is an
imperative command which is enforced by some superior power or sovereign.
The superior power which serves as an instrument of coercion for the
enforcement of law is called the 'sanction'. 38

36. The Principal Upanishads by Dr. S. Radhakrishanan (former President of India), at

170.
37. The Taittiriyopanishad, Bhashyavartika ofSureswara, part I at 121.
38. Salmond's Jurisprudence 12th Edition, at 25-26.
 44

According to Austin, law consists of the general command issued by

the State to its subjects and enforced if necessary by the Physical power of the
state.

Therefore declaration of law by a political superior or sovereign (the

king) and the availability of the power of the Stater machinery for enforcement
of that law are stated to be the essential requisities of an imperative law. The
law as defined in Hindu jurisprudence also meant that it was enforceable against
individuals with the aid of the physical power of the king as is made clear
from the clause. 'The law aided by the power of the king enables the weak to
prevail over the strong'. The power of the king constituted the instrument of
coerciOn.

IV. Rajadharma or the Constitutional Law

"The proper function of the Ruler is to rule according

to Dltarma (the Law) and not to enjoy the luxuries
of life".

The origin of the State (Rajya) as well as the office of the king and the
conferment of power on the king to maintain the rule oflaw has been explained
in Shanti Parva of the Mahabharata. At the end of the epic war ofKurukshetra,
Yudhistira requested Bhishma, who was master of Rajadharma, to reveal the
law goceming kings. The chapter on Rajadharma in Shanti Prava incorporates
Bhima's authoritative exoposition about the origin and purpose of the State,
the rule of law , the institution of kingshop, and duties and the powers of the
king. Great stress is also laid on the personal charcter and qualities which a
king, in whom vast political power is vested, must possess for the proper and
effictive discharge of his functions. Rajadharma so clarly laid out is vast like
an ocean and consists of invaluable and etemal principles worthy of emulation
under any system of polity and by all persons exercising political power. The
Mahabharta discourse on the topic of Rajadharma discourse on the topic of
Rajdharma disclose that in the very early periods of civilization in this country
 45

great importance was attached to Dharma and it was self imposed by inviduals.
Consequently, everyone was acting according to Dharma and there was on
necessity of any authority to compel obedience to the laws. The existence of
~uch an ideal 'stateless society' is graphically described in the following verse

There was neither kingdom nor the king, neither

punishment nor the guity to be punished. People were
acting according to Dharma and threby protecting
one another.39

The above verse gives a clear picture of an ideal stateless society, which
appears to have been in existence in the horu.y past. Such a socity was most
ideal for the reason that every individual scrupulously acted according to the
rules of right conduct by the force of his own culture and havit and not out of
any fear of beang punished by a powerful superior authority like the State.
Consuquently there was mutual cooperation and protection. The society was
free from the evils arising from selfishness and exploition by individuals. The
sanction which enforced such implicit obedience to Dharma was the faith of
the people in it as also the fear of incrring divine displeasure if Dharma was
disobeyed.

However, the ideal socity so beautifully described did not last long.
White the faith in the efficacy and utility of Dharma, belief in God fearing
atttude of people continued to dominate the so city, the actual state of affairs
gradually deteriorated. A situation arose when some persons, out of selfish
worldly desires, began to flout Dharma, and become immune to the fear of
divine displeasure. They were infatuated by there desire for pleasure and,
prompted by there own muscle power, began to exploit and torment the weaker
section of socity for their selfish ends. Tyranny of the strong over the week
regned unabated . The danger to peaceful co-existence and consequent
uncertainty and anxiety about the sefety of life and property of individuals,
was brought about by such individules. It was as though the rule of

39. Mahabharata Santiparva, 59-14

( 46

'Matsyanyaya' (big fish devouring the small :fish) governed the society. This
situation forced the law abiding people to search for a remedy. This resulted
in the discovery of the institution of king and establishment of his authority
(kingship or the State). 40

Kautilya, who was the Prime Minister to the powerful magadha

Emperor, Chandragupta Maurya, in his celebrated work on policy (Arthasastra)
explains the origin of the institution of kingship.

Kaut. p. 22 (p 24 S):

People suffering from anarchy, as illustrated by the

proverbial tendency of bigger fish devouring the
smaller ones, first elected Manu, the Vaivasvata, to
be their king, and allotted one-sixth of grains grown
and-tenth of merchandise as the responsibility of
assuring and maintaining the safety and security of
their subjects (Yogakshemavahah) and of being
answerable for the sins of their subjects \vhen the
principle of levying just punishment and taxes has
been violated.

(i) Ideal and purpose of the State

There was no difference between the ideals kept before the State by
Rajadharma and those enshrined in the hearts of individuals through the
Sharutis and other works on dharma. The ideals placed before the individual,
for purpose of the welfare and happiness of himself and all others in this
world, were Dharma, artha and Kama and (materia1 welth and desires) if they
were in conflict with Dharma. The ultimate goal or ideal enshrined in the
hearts of all undoubedly was Moksha, which every individule was enjoined to
strive for i.e., libertion from the bondage of the cycle of birth and death and to

40. Kaut. at 22; at 24.S, Manu VII- 3.

 47

secure union with the creator or, in other words, to reach heavan, which idea
is philosophical in nature and, therefore , not germane to this topic. The ideals
of Rajadharma placed before the state were to assist and support the
achievement by individuals of the threefold ideals (Trivarga).

Barhaspatya Sutra IT 43:

The goal of policy (Rajaniti) is the fulfilment of

Dharma, Artha and Kama.

Barhaspatya Sutra IT 44 adds thatArtha (the wealth) and kama (desire)

mustand the test of Dharma. Kautilya declares that a king must strive for the
achievement of Trivarga. Kamandakiya, after an elaborate discussion of the
seven constituents of the State, concludes thus :

Kam. IV 77.

The State administered with the assitance of

sagacious minister secures the three goals
(Trivarga) in an enduring manner.

After a through discussion of the topic Mahamahopadhyaya Dr. Panduranga

Vamana Kane states:

" ... The goal of the State was deemed to be to enable

men to attain the four Purusharthas, particularly the
first three, (as the last viz, Moksha depended only
upon individual philosophical insight and mystrical
experience and was attainable only by a microscopic
number). Even the Barhaspatya Sutra (II 43) says that
the fruit of polity was the attainment of Dharma,
Artha and Kama. Somadeva begins his Nitivakyamrita
in a characteristic way when he performs obeisance ·
to Rajya (the state) which yeilds the three fruits of
Dharma, Artha and Kama ..•... The Dharmasastra
 48

authors held that Dharma was the supreme power

in the state and was above the king, who was only
the instrument to realize the goal of Dharma." 41

The theory about the origin of kingship and its purpose as set out above
it reiterated by all the works on Rajadharma which declare with one voice
that the highest duty of a king is to afforad 'protection to his subjects (praja)
and to dedicate himself for their welfare and happines.

(ii) Rajadharma is the Paramount Dharma

Simultaneously with the bringing into existence of Rajya and the
institution of kingship was felt the necessity to defme its structure, the powers
and duties of the king and the liability of the people to contribute a part of
their income by way of taxes, which should be placed at the hands of the king
for purposes of the defence of the realm and for maintainig peace, safety and
order in the society and also for unde1taking various welfare measures for the
benefit of the people. This necessity was met by making provisions regulating
the constitution and organisation of the State, specifying the power and duties
of the king and all other incidental provisions and treating these provisions
also as part of Dharma under the title Rajadharma (law governing kings). In
the Dharmashastras and Smritis., Rajadharma, several eminent writers wrote
independent treatises on it under vmious titles such as Rajanitism·a, Dandaniti,
Arthasastra is by Kautilyam, who was the Prime Minister ofMagadha Empire
which had its capital at Pataliputra (modem Patna, in the State of Bihar). P.V.
Kane refers to other extensive literature available on the subject. 42 The
important ones are Mahabharata - Shanti Parva, Manu Ch. VII and IX,
Kamandak Nitisat~a, Monasollasa of Someswara, Yuktikalpatmu of Bhoja,
Ranajit Ratnakara of Chandeswara, 'Rajaniti Prakasha of Mitramisra and
Dandaniti or Keshva Pandita. The system of government envisaged by all the
works on Rajadharma was Rajya (the state) headed by a king. The provisions

41. History of Dharmasastra Vol. III, at 237-241 at 240.

42. History ofDharmasastra. Vol. III, at 13.
 49

in the Dharmasastras, Smritis and other works on the topic mentioned above,
covered varieties of subjects such as the constitution and organisation ofRajya,
Kingship, manner of assuming office of the king (coronation), code of conduct
for the king, succession of kingship, education of young princes, appointment
of council of ministers, the chief justice and other judges of the highest court,
administrative divisions and powers and duties of the king.

The propounders of Dharmasastra declared that the king (state) was

absolutely necessary to maintain the society in a state of Dharma which was
essential for the fulfilment ofArtha and Kama. Rajadharma, which laid down
the Dharma of the king, was paramount.

Mahabharata Shantiparva 63, 24-25.

All Dharmas are merged in Rajadharma, and it is

therefore the supreme Dharma.43

The next question that naturally arises is whether Rajadharma, in the

absence of any authority like the judiciary for the enforcement of the provisions
contained therein, be regarded as constitutional law ?

It is no doubt true that there was no forum before which any violation
of the provisions of Rajadharma could be questioned. The Icing himself, who
was expected to· obey those laws, was the highest court, and the smritis provided
no forum for challenging the action of the king on the ground that it was in
violation of Rajadharma. Therefore the whole of Rajadharma was comparable
to the directive p1inciples of state policy as set out in Prut IV of the Indian
Constitution vide Article 37 which reads:

"Application of the principles contained in this part: The

provisions contained in this part shall ot be enforceable by
any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be
the duty of the State to apply these principles in making laws."

43. History ofDharmasastra. Vol. III at 39.

 50

It may be seen that though the provisions contained in Part IV are

declared fundamental in the governance of the State, they are made
unenforceable in a comt oflaw. Consequently non-implementation or violation
by the State of the provisions contained in Part IV could be questioned or
challenged by any method other than legal action. Therefore, non-performance
on the part of the government in implementing these directive principles, or
any action on its part in contravention of them, unless it results in the violation
of fundamental rights, can only be the subject matter of public criticism, both
in the legislature and outside, resulting in adverse public opinion against the
govemment, but could not be enforced throught courts. Such was also the
nature of all the provisions of Rajadharma. They people could put pressure
on the king to follow Rajadharma through advice by ministers, representation
by corporations and guilds, or by giving expression to their disapproval publicly,
but not through a court of law. However, it must be emphasised that the faith
in Dharma was deep - rooted in the people, which included even the king, and
this fulfilled in an abundant measure the requirements of Rajadharma which
formed the written constitution adopted by consensus and convention. The
mere fact that the provisions of Rajadharma were not enforceable in a court
oflaw is no basis to hold that Rajadharma were not enforceable in a court of
law in no basis to hold the Rajadharma did not correspond to constitutional
law. The factor of enforcement throught courts is not an absolute ingredient of
a constitutional law under any set up. The enforceability of constitutional
provisions through courts is a special characteristic of democratic constitutions
btinging into existence a limited government functioning within the framework
of a written constitution with the inbuilt mechanism of an independent judiciary
having the power to strike down any legislative or executive action of the
State on the ground of violation of constitutional provisions. For instance, the
provisions of the British constitution, which is not a written constitution but
consists of constitutional conventions, are not enforceable in a court of law. In
that system parliament is supreme and therefore the question of enforcing
constitutional provisions through courts and declaring a law made by Parliament
unconstitutional does not arise, as it does under the American Constitution as
 51

also under the Constitution of India. Distinguishig the features of the American
Constitution from that of Great Britain and explaining the meaning of
constitutional law cooley observes:

