McWhinney, Edward

English

Yale Law School Legal Scholarship Repository

REVIEWS
COMMENTARY ON THE CONSTITUTION OF INDIA (2d ed.). By Durga Das
Basu. Calcutta: S. C. Sarkar & Sons, Ltd., 1951. Pp. lxxii, 1063. 30
rupees.
THE DOMINION OF CEYLON. THE DEVELOPMENT OF ITS LAWS AND CON-
STITUTION (Vol. 7 of the series, THE BRITISH COMMONWEALTH). By Sir
Ivor Jennings and H. W. Tambiah. London: Stevens & Sons, Ltd., 1952.
Pp. xvi, 319. $9.35.
THE actual drafting of the Constitution of the Republic of India occupied
three years. A Constituent Assembly to draw up a constitution was first
convened in December, 1946, and its members (numbering three hundred in
all after the withdrawal of Pakistan's representatives) did not finally reach
agreement until November, 1949, the new Constitution coming into force on
January 26, 1950. The constitution that they agreed upon, perhaps in con-
sequence of these exhaustive deliberations, is elaborate and prolix. It is easily
the lengthiest constitutional instrument ever drafted-395 articles, plus 9
schedules, the whole instrument, in the official version published by the
Government of India Press, running to 254 pages. It must also be the
most eclectic constitutional document that has been adopted: its articles echo
the phrases of the constitutions of many countries, for the Indian Constitu-
tion-makers have borrowed copiously, and perhaps not always discriminat-
ingly, from the constitutions of many countries, particularly the English-
speaking federations-the United States, Canada, and Australia. In this
sense, the new Indian Constitution tends to parallel the Weimar Constitution
and other post-1918 European constitutions in that the drafters have sought,
by the dry light of reason and by assiduous culling of the positive law texts,
to construct themselves a constitution. Part IV of the Indian Constitution
(Articles 36-51), for example, is devoted to a detailing of the "Directive
Principles of State Policy," principles which "shall not be enforceable by any
court, but... are nevertheless fundamental in the government of the country
and it shall be the duty of the State to apply these principles in making laws."
Now the notion of including a statement of such Directive Principles in the
Constitution was apparently derived by the Indian Constitution-makers from
the Constitution of Eire of 1937; Eire in its turn owed the same notion to the
Spanish Republican Constitution of 1931. Lacking the teeth of a bill of rights,
and yet at the same time intended to be more substantial than the gusty
recitals normally included in the preambles to constitutions, it is true to say
that the Directive Principles of State Policy have been, from the outset, an
anomalous portion of the Indian Constitution; it is perhaps not surprising
therefore that they have not been utilized or invoked at all up to the present
day. This particular outcome is of course not a unique situation in the day-
REVIEWTS
by-day working of constitutions-many provisions in the United States Con-
stitution, for example, had become dated soon after the adoption of the Con-
stitution and are now generally forgotten. Yet it may be regretted that the
Indian Constitution-makers, in spite of their undoubted erudition, have not
profited from the worst errors of the "professorial" constitutions of post-191S
Europe. We can observe, indeed, all through the Indian Constitution, the
same key characteristics that are found in those constitutions: a notable
heaviness of construction in conjunction with complicated rules which attempt
to provide for all foreseeable contingencies-in a word, the attempt to ration-
alize power, to replace the extralegal facts of power by rigid and extensive
rules of positive law.
In certain significant respects, however, the new Indian Constitution differs
from many of the post-1918 European constitutions. Where the latter tried
to disarm the executive branch of government at a time when economic and
political conditions all pointed to the need for a strong centralized adminis-
tration, the Indian Constitution clearly looks to the establishment of a strong
executive at the center. In this regard, the Indian Constitution-makers de-
liberately rejected the American presidential-type executive, with the sub-
stantial separation of powers that it necessarily implies, in favor of the Eng-
lish parliamentary-type executive. They also took the further step of arm-
ing the Executive with drastic powers, under which, when the Executive is
"satisfied that a grave emergency exists," it can suspend or modify the normal
constitutional provisions, including the very elaborate Bill of Rights section
of the Constitution-a provision that recalls the drastic emergency provisions
of the old Weimar Constitution. Indeed, when it is remembered that the
normal restraint upon a parliamentary-type of executive of an effective two-
party system is not present in India, in view of the absence of any real parlia-
mentary opposition to the present Congress Part, government, it may be
wondered whether the desire for a strong executive has not been carried too
far, and too much of effective power located at the center.
Here, however, another important characteristic distinguishing the Indian
Constitution from the post-1918 European constitutions comes into play,
namely the presence of a Supreme Court exercising judicial review on the
