Sir Ivor Jennings on the Indian Constitution

We were privileged to have the learned analysis of Mr. M. Anantanarayanan in the 1956 November Issue of the ‘Lawyer’ of the criticisms of Sir Ivor Jennings on the Indian Constitution under the title ‘The Indian Constitution in retrospect’. He rightly added ‘1 shall be satisfied if this brief study stimulates further thought in the same direction or serves as a point of departure for excursions of a theoretical nature into the vital question whether our Constitution does require large scale redesigning......to serve the altered objectives of a rapidly changing nation.’  That Mr. Alladi Krishnaswami lyar just differed from Mr. Jennings’ views, though not forthrightly, shows only the former’s courtesy to a visiting constitutional Expert to India. But that Mr. Jennings disclosed more his bias as an English diehard than as a mere professor of constitutional law, was clearly expressed by informed publicists and the Indian Press. Had Mr. Alladi lived longer we may have had his mature opinion. On the very next occasion in 1952 when we had the privilege of delivering the Sundaram Ayyar—Krishnaswamy Ayyer Endowment lectures on ‘Interestatal Relations under the constitution’ we had an occasion to clearly combat the views of Mr. Jennings under the presidency of Mr. P. V. Rajamannar, the Chief Justice of Madras, Vide The Madras University Journal, Vol. 23, Nos. 1 and 2, 1952.  Residuary Power We shall briefly touch certain aspects of Sir Ivor Jennings’ views and try to answer them. Sir Ivor disliked the residuary powers being given to the centre and suggested the U. S. A. model to India. By the 10th Amendment the U. S. A. Constitution specifically vested the residue, i. e., powers not delegated to the Union or prohibited to the states — in the states or to the people. But it is forgotten that while the powers of the Congress are enumerated the powers of the states in U. S. A. are not. Unlike India or Australia there is no concurrent list in the American constitution. Though the Federal powers appear severely restricted to what is enumerated, in actual Practice during national emergencies or when national interests required a broader concept of Federal Power, the difficulty was felt and the Supreme Court of America always came to the rescue in so interpreting the constitution as to meet all such contingencies’ Vide Macculloch v. Maryland (1819) 4 Wheaton 316: 4 Law Ed. 579, Pensacola Tel. Co. v. W. U. Tel. Co., (1877) 96 U. S. 1, Steward Machine Co. v. Davis, (1936) 301 U S. 548:81 Law Ed. 1279 ; United States v. S. E. Underwriters Association (1944) 322 U. S. 533. The refuge generally was:  in the doctrine of implied powers, the doctrine of immunity ot instrumentalities, and the doctrine of implied prohibition. The theory of implied powers made the Supreme Court remove practically all restrictions, upon national power by the march of events from 1935 onwards and in the words of Mr. Dodd, an American writer, ‘The scope of national authority has become a question of Government policy and has substantially ceased to be one of constitutional law’. This is a sufficient answer to Mr. Jennings’ ideal of state supremacy in a Federal Constitution. The theory of implied powers is thoroughly unnecessary for the federal systems of Canada and India where, besides-the residuary powers being vested in the centre, there are double enumeration of powers such as Federal and State items. The doctrine of ‘Immunity of Instrumentalities (Macculloch v. Maryland, (1819) 4 Wheat 316 ; and John Deera Plow Co. v. Wharton, 1915 A. C. 330) suggested that ‘when two separate Governments are established in a Federal Constitution each with a limited jurisdiction, the power of each government shall be constituted as being under an implied limitation that it shall be so exercised as not to impair the functions allotted to the other Government.’ The Indian Constitution does not permit this doctrine of Immunity of Instrumentalities. The exemption in the case of mutual taxation is provided under Arts. 285 and 289. The powers of the centre and the states are clearly enumerated in India so as not to invoke the above doctrine. The entries in the three legislative lists in India define the fields of legislative action. They do not prescribe the conditions subject to which the power is to be exercised. To take an instance, Vide Surya Pal Singh v. U. P. Govt. A. I. R. 1951 All 674 the words ‘subject to the provisions of. entry 42 of List III’ used in entry 36 in List II do not by themselves mean that the state legislature cannot legislate with respect to acquisition of property unless there is a public purpose and only on payment of compensation. Vide the safeguard in Art. 31 (2) which postulates conditions of legislative effectiveness. These conditions should not be considered as fetters on legislative competence. The result is the state legislature cannot legislate under entry 36 List II unless the acquisition is for purposes which are purposes of the Union. The other limitation is that the Union Parliament may legislate with regard to compensation and the form and manner in which such compensation is to be given notwithstanding the fact that laws with regard to acquisition or requisitioning for purposes other than for purposes of the Union may be enacted by the State legislature. Thus the legislative competence of the State Legislature under List II entry 36 is not controlled by Entry 42 in List III.  