"A constitution is sometimes defmed as the fundamental law

of a state, containing the principles upon which the
government if founded, regulating the division of the
sovereign powers, and directing to what persons each of these
powers is to be confmed, and the manner in which it is to
exercised. Perhaps an equally complete defmition would be,
that body of rules and maxims in accordance with which the ·
powers of sovereignty are habitually exercised. " 44

Rajadharma falls within the scope of the expression 'Constitutional

law' as defined by Cooley. They were a body of rules according to which the
sovereign power was habitually exercised by the kings. Thus the provisions
of Rajadharma did form the constitutional or fundamental law of the states in
ancient India and they covered every aspect or basis principle on which the
government was founded. However like the provisions of the British
Constitution, they were unenforceable in comts oflaw; but with this difference
i.e., Rajadharma was much stronger because the king or the State had no
power to abrogate or modify its provisions. The king enjoyed no legislative
power to make other laws also. The laws on all these aspects were fixed and
could be adapted to suit the changing needs only by the people by evolving
usages and customs, or by eminent jurists, giving a new interpretation to the
existing provisions. The efficacy of Rajadharma as contitutional law is
evidenced by Arthasatra, the monumental work written by Kautilya, who
was the Prime Minister of one of the vast and most powerful empires in this
country around 300 B.C. Kautilya incorporated the whole of Rajadharma in
his Arthasastra, laying down in the strictest terms the Dharma (law) according
to which the sovereign should exercise his powers Dr. J. Jolly has expressed

44. Cooley on Constitutional Limitations, at 2-4.

 52

his view on Kaultiiya's Arthasastra thus :

"I must say that this is one of the most interesting and valuable
Sanskrit works ever procured. As a faithful and life-like
representation of Indian institutions and modes of govemment,
it is without a parallel. It throws a great deal of new light on
Indian Constitutional history, and on the development of
Indian Law" 45

In the above observations Dr. J oily has very rightly said that Kualityla's
Arthasastra throws a great deal of ligt on the indian constitutional history.
Therefore any study of Indian constitutional history without the study of
Rajadharma would be incomplete.

V. Background of the Constitution of India

The seeds of British arrival in India were sown in 1600 which grew
into a grand tree until it perished in 194 7and led to the adoption of the present
constitution on 26 November 1949. Let us have a brief overview of the period.
For the convenience of exposition, we divide the period into five parts- 1600
to 1772; 1773 to 1832; 1833 to 1856; 1857 to 1918 and 1919 to 1949.

(i) The East India company

The British authority in India was established through the agency of a

trading corporation - The East India Company - fmmed in England in 1600
under a Chatter of Queen Elizabeth I which gave it the exclusive right of
trading in all pruts of Asia, Afiica and America beyond the cape of Good
Hope, eastward to the Straits of Magellan. The company established its trading
centres or factories at several places in the country and in the course of time
the factories at Bombay, Madras and Calcutta became the chief settlements or

45. Kautilya's Arthasastra, at 494.

 53

presidencies, as they were called, and exercised supervision and control over
subordinate depots and places in their vicinity.

During the period, except Bombay46 whose sovereignty had been ceded
to the British Crown:, wherever the English settled, they did so with the licence
of the Indian Government. Lord Brougham, in Mayor of Lyons v. East India
Co. 47 described the general character of their possession of the settlement of
Calcutta thus:

"The settlement of the company in Bengal was effected by

leave of a regularly established government, in possession of
the country, invested with the rights of sovereignty, and
exercising its powers: that by permission of that government,
Calcutta was founded, and the factory fortified, in a district
purchased from the owners of the soil, by permission of that
government, and held under, by the Company, as subjects
owing obedience as tenants rendering rent, and even as officers
exercising, by delegation a part of its administrative authority.
At what precise time, and by what steps, they exchanged the
character of subjects for that of sovereign, or rather, acquired
by themselves, or with the help ofthe Crownandforthe crown
the rights of sovereignty cannot be ascettained: the sovereignty
has long since been vested in the Crown ..... " 48

The natural consequence of this position would have bee their .

submission to the lex loci. But in general it was not what happened. The personal
character of the law of India and the nature of many of its principles and
penalties made it impossible for men of a different religion and habits of thought
to adopt it for their own use and they were allowed by "the indulgence or

46. The Island of Bombay was ceded to Charles II by the king ofPo~ugal as part of the
marriage dowry of Infanta. Charles II had transferred it to the East India Company in
1669.
47. 1 MIA 175.
4.8. Ibid. at 273-74.
 54

weakness of potentates of those countries" to retain own laws and government

within the settlement. 49

In these circumstances it became necessary, even before the Company

had become a sovereign power in India, that the Crown should grant to them
certain legislative and judicial powers to be exercised by them over the English
servants of the Company and such Indian settlers who placed themselves under
their protection. With regard to the early legislative authority, Queen Elizabeth's
Charter of 1601 granted permission to the Governor and Companyu "from
time to time to assemble themselves .... within our dominions or elsewhere,
and there to hold court for the said company, and affairs thereof:· and that also
it shall and may be lawful to and for them, or the more part of them, being so
assembled and to make ordain and constitute such and so many reasonable
laws, constitutions, orders and ordinances, and other officers, employed or to
be employed in any of their masters mariners, and other officers, employed or
to be employed in any of their voyages, and for the better advancement and
continuance of the said trade and traffic ...... and at at their pleasure to revoke
or alter the same or any of them". 50 The company had also the power to execute
its laws by providing such pains, punishments and penalties by imprisonment
or fme as might seem to them necessary. But the legislative power of the
company was subject to an important limitation : the laws made by it were not
be contrary to the laws, statutes or customs of England.

Similar powers were affirmed by the Charters granted by James I and

Charles II in 1609 and 1661 respectively. These laws were required to be
published, but of them now not a trace remains. Probably they were concerned
with the Company's monopoly of trade and the repression of interference. 51

49. The judgement of the Privy Council in Advocate-General ofBengal v. Ranee Surnomoye
Dossee 9 MIA 391, 429, which quotes with approval the explanation given by Lord
Stowell in "The Indian Chief, 3 Rob Adm Rep 28.
50. East India Company's Charters, Treaties and Grants, (1774), at 14-15.
51. Cowell, at 11
 55

The Charter granted by William III in 1698 makes no mention of legislative

powers. It may be held that they were withdrawn. 52

In George I's Charter of 1726 men on the spot, the Governors in Council
of the three persidencies, were given the power to make, constitute and ordain
bye-laws, rules and ordinances for the good government and regulation of the
several corporations thereby created and of the inhabitants of the several towns,
places and factories, and to impose pains and penalties upon all persons
offending against the same.

As before, the condition was that such laws or penalties were not to be
repugnant to English law. A new provision, which did not appear in earlier
Charters, was imposed. They were not to have the force oflaw unless "approved
and confirmed by order in writing of the court of Directors". 53

The Charter of 1726 also introduced in all the three presidencies a

Mayor's Court which was not the company's Court but the Court of the King
of England, "though exercising its authority in a land to which the kind of
England had no claim to severeignty". 54 The charter of George II granted in
the year 1753 is exactly similar to that of George I.

The government of each presidency vested in a Governor and a Council

consisting of senior servants of the Company. The Governor and the Council
jointly exercised their powers. Nothing could be transacted except by a majority.
· The three presidences, in exercising their legislative and executive powers,
were independent of each other, and each government subject to the control of
the Board of Directors at home, was absolute within its limits. 55

The areas under the Company's government during this period were so
small that by now the early Charters would have been forgotten, had not their
grantees subsequently become the sovereign of India. The only point worth

52. MC Report, at 47.

53. East India Company's Charters etc., 1774, at 394-95.
54. Rankin: Background to Indian Law, (1946), at 1.
55. Ilbert, at 42-43.
 56

emphasising in the early Charters is that the governmental functions are

classified as executive, legislative and judicial, though they are exercisable
for the most part by one and the same body.

It was not till middle of the 18th century that the English had departed
from the Character of merchants and factors, but then event occured- victories
of Plassey (1957) and Buxar (1764)- which made them virtual masters of
Bengal. The Company's career as a territorial power may be treated as having
begun from 1765, when it obtained the grant of Diwani from Shah Alam who
it accepted as the rightful claimant to the throne of the Moghul Emperors.
This grant was expressed to cover the provinces of Bengal, Bihar and Orissa.
The company did not undertake the administration of Diwani - revenue and
civil justice - by its own servants until 1772, but when in that year it "stood
forth as Diwani the President in Council promulgated a body of laws, what is
commonly known as the plan of Warren Hastings" 56 It consisted of 37 rules or
sections dealing with civil and criminal justice. This legislation was made not
in exercise of any parliamentary grant of power, but in the exercise of Diwani
of Bengal. 57

(ii) Regulating Act, 1773

The Act set up a government in Bengal consisting of a Governor-

General and four Councillors, in whom the whole civil and military government
of the Presidency of Bengal, and also the government and the territorial
acquisitions and revenues in the kingdoms of Bengal, Bihar and Orissa (Diwani
lands) was vested. The government of the Presidencies of Bombay and Madras
were subordinated to the Governor -General and Council, who constituted the
supreme Government in India. Another important provision of the Act
empowered, the Crown to establish by Charter a Supreme Court in Bengal
with jurisdiction to hear criminal complaints against the British subjects and

56. Harrington's Bengal Regulations, (1815-17).

57. Imperial Gazetteer ofIndia, Vol. rv, at 129.
 57

their servants residing in Bengal, Bihar and Orissa. The civil jurisdiction of
the Court was to extend to all British subjects residing in the three provinces
and the employees of the company or of the British subjects. As regards
legislation, the Govetnor - General and Council were empowered to make
and issue such "rules, ordinances and regulations for the good order and civil
government of the said United Company's settlement at Fort William and
factories and the places subordinate thereto, as shall be deemed just and
reasonable ... and to set and impose reasonable, fmes and forfeiture for the
breach and non-observance thereof'.

The act subjected the legislative authority of the Govetnor - General

and Council to certain conditions. Firstly, the rules and regulations made by
them were not to be repugnant to the laws of England . Secondly, they required,
as a condition to their validity, registration by the Supreme Court. The
registration was not intended to be only a method of the promulgation oflaws
but the Supreme Court had the power to veto the laws submitted to it for
registration. Thirdly, an appeal from regulation so registered and approved lay
to the king-in-council in England, but the pendency of such an regulations to
England and the power was reserved to the king in-council to disapprove
them at any time within two years. 58

Provision was also made to give publicity to the regulations made by

the Governor- General and Council. The Supreme Court could make
registration only after the expiration of a period of twenty days from the open
publication and display of a copy of the regulations in some conspicuous part
of the supreme court. 59

(iii) The Act of 1781

By another Act of Parliament passed in 1781 60 , the Governor - General

and Council were empowered to frame regulations for the "provincial comts

58. Ibid., S. 36.

59. Ibid.
60. 21 Geo III C. 70.
 58

and councils". Copies of these regulations were required to be sent to the

Court of Directors and the Secretary of State, who might disallow them within
two years. Thus from 1781 the legislative powers of the Governor - General
and Council were derived from two Parliamentary Acts, the Regulating Act
of 1773 and the Act of 1781. But the powers under the two Acts differed in
respect of their tenitorial extent, the ambit of subject matter of legislation,
and the mode of their exercise. The power under the Regulating Act was
intended to apply to the Company's settlement at Fort William (Calcutta) and
other places subordinate thereto, while the Act of 1781 authorised the making
of regulations for the "territorial acquisitions of Bengal, Bihar and Orissa" i.e,
Diwani Kingdoms. 6 1. Although the Regulating Act clearly delimited the
territmial extent of the legislative powers granted in it, it was for some time
interpreted to include even the area under the Diwani grant. 62 In respect of the
subject matters, the powers of the Supreme Court under the Regulation Act
were of wide amplitude. It enabled them to make laws for "the good order
and civil government of the settlement and all factories and places subordinate
thereto".