model of the Supreme Court of the United States. The Indian Supreme
Court will be peculiarly able, if it so chooses, to prune away much of the
verbal foliage in the Constitution and look to the essential purposes that the
Constitution was intended by its drafters to embody. The Court starts on
its work with all the advantages that Chief justice Marshall possessed when
he wrote his seminal opinions on the United States Constitution; it will have
a clean slate and will be able to chart virtually its own course. So far, it must
be noted, the Indian Supreme Court has moved with extreme caution. With
notable exceptions like Mr. justice Fazl All, its members have eschewed al-
together the frank, policy-making type of approach favored by the United
States Supreme Court in the present day, and have confined themselves to
a baldly positivist approach. This is no doubt due mainly to the continued
1953] 1023
THE YALE LAW JOURNAL
dominance in Indian jurisprudence of English judicial traditions and patterns
of thought; the Privy Council's approach to constitutional interpretation in
the era of the old British Empire, and the Commonwealth that succeeded it,
was to treat dominion constitutions as mere statutes--distinct from consti-
tutions-and to subject them to the "ordinary" (restrictive) rules of statutory
construction, with a reading-down of the provisions of those constitutions as
the inevitable result. The high-water mark of legal positivism on the part
of the Indian Supreme Court was attained in one of that court's first opinions,
Gopalan v. State of Madras,' when, over a very strong dissent by Mr. Justice
Fazl Ali, the Court (through Chief Justice Kania) rejected any notion of a
"purposive" interpretation of the Constitution and insisted instead on strict
and literal interpretation as the guiding principle of construction. The con-
sequence was a very restrictive ruling, in the Gopalan case, upon the protec-
tions conferred under the very elaborate Bill of Rights contained in the new
Constitution. There has since been no noticeable departure from this judicial
attitude. Indeed, while Indian legal education continues to be closely tied to
positivist methods and certainly while the present group of English-trained
judicial decision-makers remains on the bench, the mechanico-positivist ap-
proach probably will prevail over the more consciously purposive, policy-
oriented methods. One point must, however, be mentioned here. The Indian
Constitution makes mandatory the retirement of Supreme Court judges at
the age of sixty-five. This provision seems to have been included in the Indian
Constitution on the assumption that elderly judges are conservative judges,
a proposition which, in the light of American experience, must be taken with
some reserve. Sutherland, Van Devanter, McReynolds, and Butler were,
certainly, while members of the United States Supreme Court, elderly men,
but so also were Holmes, Brandeis, Hughes, and Stone. One unfortunate
result of the Indian mandatory retirement-at-65 rule is likely to be that men
will be removed untimely from the bench just as they are beginning to find
their feet as constitutional judges and approach their period of greatest in-
tellectual usefulness. For example, Mr. Justice Fazl Ali, recently removed
from the Indian Supreme Court bench on attaining the age of sixty-five, was
forthwith appointed by the Indian Government to the responsible and pre-
sumably physically arduous post of governor of a state within the Indian
federal system.
The approach to constitutional law study in India seems likely, in the fore-
seeable future-in view of the consciously eclectic approach of the Indian
Constitution-makers-to be primarily in terms of comparative constitutional
law. Mr. Basu's work is understandably directed to this end. It is basically
a heavily annotated version of the new Indian Constitution, the annotations
being clippings from analogous provisions in the constitutional instruments of
other countries with occasional reference also to positive law texts and cita-
tions of case law. Yet I cannot help feeling that the effectiveness of this type
of approach is subject to severe limitations, comprising as it does the study
1. 13 Sup. Ct. J. 174 (1950).
1024 CVol. 62
REVIEWS
of the positive law of the constitutions of particular countries in isolation from
their "living law"--the de facto behavior, mores, and norms of the people
of those countries. This is not to say of course that the study of legal texts
should be written off altogether, for the legal texts themselves play a part in
creating new norms of community behavior; it is simply that a meaningful
approach to comparative constitutional law requires that the positive law of
the various countries be constantly tested against a background of the law
in action in those countries-that is, against actual patterns of community
attitudes and working governmental practices. In the absence of such a com-
prehensive approach, a work like Mr. Basu's, though providing for reference
purposes a most convenient collection of assorted positive la, materials, is
somewhat more restricted than it need be in its area of usefulness for the
study of constitutional and comparative law.
In marked contrast to the Constitution of the Republic of India, the new
Constitution of Ceylon, which also came into force after World War II, is
short and very simple. Though, as a matter of history, it derives its original
