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Constitutional Developments in
India 1600-1955
M. RAMASWAMYq
The constitution of a country is a product of its past history

and its future aspirations. To comprehend its true nature and
function one needs to have a broad understanding of the historical
forces that have gone into its molding and of the goals toward
which its people are working. I accepted with pleasure an invi-
tation to write a historical survey of the constitutional develop-
ments in India from the year i6oo up to the present time. It affords
me the opportunity to place before American readers a picture
not only of India's new Constitution set against its historical back-
ground, but also of its actual working since it was inaugurated
on the 26th day of January, 1950.
The present survey of the constitutional developments which
have taken place in India from i6oo to 1955 has been arranged in
three sections. Section A covers the period from i6oo to i95o.
Section B gives a review of the new Constitution of India as it was
on the eve of its inauguration.' In Section C, I have essayed a
sketch of the developments in the constitutional field during the
six years since the Constitution was brought into operation.
Section A: Survey of Indian Constitutional Developments

from 16oo to 1950
Since the new Constitution has its roots in and has been largely
molded by the events which took place during the period of the
British connection, it is necessary for us to have a broad view of
this segment of Indian history, which falls into five periods.
I
The first period begins in i6oo and extends to 1765. Queen
Elizabeth on December 31, i6oo, gave a charter to a group of
* B.A., Mysore; B.L., Madras; Senior Advocate, The Supreme Court of India, New
Delhi; Advocate, The High Court of Mysore, Bangalore.
1. The substance of this section first appeared in the January 1950 issue of the
Canadian Bar Review as Ramaswamy, The Constitution of the Indian Republic, 28 C. r.
B. REv. 1 (1950). It is included here, as part of this more comprehensive survey, with the
editor's kind permission.
A'ay X956] INDIAN CONSTITUTION
English merchants incorporating them into "one body corporate

and politick, in deed and in name, by the name of the Governor
and Company of Merchants of London trading into the East
Indies."2 Early in its life, the Company established a factory (i.e.,
a trading post) at Surat after securing the permission of the then
Moghul Emperor Jehangir for its establishment. Other factories
were opened in various parts of India by the Company in the
seventeenth century, and the successive charters granted to it in
its early career invested it with such elementary powers of gov-
ernment as would enable it to maintain order and discipline in
its factories and to withstand the attacks of foreign powers. After
the death of the Emperor Aurangzeb in 17o7, the gradual dis-
integration of the Moghul Empire set in. And in the disturbed
conditions of the time, both Indian and foreign powers began to
establish territorial supremacy in different parts of India. The
English were also drawn into the vortex of these political quarrels
and rivalries. The defeat of Suraj-ud-Dowla by Robert Clive at
the battle of Plassey in 1757, and the defeat of the combined forces
of Mir Khasim and the Nawab Vazir of Oudh by the English forces
under Major Munro at the battle of Buxar in 1764, led to the mili-
tary conquest of Bengal and Bihar.
II
With the grant of the Dewani by the Moghul Emperor Shah
Alam in I765,' which furnished a de jure basis for the exercise
of British authority in Bengal, Bihar and Orissa, the second period
(1765-1858) of our historical survey begins. The Company, which
for a century and a half after it commenced its career in India
maintained its original character as a commercial institution,
began by about the middle of the eighteenth century to assume
the responsibilities and acquire the attributes of a territorial power.
For many years Parliament took no active interest in the fortunes
of the East India Company. But when the Company began to
acquire large territories, and the problems of government in those
areas became immense, Parliament was forced to intervene in
Indian affairs. The famous Regulating Act of 1773,4 which is
associated with the name of Lord North, made detailed provisions
2. 1 HuwrjN, A HisrOny or BRrmsH IhD 250 (1899).
3. 1 BA=ERjEE, IDIAN CONSTITUTIONAL DocumEsmS 6 (2d ed. 1948).
4. 13 GEo. 3, c. 63.
STANFORD LAW REVIEW [Vol. 8: Page 326
for the administration of the Company's Indian domains. The