The act of 1781, on the other hand, gave power only to legislate for the
provincial courts and councils. Literally interpreted, the power (and in the
context in which the enabling sections occur)63 was meant only to make rules
prescribing procedure and practice of the courts. But in fact the Supreme Court
had made most of the Bengal Regulations, many of which affected the rights
and property of the subject, under the power conferred by the latter Act. After ·
several years of excercise of the power, Parliament itself seems to have
acquiesced in the extended interpretation put on the Act. In an Act passed in
119764 , Parliament refers to the power under the Act of 1781 as if it were one
of making a regular code to affect the personal and proprietary rights of the

61. Harrington: Analysis ofthe law and Regulations of Bengal, at. 8, Note 2; Keith: A
Constitutional History ofIndia, (1936), at 90.
62. Cowell, at 67.
63. See Sc. 21,22 and 23 of21 Geo.
64. 37 Geo III C 142, S. 8
 59

Indian subjects and other amenable to the Company's court. Finally, as regards
the mode of exercise of the two powers, we have already noted that registration
by the Supreme Court was a condition precedent for laws made under the
Regulating Act to come into operation. No such stipulation attached to the
power granted under the Act of 1781. Further, there was no provision in the
1781 Act corresponding to the provision in the Regulating Act that the laws
made by the Governor-General and Council must not be repugnant to English
laws.

The only material difference betwen the two powers, which continued
until the Act of 1833, was that the Supreme Court did not consider itself bound
by a law made by the Governor General· and Council unless it was registered
as provided in the Regulating Act. 65

The mode of exercise of legislative power prescribed - In 1793 the

Bengal Government issued a revised and amended code of regulations, a body
offorty enactment commonly called the Cornwallis Code. Regulation XLI of
the Code entitled 'A' Regulation for forming into a regular code all regulations
that may be enacted for the internal govemment of the British territories in
Bengal', laid down the moder of exercise of legislative powers which was
subsequently approved by Parliament. The main provisions of the Regulation
may be summarised as below .66

(a) All regulations affecting in any respect the rights, person or prop
provincial courts of judicature, shall be recorded in the judical depart
ment, and there framed into regulations, and ptinted and published in
prescribed form, with translations in the current languages of the country.

(b) The regulations passed shall be annually numbered and divided into
sections and clauses so as to constitute a regular code.

(c) Every regulations shall have a title expressing the subject of it, and a
· preamble stating the reasons for the enactment of if.

65 13 Geo III C 63.

66. Harrington's Analysis, Vol I.
 60

(d) If any regulation shall repeal or modify a former regulation, the reasons
for such repeal or modification shall be stated in the preamble.

(e) The civil and criminal courts ofjustice shall be guided in their proceedings
and decisions by the above regulations and by no other.

(iv) The Charter Act of 1797

The Charter Act of 1797 67, approving the Regulations XLI, declared that "so
wise and salutary provision be strictly observed, and that it should not be in
the power of the Governor - General in Council to neglect or dispence with
the same".

Madras and Bombay - Subsequently the local government of Madras and

Bombay, in 1800 68 and 1807 respectively, were invested within the tetritories
subject to their government with the same legislative powers and exercisable
in the same manner as had previously been given to and exercised by the
69
Bengal Government. As the Acts of 1800 and 1807 came after the Act of
1797, it might reasonably be considered that the local Governors and Councils
had legislative powers conferred on them, not as defmed by the Acts of 1773
70
and 1781, but as recognised and confirmed by the Act of 1797.

(v) The Charter Act of 1813

By the Charter Act of 1813 71 the powers of all three councils were
enlarged and at the same time subjected to greater to greater control by
Parliament. Their regulations became applicable to all persons who should
proceed to India within the limits of their government. 72 They were empowered

67. 37 Geo II C 142, S. 8.

68. 39 Goe III C 79, S 11.
69. 47 Geo III C 68, S. 3.
70. Cowell, at 71.
71. 53 Geo III C 155.
72. Ibid, S. 35.
 61

to make articles of war 73 and to impose custom duties and other taxes. 74 Copies
of regulations made by the three councils were required to be annually laid
before Parliament. 75 In this way for another twenty years the tln:ee councils
continued to make regulations each independently of the other. Copies of all
regulations passed in Madras and Bombay were sent to Calcutta, but it does
not appear that they were submitted for approval before being passed. The
legislative powers of the Governor - General and Council were confmed both
by its constitution and in practice to the presidency of Bengal.

To summarise, we can say that from the early period of British rule in
India certain principles had become operative in the administration of the
count:ty; that legislation was the pdvilege of a duly constituted authority; that
the exercise of legislative authmity needed publicity and that arbitariness and
oppression on the part of the administration could be checked by prescdbing
by law the rights and duties of officials and public authodties.

(vi) The Charter Act of 1833

The Charter Act of 1833 76 int:t·oduced important changes in the system

oflegislation of India. In the first place, it vested the sole legislative power in
India in the Governor - General in Council, which considered of the Governor
General and four ordinary members. Three of the ordinaty members were to
be appointed from persons in the covenanted services of the East India
Company, and the fourth from persons who had never been in the service 77 •
The duty of ordinary member (usually referred to as 'law member') was
confined entirely to the subject of legislation. He had no power to sit or vote
except at meetings for the purpose of making rules and regulations, and it was
only by courtesy, and not by tight, that he was allowed to see the papers and

73. Ibid, S. 96.

74. Ibid, Ss, 98 and 99.
75. Ibid, S. 66.
76. 3 and 4 Wills IV C. 85.
77. Ibid, S. 40.
 62

correspondence, or to be made acquainted with the deliberations of the

Government upon any subject not immediately connected with legislation. 78

The existing powers of the councils of Madras and Bombay were

superseded. They were merely authorised to submit to the Governor - General
in Council drafts or projects of any laws which they thought expedient, and
the Governor - General in Council was required to take these draft and projects
into consideration and to communicate his decision thereon to the local
government proposing them. 79
The exclusive legislative authority of the Governor- General in Council
extended to the making oflaws all persons, places, ~gs and courts whatever
within and throughout the whole and every part of the Company's possession
in India. But this power did not extend to the enactment of laws with respect
to certain specified matters. 80 There was also an express saving of the right of
Parliament to make laws for India. No registration or publication in any court
was required to give them validity. 81

The executive authority of the Governor- General in Council extended

to the superintendence, direction and control of the whole civil and militru.y
government of the Company's possession in India.

The laws made under ·the previou Acts were called Regulations but the
laws made under the Act of 1833 were known as Acts. Law made by the
Governor - General in Council were subject to disallowance by the Court of
Directors, but when made were to have "the same force and effect" within and
without the said territories as any Act of Parliament.

(vii) The Act of 1853

The Act of 1853 82, renewing the Chatter of 1833, took a dicisive step
in differentiating the legislative machinery from the executive. Under the new
78. See Minutes of Sir Barnes Peacock, dated 3rd November, 1859.
79. 3 and 3 Will IV C. 85, S. 66.
80. Ibid., S. 43
81. Ibid., S. 45
82. 16 and 17 Vic. C. 95.
 63

Act the Governor- General's council, when acting in its legislative capacity,
was enlarged by the addition of six new members called 'legislative members'.
These were : the Chief Justice of Bengal; a puisne Judge of the Supreme
Court; and four officials severally appointed by the provincial Government of
Madras, Bombay,
Bengal and nmih-western provinces. 83 The fourth ordinary member
(the 'law member') who had been hitherto merely a member of the council for
legislative business, became a full member with right to participate in legislative
as well as executive business. 84 Six members, in addition to the Governor-
General or the Vice-President, were necessary to form the quorum, and the
presence of oe of the Judges or the fomth ordinary member was made necessary
for transacting legislative business. 85

But no law by the council could be promulgated until the same had
been assented to by the Governor-General, whether he had been present or not
at the meeting of the council. The Governor-General thus got the right of veto
which he did not possess under the Act of 1833.

For the first time, after the Act of 1853 86, the legislative business of
India came to be transacted in public. Formerly all discussions upon the subject
of a proposed legislation were conducted in private like any other executive
business. Consequently, if a law were rejected after having been published for
general information the public had no means of knowing the cause of its
rejection. Likewise, if a law was published for general information, and
alterations or modifications were suggested which were not embodied in the
Act when passed, the public had no means of ascertaining whether the
suggestions had been duly considered, whether due weight had been given to
them, or whether they had been rejected without sufficient reason. 87 Under the
new system the press reporters were always present and the reports of the
83. Ibid. S. 22
84. Ibid., S. 21
85. Ibid, S23
86. 16 and 17 Vic C 85, S. 24
87. Minutes of Sir Bame Peacock, dated 3rd November, 1859.
 64

proceedings of the council came to be published and were made available to

the public. 88

The two other changes made in the legislative procedure were : (i)
referring of Bills to select committees instead a single member; and (ii) the
discussion in council became oral instead of in writing. 89

Lord Dalhousie started the new Legislative Council "with some

90
flourish" • It was to be conducted with considerable formality on the lines of
the English House of Lords, with a hundred and thirty-six standing orders and
a Hansard to itself. 91 The new council conceived its duties extending beyond
legislation. It very soon began to question the policies of the Executive
Government and claimed to be a Legislature having jurisdiction to procure
redress of grievances committed by the Executive. No such authority was
contemplated by the farmers of the Act. 92 As we shall see, it was made quite
clear in the subsequent Act that it had no jurisdiction in the nature of grand
inquest of the nation. 93

The first war of Indian Independence in 1857 brougth the career to the
East India Company to an end. In 185 8 94 the Government of India was placed
directly under the Crown through the Secretary of State for India. No change
was made in the constitution of the Government ofindia until1861 when, by
95
the Councils Act of the year, the legislative system was remodelled. For
purposes of legislation the Governor-General's council was reinforced by
additional members, not less then six, not more than twelve in number,
nominated for two years, of whom not less than half were to be non-officials.%
88. Ibid.
89. Cowell, at 80.
90. Lee Warner's Life ofDalhousie, Vol II, at 239.
91. Rankin: "Background to Indian Law". at 64.
92. Martineau's Life ofSir Bartle Frere, Vol II, at. 336 (letter from Sir Charles Wood to
Frere): quoted in Rankin: Back ground to Indian Law, at 65.
93. Speech of Sir Charles Wood in the House of Commons, quoted in MC Report, at 52.
94. 21 and 22 Viet C. 106.
95. 24 and 25 Viet,. G 67.
96. Ibid, S. 10.
 65

The legislative power of the Govetnor - General in Council was extended

over all persons, whether. British or Indian, foreigners or others, within the
I .
Indian dominions of Her Majesty, and over all courts of justice and over all
! .
places and things within tJ;Ie said territories, and also over all British subjects
I

within the dominions of Illdian State. 97

The Act restored to the governments of Madras and Bombay the powers
of legislation which had been withdrawn by the Charter Act of 1833. But their
law-making powers were exercisable in legislative councils formed by
expanding the Governor's council on the same lines as the Governor -
General's. 98 Authority was given to the Governor- General in Council to
establish similar legislative councils was given to the Governor - General in
Council to establish similar legislative council for Bengal, theN orth - Western
Provinces and the Punjab. 99 Immediate action was taken in Bengal (1862), but
legislative councils were not established in the North Western Provinces and
the punjab, until1866 ad 1897 respectively. The legislative relations between
the Centre and the provinces under the Act of 1861 differed from those existing
between the Supreme Government and Madras or Bombay under the 1833
Act in two important respects.