The other Doctrine of Implied Prohibition was utilized by America for the proper execution of some power expressly granted to the Federal Government, vide U. S. v. De Witt, (1860) 9 Wall 41 where the Congress’ power to regulate trade among states was construed as implying prohibition regarding internal trade by state except indeed as a necessary and proper means of carrying into execution some other powers expressly granted or vested. But Canada or India do not need this doctrine where there is double or trible enumeration of powers.  Sir Ivor would urge that it was no good to carry the formula contained in the Government of India Act of 1935 where the Federal centre was made to be strong as the British crown was a stranger to India and that once India became independent the Federal structure should be real. We may ask, if the Supreme Court of the U. S. A. has to buttress the Congress with power by its interpretative jurisdiction and the U. S. A. of 1958 desires to have a strong federal centre whatever may be the letter of the Constitution, then why not we applaud the Indian Constitution-makers for giving in a straightforward manner sufficient powers to the centre. And what is our experience from 1950 to 1956, with all the warring political forces born out of linguistic or Parochial fanaticism. India is yet an under-developed country. We needs must have a strong Centre to pull up all his siparous forces and harmonise our energies into heralding early a truly welfare state of the federal type. We have properly devised a federal structure peculiar to India, which is essentially federal in normal times and unitary in times of emergencies.  Minority Rights With all respect to Sir Ivor Jennings, his views on minority rights, his solicitude for the States vis a vis the Union, his references to the alleged domination of the Hindus of the North, all sadly betoken a tendency to throw an apple of discord. The ‘Divide and Rule’ theory of British origin does appear to be at the root of it. The division of Pakistan and the travail following it is recent and cannot be forgotten.  Sir Ivor appeared to forget that our concept of a secular state, neutrality in matters of religion, right to equality of all citizens before law irrespective of caste and creed, abolition of communal electorate, safeguarding the rights of depressed classes and scheduled tribes and special representation to Anglo Indians are variously provided for in the Indian Constitution. These indeed are a sufficient guarantee to minority rights.  Rigidity and Flexibility Sir Ivor further ridiculed that our Constitution was needlessly rigid. But our ancient constitutional and historical development with the urgent need to balance the claims of varied peoples of a vast continent-like country is a sufficient basis for us to conceive and mould the constitution to be both flexible and rigid as occasion demanded. It is a marvel India has a written Constitution. Sir Ivor may not forget that England which is only as large as old Mysore State, had no written Constitution; England subtly thrives on conventions and Institutions let a written constitution invite trouble. Without a strong centre India will fall to pieces and disintegration may set in. The Constitution of a country has to be based not on abstract principle without relevance to actual conditions. What is good for one country may be bad for another.  Constitutional Amendment Sir Ivor Jennings expressed that the provision relating to constitutional amendment was complicated and that the document cannot be easily amended. But this is a fallacy. The constitution of India is more easily amendable than in any other federal country. It is amendable by the unilateral action of Union Parliament in those particulars which do not involve rights and powers, of the States (Art. 368) and by the bilateral action of the Union and state legislature where suck rights and powers are involved. As Mr. Jayakar, the great Indian jurist, said “there should be no tinkering with such a sacred document as a country’s constitution,” the change ever in the political wind or the whims and fancies of politicians m. power should not supply the motivating forces to amend a constitution. The Parliament in India is supreme and has demonstrably great powers to effect any change in the Constitution. We are rather prone to view that the power should be more rigidly circumscribed. For within the last six years we have already witnessed six amendments ‘and the fourth amendment which brought about drastic changes in Art. 31, caused a furore in the country and rightly enough at the last conference of the Madras Bar Federation in its momentous session in Madras in 1954 December. M. K. V. Venkatasubramaniya Ayyar expanding the principles of constitutional amendment posed four questions :  Was the power of making amendment under the constitution an unlimited power ? What was the procedure applicable to the amendments of the Constitution which sought to abridge fundamental rights ? Was it proper to have drastic changes effected in the constitution without ascertaining the will of the people ? Was not the most urgently needed amendment to the constitution an amendment to the amending process itself ? See The Bar Federation Number ‘The 9th Madras State Lawyers Conference’ Pages 41-52. It was rightly felt that the provision in Art. 368 enables Parliament to legislate over large areas of the Constitution (such as Parts III and IV of the Constitution) without even the need for obtaining ratification from states. To safeguard the citizen’s rights a referendum process is necessary and this can be effected only by amending Art. 368. Otherwise hustled amendments based on ideologies which are yet to be fully tested in very many details may do a lot of harm to the body politic. Such was the view also of Mr. M. Patanjali Sastri, Ex-Chief Justice of the Supreme Court of India who said ‘I deprecate frequent amendments to the Constitution and suggest that amendments of great importance to the community should not be passed without placing the matter before the people and obtaining their verdict. This is so particularly in a young federal democracy where politicians, the people’s representatives have yet to be seasoned into a fervour of sustaining and sobre views.’ In the light of the above, Sir Ivor Jennings’ remarks about our rigidity in effecting amendments is beside the point. On the other hand a good case has been made out for putting in more safeguards in the present existing amending process itself. Mr. Alan Gled Hill, another great British jurist, commended the Indian Constitution thus : ‘The Indian Constitution assigns different degrees of rigidity to its different parts, but any part of it can be more easily amended than the American Constitution......The Indian founding fathers were less determined than were their American predecessors to impose rigidity on their Constitution, Vide the Republic of India Page 74-75.’ The Directives Mr. Anautanarayanan appeared to agree with Sir Ivor that “the Directives (Arts. 36 to 51) are unfortunate, that they are apt to land us in a dilemma, and that they may be soon out of date. They are ineffective as they ate non-justiciable. If intended to be advisory they are superfluous in a constitution, the content of which must bs rigidly juristic.” But there is a brighter side to the picture. We recall the words of Dr. Ambedkar : See Constituent Assembly Debates. Also Om Prakash v. State of Punjab, AIR 1951 Punjab 93. ‘What is called Directive principles is merely another name for instrument of instructions. The only difference is that they are instructions to the legislature and the executive’. They are constitutional obligations on the legislature and the executive and they cannot run counter to them. If they do so they stand the risk of condemnation at the bar of public opinion for having disobeyed the constitutional mandates of the people of India. What Part III (Fundamental Rights) outlines for the Individual, Part IV outlines for the entire fabric of society in which the individual is but a component part. Ordinarily there can be no conflict between the two but if it arises, it is capable of resolving the conflict, if only it is remembered that the Directives are there to tame the wild extravagance of assertion of the individual regarding his fundamental rights. The latter are the present irre ducible minimum of rights of the individual in a free democracy while the Directive principles are the character for the future welfare of the state. Part III can in no sense be considered as subordinate to Part IV. The gist of superiority cannot be split out of the test of ‘justiciability’. Even in the old days of Dicey (Whom Sir Ivor does not want India to follow) conventions had their sanction by usage, they were not laws as such. Later this criterion of justiciability as the test of a ‘Law’ vanished. Conventions were really customary laws of the land. The further growth of administrative law in administering justice encroached on the monopoly of administering justice and statute laws. So, to correctly put it if the Directive principles are made non-justiciable, it is simply because courts are not suited to administer them. They are nevertheless legal principles, ‘law in fact’ but only they have to be adhered to by the State in its functions as an administrative and legislative agency. It is the result of separation of functions that those Directions are aptly termed ‘as Directive principles ot State Policy’. Article 37 enjoins them as fundamental in the governances ot the country Mr. Alan Gled Hill in fact applauds the Indian Directives thus : Vide the ‘Republic of India, pp. 161-162.  “If as is to be hoped the directive principles are taught to every Indian school boy they may have great influence not only in India but in the World. Indian constitution becomes vested with the cope of sanctity essential to its curability, it will be difficult for any public figure to oppose any important legislative measure without making an appeal either to the Fundamental rights or the directive principles ......Many of the Fundamental Rights are subject to reasonable restrictions in the interests of the general public. In interpreting those rights the courts will be obliged to lay down canons for determining what is reasonable and it is impossible that a restriction should be reasonable if it offends against the directive principles.” We will define the objectives of the Directives thus :  The law making organ of the state should apply the directive principles in making the law. Otherwise it will be unconstitutional offending Arts. 36-51. While the court should positively enforce fundamental rights it shall not do so in respect of Directive Principles. But court should resolve all conflicts between the Fundamental Rights and Directive Principles with an eye on the fundamental spirit of the constitution and with a view to harmonise all differences if that is possible and feasible. Courts should also see that the legislature does its duty as also the executive vis a vis laws that effect directive principles. Any transgression of the latter being undesirable as affecting the constitutionality of the law. In a growing welfare state the tendency will be to make more things non-justiciable. Hence the Directives will be the only compelling force on executive’s arbitrariness. If the directive principles are erased the fortress of Fundamental Rights might not withstand the periodical legislative onslaught of mad politicians who can be kept in check only by these Directives as a permanent mandate from the electorate, who can unseat that party at the next elections. The criticism that the directive will be outmoded after a lapse of years with the change in values vis a vis society in a welfare state, can be met by the answer that the Nation could amend the directives then.  