authority from certain United Kingdom enactments and Orders-in-Council,
it is essentially the political creation of local (Ceylonese) leaders. It seems
to have been the desire of these leaders to have a system of government analo-
gous to that of the United Kingdom: not merely does the Constitution pro-
vide for a cabinet system of government according to the English model (that
is, parliamentary-type executive), but in addition the legislature possesses
substantially unlimited law-making powers--after the fashion of the English
Parliament. Thus the Ceylon Constitution itself may be amended by a vote
of a tivo-thirds majority of the lower house of the Ceylon Parliament. Other
than this requirement of a special legislative majority for constitutional amend-
ments, the only restriction on legislative power relates to religious freedom,
the Constitution specifically forbidding any law prohibiting or restricting the
free exercise of any religion, or discriminating against or conferring any ad-
vantage on any one community or religion.
In view of the virtual absence of any formal restrictions on legislative
power, and specifically the absence of a bill of rights or similar comprehen-
sive collection of fundamental guarantees and affirmations, it is perhaps not
surprising that no provision is made in the Constitution of Ceylon for the
exercise of the power of judicial review by the courts, and indeed that such
a role for the Supreme Court seems never to have been envisaged by the
Constitution-makers. Thus, according to present conceptions of the nature
of the Constitution of Ceylon, the protection of minorities is left, as in the
United Kingdom, to the self-restraint of legislative majorities. It is to be
noted in this connection that the franchise rules are deliberately adjusted to
produce something of a bias in favor of minorities-a system of weighting
gives the sparsely populated rural districts (where the minorities are strong-
est) a higher proportionate representation in the legislature than urban areas.
19531 1025
THE YALE LAW JOURNAL
The picture that Sir Ivor Jennings and Mr. Tambiah present is of a con-
stitution which, if it is patterned very closely on the United Kingdom model
rather than drawing more substantially upon indigenous Ceylonese experi-
ence, is at least the preferred choice of local leaders and is also the culmination
of an unbroken chain of development, under British rule, towards represent-
ative government and independence. Was it altogether wise, in view of the
relative lack of experience in self-government at the time Ceylon attained its
independence after World War II, to adopt a constitution based substantially
on the United Kingdom principle of the sovereignty of parliament, without
any certainty that there would develop in Ceylon that major working check
upon legislative majorities under the United Kingdom Constitution-a strong
and stable two-party system? The authors of the present study do not offer
us any picture of the current state of the party system in Ceylon tinder the
new constitution. It seems clear, however, that in avoiding the temptations
of drafting a cumbersome all-foreseeing constitutional instrument, after the
post-1918 European constitutional pattern, the Ceylonese Constitution-makers
have placed a large degree, perhaps too large a degree, of trust in men rather
than in legal prescriptions: custom and convention to this extent, it is clear,
will be the life-blood of the new constitution. The Indian Constitution-makers,
by contrast, have distrusted men perhaps too much and have attempted, by
elaborate written formularies, to make theirs a government of laws alone and
not of men. Which of these approaches is most likely to produce a viable
and enduring constitution? The Western World has a stake in the success
of both these constitutions and will watch with interest and sympathy the
working operation of each of them over the ensuing years.
EDWARD MCW1I-NNEYt
ACTIONS FOR DECLARATORY JUDGMENTS (2d ed.). By Walter H. Anderson.
Atlanta: The Harrison Co., 1951. Pp. 2171 (3 vols.). $60.00.
"TRIAL by combat" need not be synonymous with trial by technicality. If
society is to retain (or regain) its faith in the judicial process, judicial pro-
cedures must be clear, practical, expeditious, and inexpensive. The declaratory
action has come to be identified with these attributes. It might be hoped
that these adjectives could also be used to characterize this treatise on the
declaratory remedy. Such, unfortunately, is not the case.
The style is complex and confused, and there is a profusion of extraneous
detail. Instead of incisive critical analysis, there is an incessant repetition
of the many facts of many cases. The following abstract affords a striking
illustration of these observations:
"Where an action was brought for a wrongful death against a
landlord, and the basis of the action was that the deceased was the
tVisiting Lecturer in Law, Yale Law School.
[Vol. 621026


Basu: Commentary on the Constitution of India /Jenning and Tambish: The Dominion of Ceylon. The Development of Its Laws and Constitution

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Basu: Commentary on the Constitution of India /Jenning and Tambish: The Dominion of Ceylon. The Development of Its Laws and Constitution

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