Firstly, certain provincial Acts had to receive the previous assent of the
Governor-General, and in all cases they had to receive his subsequent assent. 100
Secondly, jurisdiction of two legislatures was not exclusive but concurrent.
The functions of the central legislative council, as of the provincial councils,
were strictly limited to legislation. Section 19 of the Act enacted :

" No Business shall be transacted at any meeting .......... other

than the Consideration and Enactment of Measures introduced
into the Council for the purpose of such enactment. ... "

Thus by strict delimitation of functions Parliament made it clear that

97. Ibid, S. 22
98. Ibid, S. 29
99. Ibid, . 44
100. /bid, Ss. 40 and 43.
 66

the councils were not deliberative bodies with respect to any subject but that
of immediate legislation before them. They could not inquire into grievances,
call for information, or examine the conduct of the Executive. The acts of
administration could not be impugned, nor could they properly be defended in
such assemblies except with reference to the particular measure under
discussion. 101

The Act of 1861 was amended by the Indian Councils Act of 1892. 102
The Act increased the number of additional members in the central as well as
provincial councils. But the official majority was maintained. The powers of
the legislative councils were also increased. By rules made under the Act the
members were allowed, subject to certain restrictions, to ask questions. In
addition, they were allowed to take part in the annual discussion of the budget
to draw attention to any fmancial matter they pleased. 103

By the Minto-Morley Reforms of 1909104 the membership ofthe councils

was increased. The number of additional members in the Central Legislative
Council was fixed at sixty, of whom not more than 24 were to be non-officials;
and thus the official majority was continued in the Central Council as before.
Their functions were also widened. Under the Act of 1892, the budget could
be discussed but no resolution could be demanded. Under the new Act, the
right to ask for division on the budget was conceded. The right of interpolation

101. Cowell, at 96.

102. 55 & 56 Viet C. 14
103. The Act made a limited and indirect provision for the use of election in filling up some
of the non-official seats both in the provincial councils and in the Central legislative
Councils. The word 'election' was, however, not used in the Act. The process was
described as nomination made on teh recommendation of certain bodies. In the case of
the Indian Legislative Council, five additional members were thus brought in, one
being recommended by the non-official members were thus brought in, one being
recommended by the non official members of each of the four provincial councils and
one by the Calcutta Chamber of Commerce (Report ofthe India Statutory Commission,
Vol. I, at 116)
104. 9 Edn., VII, C4.
 67

105
was likewise extended so as to allow a member to ask a supplementary.

Executive and Legislative Relations - Down to the year 1919 legislation

was primarily the prerogative of the Executive. No doubt legislative councils
had been established and their size and functions enlarged under successive
Parliamentary Acts, but at no time during this period were they considered as
parliamentary bodies to which the Executive owed any responsibility for its
administrative or legislative acts. On the contrary, legislative councils were
conceived to be only government in their legislative capacity. The nucleus of
the law-making body was the Governor - General in Council to which
"additional members" were summoned for discussing and passing enactments.
The Viceroy presided over legislative discussions, no less than over executive
consultations. The discharge of the responsibility discussions, no less than
over executive consultations. The discharge of the responsibility of the
Executive for legislation in the Central Legislature was ensured by maintaining
an official majority. Lord Morley, the then Secretary of State for India, in
justification for keeping an official majority in the central legislature laid down:

"The Governor-General in Council in its legislative as well

as its executive character should continue to be so constituted
as to ensw·e its constant and uninterrupted power to fulfil the
constitutional obligations that it owes and must always owe
to His Majesty's Govemment and to the hnperial Parliament. 106
The particular matter. In describing the role of the official in
the council, the Report on the Indian Constitutional Reforms
(1918) said: 'The proceedings in Council has been controlled
by the Government. Generally speaking government officials
are not expected to ask questions or move resolutions .. .. when

105. The Act of 1909 gave direct approval to the principle of election for the return of repre
sentatives to the councils from recognised corporate bodies, associations, classes and
interests but except in the cases of newly created landholders', Mohammedans' and
(in the Punjab) Sikhs' constituencies, the method of election, as before, remained
indirect.
106. Quoted in MC Report, at 66.
 68

a division is taken the official members nearly always vote

by order in support of the govemment' ." 107

It may be emphasised here that there could hardly be any comparison

between the govemment' s mandate directing the official members of the Indian
Legislative Council to support its view and the rigidity of the patty discipline
in a pat·liatnentary system of govemment. No doubt a member of Parliament
ordinarily acquiesces to the party whip's bidding and votes as directed to in
any particular matter. But here what induces his acquiescence is the knowledge
that the defeat of the govemment would mean change in the Ministry and,
therefore he conceives it his duty to sacrifice his personal opinion on a particular
matter in the interest of the greater principles for which his party stands.
Moreover, there is a limit to the party loyalty. There are occasions when a
member asserts his own judgement and the govemment falls, because some
of its supporters refused to uphold its decisions. The ultimate responsibility of
the members is to the people. In the Indian Legislature, as constitured then,
the obligation of official members to support the govemment was continuting
and was not motivated by any necesity for keeping a govemment in office,
which by law was irremovable on an adverse vote of the legislature.

(viii) The Government of India Act, 1919

On August 20, 1917, an important announcement defming goverment
policy was made by the Secretary of State for India in the House of Commons.
"The policy of His Majesy's Govemment", said the Secretary of State, "with
which the Govemment of India are in complete accord is that of the increasing
association of Indians in every branch of the administration and the gradual
development of self-goveming institutions, with a view to the progressive
realisation of responsible govemment in India as an integral part of the British
Empire". The declaration was of great significance; for hitherto there was no
intention of introducing any measure of responsible govemment in India. In
1909, the then Secretary of State for India, Lord Morley, expressly disclaimed

107. MC Report 81.

 69

any desire to advance towards responsible government. He stated : "if it could

be said that the chapter of reforms led directly or indirectly to the establishment
of a parliamentary system in India. I, for one, would have nothing at all to do
with it." But events are stronger than reformers, and the goal which was
emphatically disclaimed in 1908, was emphatically and authoritatively
announced in August 1917.
The Montagu-Chelmsford Reforms which were the proposals put
forward by Mr Montagu, the then Secretary of State, and Lord Chelmford
were embodied in the Government of India Act, 1919. The preamble to teh
Act adopted Mr Montagu's declaration of August 1917.

The Statutory commission (Simon commission) - The system of

Provincial dyarchy embodied in the reforms of 1919 failed to fulfil the hopes
build upon it. The ministerial responsibility in respect of transferred matters
worked inefficiently.

In large measure, the Governor came to dominate the ministetial policy,

partly because fmance was mainly under his control and pat.tly because the
official bloc was so large that it could not sustain in office a ministry unfriendly
to it. There was a president demand for further reforms. The Government of
India Act, 1919, had provided for the appointment of a statutory commission,
after the expiry of ten years from the passing· of the Act, to inquire and report
on the condition of India under its new Constitution. The commission
contemplated in the Act, was appointed in 1927. The commission reported in
1930. The Report declared that dyarchy had outlived its usefulness, and
recommended a large extension of responsible government in the Provinces.
It recommended that until this ideal could be realised, problems affecting British
India and the States should be discussed between the pat.ties in a consultative
but not legislative Council of Greater India, consisting of representatives drawn
from the States and the British India Legislature. At that time it was not
anticipated that the States would be willing to enter an all - India federation in
the very immediate future. But in 193 0 a new factor became active. The Indian
Princes manifested an unexpected readiness to accede to a federal system. It
 70

became necessary to reconsider the whole position. The British Government

thereupon convened a 'Round Table Conference' of the representatives of the
British Government, the Princes and British India. On the basis of its results
Government White paper108 was prepared embodying the outline of the refmms.
The white paper was submitted to a joint Select Committee of Parliament. 109
The Committee was assisted by an Indian delagation. After prolonged sittings,
the joint select Committee submitted an elaborate Repmt.

The Government of India Bill was introduced embodying, with certain

modifications, the proposals put forward in the Report. The Bill was extensively
amended during its passage. On August 2, 1935, the Bill received the Royal
assent.

(ix) Government of India Act, 1935

The main provisions of the Act are stated below :

A. Statutory Division of Power

The Act made a division of powers between the Centre and the Provinces.
Certain subjects were exclusively assigned to the Central or Federal Legislature,·
others to the Provincial Legislatures. Over yet another field the two had
concunent powers of legislation. Residuary powers of legislation could by
assigned by the Govetnor-General to the Provinces or the Centre. The respective
spheres of government of the Centre and the Provinces followed the
delimitation of legislative powers.

B. The proposed All-India Federation

The Act proposed to substibJte a federal for what was in substance a

unitaty system of government. The consitutent units of the Federation were to
be the Governor's Provinces and the Indian States. The accession of the States

108. (1933) Cmd 4268.

109. Lord Linlithgow (Later,Govemor-General) was the Chairman of the Joint select
Committee.
 71

to the Federation was optional. The federation could not be established until
the States entitled to one-half of the States' seats in the Upper House of the
Federal Legislature and having one-half of the States' seats in the Upper House
of the Federal Legislature and having one-half of the total States' population
had signified their assent to join: the Federation. The terms on which a State
joined the Federation were to be set out in an Instrument ofAccession. The
Federal Legislatuer could make laws for the States only in relation to the
matters specified in the Instrument ofAccession.

The Federal Executive was to be composed of the Governor- General

and a council of Ministers. The ministers were to be chosen and appointed by
the Governor - General. From the ministerial control were to be reserved
external affairs, defence, ecclesiastical administration and trial areas. In other
matters the Governor-General was normally to act on ministerial advice, but
could act independently in matters entrusted to his special responsibility. The
Governor- General had full powers to legislate in respect of a reserved subject
or a special responsibility, either by a temporary ordinance or a parmenent
Act. He was also authorised to issue temporary ordinances on advice of his
ministers. In the event of a breakdown of the constitutional machinery the
Governor-General could assume all or any of the powers vested in Federal
authorities. In relation to the matters entrusted to the Governor-General's
discretion - external affairs, defence, ecclesiastical affairs and tribal areas - he
was to be assisted by three councillors who were ex officio members of both
Houses without the right to vote. But the ministers could be invited to deliberate
with the councillors.

In the Governor's Provinces the executive authority of the Centre

extended to all matters with respect to which the Federal or Central Legislature
could make laws but in the acceding States it extended only to the matters
over which the Instrument of Accession conceded federal control. The Crown's
right of paramountey over the States was not to be exercised by or through the
Federal Government, but continued to be exercisable directly by the Crown
tlu·ough the new office created by the Act of the Crown's Representative. The
 72

Act permitted the combination of the offices of the Governor - General and
the Crown Representative.

The Federal Legislature was to consist of the king, represented by the

Governor-General and two Houses. The Legislative Assembly (Lower House)
was to consist fo 375 members, 125 representing the Indian States. The
representatives of British India were to be elected not directly but indirectly
by Provincial Assemblies, various communities voting separately for their
own representatives in accordance with the system of proportional
representation with single transferable vote.

The members from the States were to be nominated by the Rulers. The
Legislative Assembly, unless sooner dissolved by the Governor - General,
endured for 5 years.