Fundamental Eight and Rule of Law Sir Ivor Jennings’ dictum that Dicey is outmoded, that the Fundamental Rights in the Indian Constitution is bat the emphasis on Dicey’s Rule of Law, that most of the rights are but restrictions, that there is no consistent philosophy running through Part III, etc. do call for attention. For one thing ‘The Rule of Law’ theory is not yet outmoded. Even after the advent of administrative tribunals in modern welfare states, the basic essentials of the Rules of Law are not forgotten such as open and fair hearing, reasons to be given for all decisions, a right of appeal to higher administrative tribunals, a Review by a court of law on limited grounds, right of representation by counsel, etc. The three canons:  that no one should be a judge of his own case, no party to go unheard and the decision to be given in good faith are yet guiding factors. Even in these administrative tribunals there is an attempt to insist on separation of Judicial and administrative functions. These rules of natural justice prevent Tribunals from becoming instruments of oppression and arbitrariness leading to a denial of justice and equal protection of laws. Sir Ivor appears to forget that the bed-rock of British justice is yet the Rule of Law (which originated with Dicey) with modern adaptation. May be the citizen’s rights in England are inherent in the ordinary law of the land. Nothing is unlawful unless prohibited by law. The tradition, conventions and the institutions of England such as the Parliament, and courts of justice have greatly preserved the inherent rights of the citizen. But in less advanced India we needs must have a written Magna Carta of fundamental rights in the Constitution. We cannot understand how fundamental rights — rights to equality (Articles 14 to 18) rights to freedom (Arts. 19 to 22), right against exploitation (Arts. 23 to 24), rights to freedom of religion (Arts. 25 to 28), right to cultural and educational rights (Arts. 29 to 30), right to property (Art. 31) and right to constitutional remedies (Art. 32) can in the conception of Sir Ivor show any inconsistency or absurdity. In fact in England we have the analogous law :  where the right of personal freedom is secured by Habeas Corpus Act. The rights to property protected by legal remedies. The right of freedom of speech or discussion so as not to infringe the law of libel, slander, blasphemy, defamation, etc., The right of public meeting short of nuisance or trespass upon other’s property, The right of Association etc. the Company’s Act, Trade Union Acts. etc. in England. Rights to trial in accordance with principles of natural justice. The right to strike or withhold his labour so long as there is no breach of contract, tort or crime.  If the above are good in England, they cannot be bad in India where for over a century the British administration of justice had taken deep root. In fact we have codified these rights in Arts. 14 to 32 of the Indian Constitution, with necessary legal and reasonable restrictions in the interests of the general public. Some of these rights and restrictions are peculiar to India with its peculiar historical background.  Just as in England in India the necessary adjustments have been made vis a vis Dicey’s Rule of Law. The three limiting principles vis a vis the Executive, the Legislature and the Judiciary can be formulated as :  That judicial decision should be based upon fixed principles already established. Legilsation must favour the limitation of the executive and judicial power to deal arbitrarily with individual rights. The Government should jealously respect its legal limitations. We would further urge ‘Law’ and arbitrary power are in eternal enmity. The history of liberty is a history of limitations of Government power, not the increase of it. Articles 53 and 154 or the Indian Constitution vest the executive power of the Union and of the States in the President and in the Governor respectively to act in accordance with the Constitution directly or through subordinate officials. In the original draft constitution the words used were ‘in accordance with the Constitution and the Law.’ The rule of law would in that event have been paramount and the executive could not then invoke any inherent powers apart from the law. We would urge this much amendment in Arts. 53 and 154 by the addition of words ‘and the law.’ We will quote Justice Jackson of America. Youngstown Sheet and Tube Co. v. Sawyer, (1952) 343 U. S. 579 :  ‘‘With all its defects, delays and inconveniences, men have discovered no technique for long preserving the Government except that the executive be under the law and the law is made by parliamentary deliberation.” In the light of these observations, is Dicey’s Rules of Law an outmoded conception ? We fear not.  Prolixity But we can agree with Sir Ivor Jennings to some extent that the provisions of the Constitution are prolix and lack the brevity of that of U. S. A. The founding fathers were too enthusiastic to provide for all contingencies. They seemed to have preferred to err on the side of verbosity than suffer any omission. Anyway provisions such as Arts. 220, 224, 223 to 237 could as well have been left to ordinary legislation.  But whatever defects there are really in our Constitution Can easily be rectified by an amendment. Experience is the best rectifier. But the wholesale condemnation of a constitution which had been ushered in by the advice of legal giants as Sir Alladi Krishaaswamy Iyer, Dr. Ambedkar, and others is rather too much.

Author Name: V G Ramachandran