The council of States (Upper House) was to consist of 260 members,

of these 104 were to represent the Indian States, ·and six were to be nominated
by the Governor - General. Of the remaining 150 members, 128 were to be
directly elected by territorial communal constituencies and twenty - two seats
were to be set apart for smaller minorities, women and depressed classes. The
two Houses were to have in general equal power but demand for supply of
votes and fmancial Bills were to originate in the Lowere House. The Act
contained detailed provisions for solving deadlocks by means ofjoint sessions.

C. Governor's Provinces

The executive government of the Provinces vested in the Governor.

The Act provided for responsible government in the Provinces subject to two
limitations : (i) Special responsibilities were given to the Governor on lines
similar to those of the Governor- General save as regards fmance. In regard
to a matter falling under the Governor's special responsibility the ministers
were entitled to tender advice but the Governor in the exercise of his individual
judgement could override them, and (ii) certain matters were placed by the
Act entirely outside ministerial control and relegated to the absolute discretion
of the Governor. To give effect to his special responsibilities the Governor
 73

had power to legislate by temporary ordinances or Acts. He could also make

temporary ordinances at the request of the ministers and in the case of a
breakdown of constitutional machinery, he could by proclamation assume all
powers, vested in or exercisable by any provincial body or authority, except
the High Court.

In Madras, Bombay, Bengal, the United Provinc<;!s, Bihar and Assasm

the Legislatures were bicameral; in other five provinces unicameral. The
composition of the Provinical Assembly varied from Province to Province.
Territorial constituencies elected their representatives by separate communal
electrorates. A substantial portion of the general seats was assigned to the
scheduled castes. Seats were also providep. for Mahomedans and Sikhs in the
Punjab and the North- West Frontier Province, Europeans, Anglo-Indians,
Indian Christians, representatives of commerce and industry, mining and
planting, landholders, labour, universities and women. The normal duration
of the Assembly was five years.

The Legislative Councils (Upper Chambers) were usually elected by

the general constituencies, Mahomedans and Europeans, but in Bengal and
Bihar twenty-seven and twelve seats respectively were filled by the Legislative
Assemblies. The Governor filled by nomination ten seats in Madras, eight in
Bengal and the United ProVinces and four in the other Provinces. Deadlocks
between the Houses were settled by the joint sittings. Grants were voted by
the Legislative Assembly alone and all fmancial Bills organised in the lower
House.

D. The Federal Court

The Act set up a Federal Court. It consisted of a Chief Justice and not
more than six other judges. An increase over six needed the approval of the
Federal Legislature. The judges were appointed by warrant under the Royal
Sign Manual. A judge could be removed on the ground of misbehaviour and
infirmity of mind or body, ifthe judicial committee, on reference by His Majesty,
recommended his removal on that ground.
 74

The Federal Court had exclusive original jurisdiction in any dispute

between the Federation and the Units or the Units inter se insofar as the dispute
involved any question (whether of fact or law) on which the existence or the
extent of a legal right depended. But where a State was a party, the jurisdiction
extended to a dispute which : (i) concerned the interpretation of the Government
oflndia Act, 1935, or of an Order in Council made thereunder or the extent of
the legislative or executive authority vested in the Federation by vi.Itue of the
Instrument ofAccession of that State: or (ii) arose under an agreement relating
to the administration of Federal Legislation in the State; or (iii) arose under
an agreement made after the creation of Federation, between that State and
the Federation or a Province which expressly provided for the exercise of
jurisdiction by the Federal Court. In its original jurisdiction the Federal Court
could only issue declaratory judgements.

Appeal lay to the Federal Court from any High Court in British India if
the High Court certified that the case involved a substantial question of law as
to the interpretation of the Government of India Act, 1935, or of an order in
Council made under the Act. Where such a certificate was given, no direct
appeal lay to the Privy Council, either with or without special leave. Power
was given to the Federal Legislature to extend its jurisdiction in civil matters.

Appeal by way of special case stated could lie to the Federal Court
from a high Court in a federated State on a questio of law concerning the
interpretation of the Act of 1935, or an Order in Council made under it or the
extent of the legislative or executive authority vested in the Federation by
virtue fo the Instrument ofAccession of that State, or arising under an agreement
relating to the administration of Federal legislation in that State.

Under section 203, Government of India Act, 1935, an appeal lay to

the Privy Council. from the Original jurisdiction of the Federal Court in
constitutional matters and by its leave or that of the Privy Council in all other
cases.
The Federal Court also exercised advisory jurisdiction. The Governor
 75

- General could, in his discretion, refer to the Court for consideration a question
of law and obtain its opinion thereupon.
The Act provided that the law declared by the Federal Court and by
any judgement of the Privy Council would be binding on all Courts in British
India.
Subsequent events- The Act of 1935 came into force in regard to the
Provinces in April , 1937. The Central Goernment of British India was
continued to be carried on in accordance with the provisions of the Act of
1919, except that its powers- executive and legislative- were to be restricted
to the matters assigned to it, under the ConsitutionAct of 1935. At the elections
to the new Provincial Legislatures the Congress secured majorities in six
Provinces. The Congress, after the Governor- General had publicity given an
assurance that the Governor would not interfere in the day-to-day administration
of the Province, formed ministries in seven out of eleven Provinces. 110
In september 1939, World War II broke out in Europe. His Majesty's
Government immediately declared India as a belligerent country at war with
Germany. This was done without reference to the legislatures. The Congress
resented the action of the British Govenment. It declared that the issue of war
and peace for India could only be decided by the Indian people, and invited
the British Government to declare forthwith in unequivocal terms what were
their aims and how those aims would apply to India.m On October 18, 1939,
Lord Linlithgow, on behalf ofHis Majesty's Government, made a declaration. 112
The Congress Ministries thereupon resigned and the Governors of seven
Provinces 113 took over the entire control of the administration in their hadns,
as authorised by Section 93 of the Government of India Act, 1935. Opposition
to the Federation had in the meantime been growing and in October, 1940 the
Viceroy announced that the coming into operation of the federal part of the
Constitution would be indefinitely postponed.

110. In 1938 the Congress joined a coalitio Ministry in Sind and Assam.
111. A. C. Banerjee, The Making ofIndian Constitution Document No. 1 at 1
112. Ibid, at 4.
113. The Governor of Assam was able to form an alternative Ministry.
 76

Since the coming of the Congress in office the communal tension had
increased. The Muslim league started the demand for the partition of the
country, so that the areas in which Muslims were in numerical majority should
be grouped together to form Pakistan, involving recognition of Muslims as a
separate nation. The resolution 70 of the Muslim league passed on March 23,
1940, at its Labore session declared that no constitutional scheme would be
workable, 'unles it is designed on the following basic principles, viz., the
geographically contiguous units are demarcated with such territorial
readjustments as may be necessary that the areas in which the Muslims are
numerically in majority, as in the north western and eastetn zones of India,
should be grouped to constitute independent States in which constituent units
shall be autonomous and sovereign. The Muslim League never yielded in its
demand for Pakistan and finally achieved its objective with the passing of the
Independence Act of 1947.

VI. Framework of the Constitution

The Constituent Assembly which was set up in 1946 according to the
Cabinet Mission Plan was not a sovereign body. Its authority was limited both
in respect of the basic principles and procedure. The ndian Independence Act,
1947, established the sovereign character of the Constituent Assembly which
became free of all limitations.
The method which the Constituent Assembly adopted in making the
Constitution was first to lay down its objectives. This was done in the form of
an Objective Resolution moved by Pandit Nehru.

It said:

1. This Constituent Assembly declares is firm and solemn resolve to proclaim

India as an Independent Sovereign Republic and to draw up for her future
governance a Constitution.

2. Wherein the tenitories that now comprise British India, the territories that
now form the Indian States, and such other pmts of India as are outside
British India and the States as well as such other territories as are willing
 77

to be constitued into the Independent Sovereign India Shall be a Union of

them all; and

3. Wherein the said territories, with their present boundaries or with such
others as may be determined by the Constituent Assembly and thereafter
according to the Law of the Constitution, shall process and exercise all
powers and retain the status of automonous units, together with residuary
powers and functions of government and administra_!ion, save and except
such powers and functions as are vested in or assigned to the Union, or as
are inherent or implied in the Union resulting therefrom ; and

4. Wherein all power and authority of the Sovereign Independent India, Its
constituent parts and organs of government, are derived from the people;
and

5. Wherein shall be guaranteed and secured to all the people of India justice,
social, economic and political, equality of status, of opportunity and before
the law; freedom of thought, expression, belief, faith, worship, vocation,
association and action subject to law and public morality; and

6. Wherein adequate safeguards shall be provided for minorities, backward

and tribal areas, and depressed and other backward classes; and

7. Whereby shall be maintained the integrity of the tenitory of the Republic

and its sovereign rights on land, sea and air according to justice and the
law of civilised nations; and

8. This ancient land attains its rightful and honoured place in the world and
makes its full and willing contribution to the promotion of world peace
and the welfare of mankind.

The Constituent Assembly then proceeded to appoint a number of

Committees 114 to deal with different aspects of the constitutional problems.

114. The Union powers Committee, the Union Constitution Committee, the Provincial
Constitution Committee, the Advisory Committee on Minorities and Fundamental
Rights Committees on Chief Commissioners and financial relations between Union
and the States and the Advisory Committee on Tribal Areas.
 78

The repmts of the various Committees were considered by the Assembly

and their recommendations were adopted as basis on which the Draft of the
Constitution had to be prepared. The Drafting Committee was appointed by a
resolution passed by the Assembly on August 29, 1947.

It was charged with the duty of nreparing a Constitution in accordance

with decisions of the Constitutent AsseJbly on the repmts made by the various
I
Committees. The Draft Constitution as it emerged from the Drafting
Committee, contained 315 articles and 8 schedules. It was considered at great
length at the second reading stage, and a number of amendments were made
to the Draft Constitution. The Assembly finalised the Constitution on November
26, 1949. It came into force on January 26, 1950.

(i) The Background of Fundamental Rights in India

The inclusion of a set of fundamental rights in India's Constitution

had its genesis in the forces that operated in the national struggle during British
rule. With the resort by the British executive to such arbitrary acts as internments
and deportations without trial and curbs on the liberty of the press in the early
decades of this century, it became an article of faith with teh leaders of the
freedom movement. Some essential rights like personal freedom, protection
of one's life and limb and of one's good name, derived from the common law
and the principles of British jurisprudence, were well accepted and given at
least in themy statutory recognition in India by various British Parliamentary
enactments relating to the Government and the Constitution oflndia. 115

In India, some fundamental rights had been conceded by the British

Parliament or the Crown. Attention may be drawn in particular to section -

115. For example, section 87 ofthe Charter Act of 1833laid down that "no native ofthe said
territories (i.e., British India) .... shall be reason only of his religion, place of birth,
decent, colour, or any of them, be disabled from holding any place office, or employment
under the Company." The substance of this provision was reproduced in section 96 of
the Government of India Act. 1915. The Government oflndia Act 1935 while continuing
tlJ.is guarantee of non-discrinJ.ination, afforded protection in certain other respects also
(see sections 275 and 298).
 79

298(1) of the Government of India Act, 1935, under which a subject of his
majesty could not be debarred from holding any office under the Crown on
grounds only of religion, place ofbirty, descent, colour or any of them. Similarly,
in the Proclamation of Queen Victoria it was stated:

We declare it to be our royal will and pleasure that none be in

anywise favoured, none molested or disquieted, by reason of
their religious faith or observances; but that all shall alike
enjoy the equal and impartial protection of the law; and we
do strictly charge and enjoin all those who may be in authority
under us that they abstain from all interference with the
religions belief or worship of any of our subjects on pain of
our highest displeasure 116

Nevertheless, in pre-Independence India there was no charter of

fundamental rights of a justiciable nature, and even such safeguards as were
contained in the various statute could be taken away by authority making that
statute. Whether it was the British Parliament or a legislative authority in India.
Moreover, there were in existence laws which, by the setting up of special
courts or by curtailing a subject's rights and liberties, did violence to the basis
principle of fundamental rights.

The position was summed up as follows by B.N. Rau in his report on Human
Rights (December 1947) :

With a few exceptions human rights in India today (December

31, 1947) are not guaranteed by the Constitution, but embodied
in the ordinary law of the land. Legislative activity in this
sphere received a great fillip at the end of World War I, when
the league ofN ations and the International labour Organisation
came into being. India's membership of these bodies and her
participation in their periodical conferences had an immense
educative effect on the Indian public. So too had Mahatma

116. See C. H. Philips, Select Documents on the History ofIndia and Pakistan, Vol. IV. at II.
 80

Gandhi's powerful and persistent efforts to ameliorate the

position of Harijans. Almost simultaneously came the
introdunction of responsible government in the Provinces, at
first partially under the Government of India Act, 1919 and
later almost completely under the Act of 1935. The
Legislatures became more and more responsive to public
opinion and this had the effect of facilitating, if not
compelling, the translation of the new ideals into law. The
process was further accelerated by World War II and the
establishment, upon it close, of the United Nation117 .

As the freedom struggle gathered momentum after the end of the first
world war, clashes with British authorities in India became increasingly frequent
and sharp, and the harshness of the executive in operating its various repressive
measures strengthened the demand for a constitutional guarantee of
fundamental rights. As early as 1985 the Constitution of India Bill - Mrs.
Annie Besant described it as the Home Rule Bill - had envisaged for India a
constitution guaranteeing to eve1y one of her citizens freedom of expression,
inviolability of one's house, 1ight to property, equality before the law and in
regard to admission to public offices, right to personalliberty118 · Following
the publication in 1918 of the Montagu -Chemsford Report, the Indian National
Congress at its special session held in Bombay in August 1918 demanded that
the new Government oflndi Act should include a "declaration of the rights of
the people of India as British Citizens". The proposed declar·ation was to
include, among other things, guarantees in regard to equality before the law,
protecting in respect of association. In the same year, at its Delhi Session in
December, the congress passed another resolutio, demanding "the immediate
repeal of all laws, regulations and ordinances restricting the fi.·ee discussion of
political questions and conferring on the executive the power to atTest, intern,
extern or imprison any British subject in India outside the processes of ordinary

117. Year Book ofHuman Rights for 1947 (United Nations).

118. Clauses 16-21 and 23-4 of the Bill, Select Documents I, 2. at 7.
 81

civil or criminal law and the assimilation of the law of sedition to that of
England". 119

The inclusion of a list of fundamental rights in the Constitution of the

Irish Free State in 1921 also exercised a decisive influence on the Indian
Leaders. The commonwealth of India Bill fmalized by the National Convention
in 1925 embodied a specific "declaration of rights" visualizing for every person,
in terms practically. identical with the relevant provisions of the Irish
Constitution the following rights as fundamental :

(a) Libetty of person and security of his dwelling and property;

(b) Freedom of conscience and the free profession and practice of religion;

(c) free expression of opinion and the right of assembly peaceably and without
arms and of forming associations or unions;

(d) free elementary education;

(e) use of roads, public places, courts of justice and the like;

(f) equality before the law, irrespective ofconsiderations of nationality; and

(g) equality of the sexes. 120

The problem of minorities in India further strengthened the general

argument in favour of the inclusion of fundamental rights in the Indian
Constitution. A resolution passed at the Madras session of the Indian National
Congress in 1927 categorically laid down that the basis of the future
Constitution of India must be a declaration of fundamental rights. 121

The Nehru Committee appointed by the All-Parties Conference in its

report (1928) incorporated a provision for the enumeration of such rights.
Recommending their adoption as part of the future Constitution of India, the

119. B. Pattabhi Sitaramayya, The History of the Indian National Congress (1885-1935),
Vol. I. at. 153-4; Satya Pal and Prabodh Chandra, Sixty Years of Congress, at 213-4.
120. Select Documents I. 11, at 44
121. For text of the resolution, see Nehru Report, at 19.
 82

committee referred to the constitution of the Irish Free State and observed that
Ireland was the only country where the conditions obtaining before the treaty
approximated broadly to those prevailing in India; and the first concern of the
people of Ireland, as of the people of India, was to secure fundamental rights
hitherto denied to them. The Committee added :

"It is obvious that our first care should be have our

fundamental rights guaranteed in a manner which will not
pennit their withdrawal under any circumstances."

Some of the summed up as follows:

(i) Personal liberty and inviolability of dwelling place and property;

(ii) freedom of conscience and of profession and practice of religion subject
to public order or morality;
(iii) right of the free expression of opinion and to assemble peacebly and
without arms, and to form associations or unions, subject to public
order or morality;
(iv) right to free elementary education without distiction of caste or creed
in the matter of admission into any educational institutions, maintained
or aided by the State;
(v) equality for all citizens before the law and in civic rights;
(vi) right of every citizen to writ of habeas corpus;
(vii) protection in respect of punishment under ex post facto laws;
(viii) non-discrimination against any person on grounds of religion, caste or
creed in the matter of public employment, office of power or honour
and in the exercise of any trade or calling;
(ix) equality of the right to all citizens in the matter of access to, and use of,
public roads, public wells and all other places of public resort;
(x) freedom of combination and association for the maintenance and
improvement of labour and economic conditions;
(xi) the right to keep and bear arms in accordance with regulations; and
 83

(xii) equality of rights to men and women a citizen122 .

The Indian Statutory Commission (popularly known as the Simon
Commission) did not support the general demand for the enumeration and
guaranteeing of fundamental rights in a Contitution Act on the ground that
abstract declarations of such rights were useless unless there existed "the will
and the means to make them effective" 123 The Indian National Congress at its
session at Karachi in March 1931 reiterated its resolve to regard a written
guarantee of fundamental rights as essential in any future constitutional set-
up in India124 • The demand for a declaration of fundamental rights in a
constitutional document was again emphasized by several Indian Leaders at
the Round Table Conference held in London in the early thirties.

A memorandum circulated by Gandhi at the second session of the

conference, inter alia, demanded that the new constitution should "include a
guarantee to the communities concerned of the protection of their cultures,
languages, scripts, education, profession and practice of religion and religious
endowments" and protect personal laws, and that the protection of political
and other rights of minority communities should be the concern of the Federal
Government125 • The Joint Select Committee of the British Parliament on the
Government of India Bill of 1934 did not view with favour the demand for a
constitutional guarantee of fundamental rights to British subjects in India.
Expressing its agreement with the views of the Simon Commission the
committee observed :

. . . . there are also strong practical arguments against the

proposal which may be put in the form of a dilemma : for

122.Nehru Report: Select Documents I, 16, at 59-60.

123.Report (1930), Vol. II, para 36.
124.B. Pattabhi Sitaramayya, The HisfOIJI of the Indian National Congress (1885-1935),
Vol . I, at 463-4
125. Another memorandum on the subject was put forward jointly by the representatives of
the minorities. For the texts of the memoranda see the Proceedings of the Fedral Structure
Committee and Minorities Committee, Indian Round Table Conference (Second
Session), Vol. III, Appendices I and III.
 84

either the declaration of rights is of so abstract a nature that it

has no legal effect of any kind, or its legal effect will be to
impose an embarrassing restriction oil the powers of the
legislature and to create a grave risk that a large number of
laws may be declared invalid by the courts as being
inconsistent with one or other of the rights so declared ...... .
There is this further objection that the States have made it
abundantly clear that no declaration of fundamental rights is
to apply in State territories; and it would be altogether
anomalous if such a declaration had legal force in part only
of the area of the federation 126 .

The Committee conceded that there were some legal principles which
could appropriately be incorported in the new Constitution. Accordingly,
sections 275 and 297 to 300 of the Government of India Act, 1935, conferred
certain rights and forms of protection on British subjects in India. The sections
inter alia, provided :

(1). No person shall be disqualified by sex for being appointed to any civil
service of, or civil post under, the Crown in India except a service or post
specified by order made by the Governor - General, Governor or Secretaty
of State (section 275)

(2). No British subject domiciled in India shall be ineligible for office under
theCrown in India or be prohibited from acquiring, holding or disposing
of property or catzying on any occupation, trade, business or profession
in British India on grounds only of religion, place ofbrith, descent, colour
or any of them (section 298),

(3). No person shall be deprived of his property in British India save by the
· authority of law (section 299).

But it is worth noting that on the recommendation of the committee

certain vested interests were also safeguarded : among these were grants of

126. Report (1934), para 366.

 85

land or tenure of land free of land revenue or subject to remissions of land

revenue like talukdaris, inamdris andjagirdaris [section 299 (3)]

The subject of fundamental rights figured prominently in the

deliberations of the conciliation Committee (also known as the Sapru
Committee) appointed by an All-parties; Conference (1944-45). The committee
was of the opinion that however inconsistent with· British law it might be, in
the "peculiar circumstances of India" fundamental rights were necessary not
only as "assurances and guarantees to the minorities but also for prescribing a
standard of conduct for the legislatures, governments and the courts". The
committee felt that it was for the constitution - making body to settle first the
list of fundamental rights and then to undertake their division into justiciable
and non-justiciable rights and provide suitable machinery for their
enforcement127 •

The British Cabinet Mission in 1946 recognized the need for a written
guarantee of fundamental rights in the Constitution of India. In paragraphs 19
and 20 of its statement of May 16,1946, envisaging a Constituent Assembly
for framing the Constitution for reporting inter alia on fundamental rights 128 •

By the objectives Resolution adopted on January 22, 1947, the

Constituent Assembly solemnly pledged itself to draw up for India's future
governance a constitution wherein "shall be guaranteed and secured to all the
people of India justice, social, economic and political, equality of status of
opportunity and before the law: freedom of thought, expression, belief, faith,
worship, vocation, association and action, subject to law and public morality"
and wherein adequate safeguards would be provided for minorities, backward
and tribal areas and depressed and other classes 12?. Two days after the adoption
of the Resolution, the Assembly elected an Advisory Committee for repmting
on minorities, fundamental rights and on the tribal and excluded areas. 130 The

127. Constitutional Proposals ofthe Sapm Committee (Bombay, 1945), at 256-7.

128. Select Documents I, 48 (i), at 214-6
129. Select Documents II, I. at 4.
130. Constituent Assembly Debates, Vol.II, at 325-7
 86

Advisory Committee in turn constituted on February 27, 1947, five sub-

committees one of which was to deal with fundamental rights. 131

The Sub-Committee on Fundamental Rights, at its first meetig on

_ February 27, 1947, had before it the proposals drafted earlier by the
Constitutional Adviser B.N.Rau, to divide fundamental rights into two classes,
justiciable and non-justiciable. Although the initial reaction of several members
of the sub-committee appeared to be adverse to B.N. Rau's proposal, eventaully
the sub-committee accepted the scheme of embodying in the Constitution
fundamental rights classified into justiciable and non-justiciable rights.

An important question that faced the sub-committee was that of the

propriety of distributing such rights between the Provincial, the Group and
the Union Constitutions. Such a possibility had been contemplated in paragraph
20 of the Cabinet Mission's statement. In the early stage of its deliberations
the sub-committee also proceeded on the assumption of this distribution and
adopted ce1tain rights as having reference only to the Union and ce1tain others
as having reference both to the Union and the constituent units. However, the
volume of opinion against such a distribution grew both outside and inside
the sub-committee and proved decisive. If they differed from group to group
or from unit to unit or were for that reason not uniformly enforceable, it was
felt "the fundamental rights of the citizens of the Union would have no value".

Accordingly, while recognizing that certain basic human rights must

be guaranteed to eve1y resident and the rights incidental to citizenship limited
in application to the citizens of the Union, the sub-committee recommended
that all the rights incorporated, whether of the Union or the units". This was
132
sought to be achieved by providing by definition in the frrst clause on the

131. The Sub-Committee on Fundamental Rights consisted of: J.B. Kripalani, M.R. Masani,
K. T. Shah, Rajkumari Amrit Kaur, Alladi Krishnaswami Ayyar, Sardar Harman Singh,
Maulana Abul Kalam Azad, B.R. Ambedkar, Jairamdas Daulatram and K.M. Munshi.
The President of Constituent Assembly was authorized to nominate additional
members.
132. The suggestion was made by B.N. Rau and accepted by the sub-committee.
 87

subject of fundamental rights that unless the context otheiWise required, the
expressio "the State" included the Legislatures and the Governments of the
,_

Union and the units and all local or other authorities within the territories of
the Union, that "the Union" meant the Union of India and that "the law of the
Union" included any law made by the Union Legislature and any existing
133
Indian Law as in force within the Union or any part thereof • Clause 2
provided:
All existing laws or usages in force within the territories of
the Union inconsis tent with the rights guaranteed under this
Constitution shall stand abrogated to the extent of such
inconsistency, nor shall the Union or any unit make any law
taking away or abridging any such right134 •
Before formulating its list of fundamental rights the sub-committee
fully discussed the various drafts submitted by its members and others; the
135
notes and memoranda- apart from those circulated by B.N. Rau - that
received particular attention were those submitted by Alladi K.tishnaswami
Ayyar, K.M. Munshi and B.R. Ambedkar136 • Referring to the chapter on
fundamental rights in his draft, Ambedkar observed that it required no
justification in so far as the necessity for fundamental rights was recognised
in all constitutions - old and new. The rights incorporated in his draft, he
pointed out, were borrowed particularly from the constitution of countries
where the conditions were more or less analogous to those existing in India137 .
The draft report of the sub-committee completed on April3, 1947, was
circulated to its members with the explanatmy notes on the various clauses
prepared by B.N. Rau.

133. Sub-committee on Fundamental Rights: Minutes and Report. Select Documents II, 4
(vii) and (viii), at. 138, 163, 171. The annexure to the report contained the list of the
proposed clauses -clause I dealing with definitions, clauses 2 to 32 under Part I covering
justiciable rights and clauses 33 to 45 under Part II covering non-justiciable rights.
134. Clause 2 was based on article 1 (4) in Munshi's draft. Select Documents II,4 (ii) at 73.
135. Select Documents II, 2, at21-36.
136. Ibid., at 67-114.
137. Select Documents II, 2 at 97
 88

The clauses contained in the draft report were thereafter discussed in

the sub-committee in the light of the comments offered by the members and
the fmal report was submitted to the Chairman of the Advisory Committee on
April 16, 1947. Three days later the sub-committee on Minorities examined
the draft clauses prep~ed by the Fundamental Rights Sub-committee and
repmted on the subject of such rights from the point of view of the minorities 138 .
The Advisory Committee deliberated on the recommendations made by the
two sub-committee and accepted the recommendations for (i) Classification
of rights into justiciable and non-justiciable rights, (ii) certain rights being
guaranteed to all persons and certain others only to citizens and (iii) all such
rights being made uniformly applicable to the Union and the units. The
committee also accepted the drafts of clauses 1 and 2 - the former providing
for the defmition of" the State", "the Union" and "the law of the Union" and
the latter for laws or usages inconsistent with the fundamental rights being
void - in the form recommended by the sub-committee. In clause 2, however,
the words "notification, regulations, customs" were added between the words
"existing laws" and "or usages" and the word "Constitution" was replaced by
the words "this part of the Constitution". The Advismy committee incorporated
these recommendations in its Interim Report to the Constituent Assembly
submitted on April23, 1947. The interim Report dealt only with justiciable
rights i.e fundamental rights strictly so-called. Later on August 25, 1947. The
Advismy Committee submitted a supplementary report mainly dealing with
non-justiciable rights i.e., the Directive Principles of the State Policy or the
"Fundamental Principles of Govemance" 139 .

The Advisory Committee's recommendations regarding justiciable

fundamental rights were discussed by the Constituent Assembly at its meetings
held in April, May and August 1947 and adopted with certain modifications;
it was made clear that in the light of the decisions taken by the Assembly on
principles, the necessary provisions would be drafted and included in the draft

138. See Interim Report of the Sub-committee on Minorities, April 19, 1947. Select
Documents II, 5, at 207-9.
139. For the texts reports see Select Documents II, 7, at 294-9, 304-6.
 89

Constitution, which would again be placed before the Assembly for its
consideration140 . The various stages through which the clauses on fundamental
rights passed thereafter were similar to those in regard to other parts of the
Constitution. First, the Constitutional Adviser prepared a Draft embodying
the decisions of the Constituent Assembly. This Draft was considered
exhaustively and in details by the Drafting Committee, which prepared a revised
Draft and published it in February 1948. The revised Draft was then widely
circulated. The comments and suggestions received Draft was then widely
circulated. The comments and suggestions received from all quarters were
again considered by the Drafting Committee and in the light of these the
committee proposed certain amendments.

Discussions in the Constituent Assembly of the draft provisions took

place in November and December, 1948 and August, September and October
1949. During these meetings the Assembly considered the various suggestions
for amendment made on behalf of the Drafting Committee as well as those
proposed by individual members of the Assembly. The provisions as passed
by the Assembly were again scrutinized by the Draft Committee and
incorporated with drafting changes wherever necessary in the revised Draft
Constitution. This revised Draft was again 'placed before the Assembly at its
fmal session held in November 1949.

Clauses 1 and 2, as reported by the Advisory Committee, were

considered and adopted by the Constituent Assembly on April29, 1947141 , the
only substantial change made therein by the Assembly being and addition at
the end of clause 2 to the effect that no fundamental right could be taken away
or abridged "except by an amendment of the Constitution" 142 • Although even
thereafter the two clauses undetwent some further revision and redrafting at
the hands of the Constitutional Adviser and the Drafting Committee, the
alterations were mainly verbal.

140. Constituent Assembly Debates, Vol III, at. 379-421, 431-57, 465-530 and Vol. V, at
361-402.
141. Ibid., at 391-9.
142. The amendment was moved by K. Santhanam and accepted by Vallabhbhai Patel.
 90

In the Draft Constitution143 prepared by the Drafting Committee and

published in February 1948 the committee included a proviso to the effect
that while the State was debarred from making any law which took away or
abridged any of the fundamental rights, this would not prevent the "State
from making any law for the removal of any inequlity, disparity or
discrimination arising out of any existing law". The committee explained that
this proviso had been added in order to enable the State to make laws of this
character should not be prohibited. These provisions were discussed in the
Constituent Assembly on November 25, 26 and 29, 1948. These discussions
did not reveal any important difference of opinion. On an amendment moved
by L.K. Maitra, the proviso mentioned above was deleted on November 29.
Otherwise the articles were adopted by the Assembly and incorporated as
articles 12 and 13 in substantially the same form in which they now stand part
ofthe Constitution144 .

After discussing the subject of fundamental rights - described by

Ambedkar as "the most criticized part" of the Constitution- for as many as
thirty-eight days- eleven days in the sub-committee, two in the Advismy
Committee and twenty five in the Constituent Assembly - the Assembly
ultimately adopted the comprehensive and impressive array of fundamental
rights spread over twenty - two articles and divided broadly into seven
categories of right viz., (i) right to equality, (ii) right to freedom, (iii) right
against exploitation, (iv) right to freedom of religion, (v) cultural and
educational rights, (vi) right to property145 and (vii) right to constitutional
remedies.

143. Select Documents Ill, 6, at 520-1; article 8(2), proviso.

144. Constituent Assembly Debates, Vol. VII. at 607-12, 640-2, 644-6.
145. The sub-heading "Right to property" omitted by the Constitution (Forty Forth
Amendment) Act, 1978, S.5 (w.e.f. 20.6.1979).
 91

(ii) Other Constitutions

A. United States of America

In the United States, an interpretation of the word 'state' has become

necessary by reason of that word being used in the 14th Amendment as follows:

" .............. nor shall any state deprive any person oflife, liberty
or property, without due process oflaw; nor deny to any person
within its jurisdiction the equal protection of the laws."

The above prohibition being directed to the 'state', one of the primary
problems before the courts has been to determine what constitutes 'state action'
so as to come within the purview of the above prohibition.

Since First Ten Amendments and the Fourteenth Amendment are

intended to protect the fundamental rights from arbitary invasion by the state,
it has become necessary to interpret the word 'state' whenever an individual
complains of such invasion by the state. In order to give adequate protection
to the individual against all fmms of arbitary action by governmental authority,
the American Supreme Court has enlarged the concept of 'State Action' as far
as possible. Thus, it has been held that the prohibition in the 14th Amendment
extends to any state action, legislative 146, executive 147 or judiciaF 48 and against
any agency exerting any of these powers of the State 149 •

"The Amendments embodying the Bill of Rights were intended to curb

all branches of the Federal Government in the fields touched by the amendments
legislative, executive and judicial. " 150

146. StrauderV. West Virginia, (1879) 100 U.S. 303.

147. Sterling V. Constantin, (1932) 287 U.S 378
148. Norris V. Alabama, (1935) 294 U.S. 587
149. Minneapolis R.Co. V. Beckwith, (1889) 129 U.S. 26 (29)
150 ReidV. Covert, (1958) 354 U.S. 1 (17).
 92

151
Explaining this, the court observed in Exparte Virginia:

'A state acts by its legislative, its executive, of its judicial

authorities. It can act in no other way. The constitutional
provision (14th Amendment), therefore, must mean that no
agency of the state, or of the officers or agents by whom its
powers are exerted, shall deny to any person within its
jurisdiction the equal protection of the laws. Whoever, by
virtue of a public position under a state government ................ .
denies or takes away the equal protection of the laws, violates
the constitutional inhibition; and as he acts in the name of
and for the state, and is clothed with the state's power, his act
is that of the state.'

Whenever there is an allegation of violation of a fundamental right by

the state, any repository of state power is regarded as 'the state' 152 .

Thus, a discriminatory action by the authorities of a State-owned153 ,

State-subsidised15 \ or State-controlled155 agency or corporation156 would be
hit by the guarantee of equal protection.

The concept has been extended to the functions of a committee of the

Legislature while exercising the privileges of the House, e.g., the power to
summon a witness and compel him to testify for the purpose of a legislative
investigation, and a political party which performs a statutory function in
connection with an election. A congressional committee, exercising its
legitimate powers as part of the legislature, to make an inquiry, is subject to
the relevant rights of individuals secured by the Bill of Rights and all relevant
'limitations placed by the constitution on government action:

151. Ex Parte Virginia, (1880) 100 U.S. 339 (347).

152. Home Telephone CO. V Los Angeles (1913) 227 U.S. 278 (286).
153. Missouri V. Canada, (1938) 305 U.S 337 (343).
154. Kerr V. Enoch PF Library, (1945) 326 U.S. 721.
155. Public Utilities Commn. V. Pollak, (1952) 343 U.S. 451 (461).
156. Watkins V. US., (1956) U.S 178 (197).
 93

It follows, on the other hand, that the constitutional prohibition does

not extend to the action of a private individuaF 57 or corporation158 , unless such
individual or corporation acts under the constraint of a law or other authority159,
or the state has lent its support to the private action, thus clothing the private
act with the character of State action160, or a State function has been delegated
to such private body161 • Even a labour union162 • or a Board of Trustees 163 , acting
under statutory powers, has been regarded as a medium of State action.

The concept of 'state action' has thus been enlarged to comprehend

acts done by private persons or bodies exercising statutory powers 164 or
supported by the state 165 , with or without legislative authmity or in abuse of
such authority. 166

Any attempt of the State to abridge a fundamental right, directly or

indirectly is unconstitutional, unless permitted by some provision of the
constitution itself. Even in the granting of a privilege, the state cannot impose
conditions which requires the relinguishment of constitutional rights' 167 • On
the same principle, the right to continue the exercise of a privilege granted by
the Government cannot be made to depend upon the grantee's submission to a
condition, presctibed by the Government, which is hostile to the Constitution168 .

On the same principle, where the state directly or indirectly upholds

the working of a private party organisation which results in racial discrimination

157. Civil Right Case, (1883) 109U.S. 3.

158. Dorsey V. Stuyvesant Corp., (1950) 339 U.S. 981.
159. Nixon V. Herndon, (1927) 273 U.S. 536.
160. Marsh V. Alabama, (1946) 326 U.S. 501.
161. Smith V. Allwright, (1944) 321 U.S. 649.
162. Steele V. L. & NR. Co., (1944) 323 U.S. 192.
163. Pennsylvania V. Board ofTrustees, (1956) 353 U.S. 230.
164. Steele V. L. & NR. Co., (1944) 323 U.S. 192; Pennsylvania V. Board ofTrustees,
(1956) 353 U.S. 230.
165. Smith V. Allwright, (1944) 321 U.S. 649;Marsh V. Alabama, (1946) 326 U.S. 501
166. U.SV. Classic, (1941) 313 U.S. 299; Screws V. U.S., (1945) 325 U.S 91.
167. Frost V. Railroad Commn,. (1927) 271 U.S. 583 (594).
168. U.S. V. Chicago R.Co., (1930) 282 U.S. 311.
 94

in the matter of election to public bodies, the court may interfere with the act
as violative of equal protection169, even though the primary election which is
so discriminatory is held under the party rules and not under the provisions of
a statute 170 .

An appreciable expansion of the doctrine of 'State action' has been

made by the American Supreme court in course of its endeavour to supress
racial discrimination. It has afforded relief against the state, whenever the
state" has become significantly involved in private discrimination" 171 either
by commanding such unconstitutional act, or by placing its power property
and prestige' behind the admitted disctimination172 or by passing a law as will
'encourage discrimination by private persons.

(a) Whether 'State' includes the Judiciary

In the United States, a judicial decision is included in the concept of

State action for the purpose of enforcement of the fundamental rights confeiTed
by the 14th Amendment. In Virginia v. Rives, 173 the Supreme Court observed:

"It is doubtless true that a State may act through different

agencies - either by its legislative, its executive, or its judicial
authorities; and the prohibitions of the Amendment extend to
all actions of the State denying equal protection of the laws,
whether it be action by one of these agencies or by another. 174

"A State acts by its legislative, its executive, or its judical

authorities. It can act in no other way. 175

169. Rice V. Elmore, (1948) 333 U.S. 875

170. Smith V. Allwright, (1967) 387 U.S. 369.
171. Reitman V. Mulkey, (1967) 387 U.S. 369.
172. Burton V. Eilmington Parking Authority, (1961) 365 U.S. 715.
173. Virginia v. Rives, (1880) 100 U.S 313 (318)
174. Ibid.
175. Ex parte Virginia, (1880) 100 U.S 339 (347).
 95

Thus, where a trial or decision itself is vitiated by a violation of a

constitutional guarantee, such as ' due process' or 'equal protection', the
supreme Court would quash a conviction on this ground on a collateral and
post conviction proceeding of certiorari176 or release the prisoner in a proceeding
for habeas corpus. 177

The 'Due Process' guarantee has bee available against a judicial

decision, both in its procedural and substantive aspects. From the procedural
standpoint : Though a mere erroneous decision overruling the previous case-
law cannot be challenged as violating due process, 178 a decision which deprives
a person of his existing remedy for the enforcement of a right without offering
him an opportunity to be heard, must be quashed on this ground, apart from
any other consideration. A judgement which refuses, without a hearing, relief
to prevent the seizure of property or deprives the plaintiff of his property, is in
contravention of due process. 179 A conviction would be similarly vitiated if it
is based on perjured testimony180 or under the domination of a mob. 181

From the substantive standpoint : It has been held that where a common-
law rule is inconsistent with a fundamental right, the enforcement of such rule
by the Court would itself be a State action inconsistent with a fundamental
right.182

On this Principle, the Supreme Court has annulled -

A conviction which sought to enforce the common-law crime ofbreach

of the peace, where it was found that the enforcement of the common law in
the circumstances of the case would offend against the freedom 6freligion. 183

176. Irvin v. Dowd (1961) 366 U.S. 717 (7280; NA.A. C.P v. State ofAlabama, (1958)
357 U.S. 449, Griffin v. Illinois, (1955) 351 U.S. 12.
177. Fay v. Noia, (1963) 372 U.S. 391.
178. Brinkerhoff-Fairs Trust V. Hill, (1930) 281 U.S. 673.
179. American Fed, ofLabourv. Swing, (1941) 321.
180. Mooney v. Holohan, (1935) 294 U.S. 103; Napue v. Jllunois, (1935) 360 U.S. 264.
181. Moore v. Dempsey, (1923) 211 U.S. 86.
182. Cantwell'v. Connecticnt(l940) 310 U.S. 296.
183. Ibid.
 96

A conviction for contempt of court where it was inconsistent with the

freedom of expression .184

A judicial restriant of peaceful picketing, in violation of the guarantee

of freedom of discussion., 185

The guarantee of equal protection has, similarly, been applied against a

judicial decision.

Violation of equal protection - This does not mean that the guarantee
of equal protection assures 'unifonnity of decisions or immunity fromjudical
error' .186 But the guarantee would be applied in annulling a judicial decision.-

Where a court enforces a discriminatory covenant between private

individuals. 187

Whether a restrictive covenant in a private contract is based on a

discrimination against a party solely on the ground of his race or colour, the
enforcement of such covenant by the Court ~ould itself constitute a violation
of the guarantee of Equal Protection. 188 The court refused to entertain the
argument that in the case of a judicial enforcement of a private agreement "
the participation of the State is so attenuated in character as not to amount to
State action" .189 Whether the enforcement is made specifically190 or by an action
for damages for breach of the covenant or otherwise, is immaterial for this
purpose. Even though the private contract itself does not constitute a State
action and does not become invalid owing to contravention of a fundamental
right, the enforcement of such contract by Court becomes unconstitutional. 191

184. Bridges v. California (1941) 314 U.S. 252.

185. Amalgamated Food Employees v. Logan, (1968) 391 U.S. 308.
186. Beckv. Washington, (1962) 8 L.Ed. (2d) 102 (110)
187. Shelleyv. Kraemer, (1948) 334 U.S. 1.
188. Ibid.
189. Ibid.
190. Ibid.
191. Burrows v. Jackson, (1953) 346 U.S. 249.
 97

The acts of Courts and judicial officers in their judicial capacity are
equally acts of the State, to which the guarantee of equal protection extends. 192
Hence, the courts cannot uphold discrimination in enforcing the common law
policy of the State/ 93 or even in enforcing a private agreement. 194 Though the
'equal protection clause' erects no shield against the State so long. as a private
195
agreement is enforced by voluntaty adherence to the terms by the parties,
the constitutional inhibition would arise as soon as the terms by the parties, 196
the constitutional inhibition would arise as soon as the te1ms of the agreement
197
are sough to be enforced by the Courts, for, then, through the agency of the
courts the State would be effectuating the disc1imination.

It was held that the convenant excluded a class of persons simply on

the ground of their race, and that being a violation of the equal protection
clause, the covenant was unenforceable in the Courts, and that a judicial
decision which enforces such a covenant would itself be violative of the
guarantee of equal protection. It carrot be suggested that - "Comt action is
immunised from the operation of those provisions (of the constitution) simply
because the act is that of the judicial branch of the State Government. " 198

In such a case it cannot be contended that in refusing to enforce the

covenant, the court was denying equal protection to the party who had lawfully
secured rights by contract. The Constitution confers upon no individual the
1ight to demand action by the State which results in the denial of equal
protection of the laws to other individuals. 199
200
Where the procedure adopted by the Court is designedly

192. Brickerho.ff-Fairs Trust Co. v. Hill (1930) 281 U.S. 673.

193. American Federation ofLabour v. Swing (1941)312 U.S., 321.
194. Shelley v. Kraemer, (1948) 334 U.S. 1.
195. Ibid.
196. Ibid.
197. Ibid.
198. Ibid.
199. Ibid.
200. Norris v. Alabam, (1935) 294 U.S. 587; Akins v. Texas, (1945) 325 U.S 398; Ave1y v.
Georgia, (1952) 354 U.S. 637; Whitus v. Georgia, (1967) 385 U.S. 545.
 98

discriminatory, e.g., Where Negroes are excluded 201 from the Jury empannelled
to try a Negro, 202 on racial ground, 203 or, otherwise , the Jury is so 'manipulated'
that the accused would have little chance of a decision on the evidence. 204
205
The 'systematic' exclusion of any class of persons from the Jury
service on the ground solely of race or colour denies equal protection not only
to the class which is excluded but also to the accused, who has a right to be
tried by a Jury from which members ofhis class are not systematically excluded.
Apart from such systematic exclusion of a class, if the manner of selection of
the Jury operates as a discrimination against the accused on the ground of his
race, descent or colour, the conviction cannot stand. 206

"No device whether conventional or newly devised, can be set up by

which the judicial process is reduced to a sham and courts are organised to
convict". 207 In short a conviction will be quashed if the accused succeed in
establishing that " the method of their trial denied them equal protection of
the law". 208 It should be noted, however, that the guarantee of equal protection,
when applied to the Courts , does not require a uniformity of decisions from a
judicial tribunal.

B. West Germany

The status of Government corporations or corporations exercising public

functions require separate treatment. It may be stated at once that if these be
regarded as agents of the State, they cannot be allowed to claim fundamental
rights, by analogy. This is made clear by a decision of the West German

201. Ibid.
202. Strauder v. W. Virginia, (1880) 100 U.S. 303; Ex Parte Virginia, (1880) 100 U.S 339;
Smith v. Texas, (1940) 311 U.S. 128.
203. Norris v. Alabam,(1935) 294 U.S. 587.
204. Fay v. NY., (1947) 332 U.S. 261.
205. Ibid
206. Hernandez v. Texas (1954) 347 U.S. 475; Cassel v. Texas, (1950) 339 U.S. 282.
207. Fay v. NY., (1947) 332 U.S. 261
208. Ibid
 99

Constitutional Court. Art. 19(3) of the West German Constitution expressly

confers the basic rights upon 'corporations' "to the extent that the nature of
such rights permits". But the Constitutional Court has held209 that this provision
would not extend to corporations which perform public functions and exercise
State powers". The reason given210 is ilhuninating :

"The basic rights, according to their nature, was intended to

protect the sphere of freedom of the individual against
encroachments by State authority. Consequently, the state
could not be at one and the same time the party against which
the basic rights were invoked and the party entitled to exercise
them."

209. (1967) Yearbook on Human Rights, at 109.

210. Ibid.