next important piece of parliamentary legislation, Pitt's East India
Company Act of I784,' created a board of six commissioners to
exercise "superintendence and controul over all the British terri-
torial possessions in the East Indies, and over the affairs of the
united company of merchants trading thereto."' The system of
double government which was brought into operation by the act
of 1784, though modified in points of detail by the successive
charter acts of i793,' 1813,8 i833' and 1853,1" continued to operate
in the main until the year 1858. After the Mutiny of 1857,
this dual sharing of responsibility of government by the Crown
and the East India Company, with all its difficulties and compli-
cations, was ended by Parliament enacting the Government of
India Act of August i858," under which the Indian territories
hitherto governed by the East India Company became vested in
Her Majesty the Queen. By this time there was no power left in
India which could challenge the paramount authority of the
British Crown.
III
During the third period, which begins in 1858 and closes with
the passing of the Government of India Act, i919,12 the Govern-
ment of India operated as a benevolent despotism solely respon-
sible to the British Parliament. But in conducting the adminis-
tration, the Government made an attempt to understand the views
and feelings of the people by giving them representation in the
legislatures. The great landmark in this third period is the Indian
Councils Act, i86&x The provisions of this act created the frame-
work of internal administration in India which endured until the
inauguration of the Montagu-Chelmsford Reforms in 192o. Be-
ginning with the Indian Councils Act, 1861, a series of enactments
was passed by the British Parliament, the most notable among
5. 24 GEo. 3, sess. 2, c. 25.
6. Id.§3.
7. 33 Gno. 3, c. 52.
8. 53 GEo. 3, c. 155.
9. 3 & 4WmL.4, c.85.
10. 16 & 17 Vxar., c. 95.
11. 21 &22 Viar., c. 106.
12. 9 & 10 GEo. 5, c. 101.
13. 24 &25 Vicr., c. 67.
14. As embodied in the Government of India Act of December 23, 1919. See note
12 supra.
May 1956 ] INDIAN CONSTITUTION
which were the Indian Councils Acts of 1874" and 1892,6 en-
larging the size of the legislatures and widening the range of their
functions. In the year 186i, the Indian High Courts Act' 7 was
passed by Parliament authorizing the Crown to constitute by letters
patent high courts of judicature at Calcutta, Bombay and Madras.
Following the establishment of these courts, the old chartered su-
preme courts and the Sadr Adalat courts were abolished and their
powers vested in the new high courts.
IV
A. The Montagu-Chelmsford Reforms
The Government of India Act, 1919, was based upon the fa-
mous declaration of British policy toward India made by the then
Secretary of State for India, The Right Honorable Edwin Mon-
tagu, inthe House of Commons on August 2o, 1917. He said the
British Government aimed at "the increasing association of Indians
in every branch of the administration, and the gradual develop-
ment of self-governing institutions, with a view to the progressive
realisation of responsible government in India as an integral part
of the British Empire."" These reforms are associated with the
names of Mr. Montagu and Lord Chelmsford, the Viceroy at the
time. The fourth period of survey commences in i92o-when the
system of dyarchy, the features of which are described below,
was brought into operation in the provinces-and closes with the
inauguration of provincial autonomy in 1937 under the terms of
the Government of India Act, i935."
While the Moniford" Reforms introduced no change in the
autocratic set-up of the central government, it was provided that
in the administration of a governor's province, a certain number
of subjects called the "transferred subjects" would be administered
by the governor acting in conjunction with the ministers." These
ministers were to be selected by the governor and to hold office
during his discretion. No minister could hold office for more than
six months unless he was or became an elected member of the
15. 37 & 38 Viar., c. 91.
16. 55 & 56 Viar., c. 14.
17. 24 & 25 Viar., c. 104.
18. 97 H.C. DEB. (5th ser.) 1695 (1917).
19. 26 Gao. 5, c. 2.
20. A popular term formed by taking the first syllable from Montagu and the last
syllable from Chenlmsford.
21. Giuprris, Tam BamsH IMPAcr N INDI 319 (1952).
legislature. An effort was made by the Government of India Act,

1919, to introduce a measure of self-government in the adminis-
tration of the transferred subjects. As the Indian Statutory Com-
mission under the chairmanship of Sir John Simon observed in
its report on the system of government in India:
In theory, they [the ministers] hold office during the governor's
pleasure, but the power of the legislative council to reduce or withhold
their salaries, to censure their administration, and to refuse supply, make
the continuance of the confidence of the council, essential to their reten-
22
tion of office.
It may be pointed out in this context that the act of 1919 provided
that at least seventy percent of the members of a provincial legis-
lative council should be elected members and not more than
twenty percent official members. 8 Under the new act, the gov-
ernor was required, in relation to the transferred subjects, to be
guided by the ministers unless he saw sufficient cause to dissent
from their opinions and act in his discretion2 The important
transferred subjects in all the provinces were education, local gov-
ernment, public health and sanitation, medical administration,
agriculture, fisheries and regulation of alcoholic beverages and
excises thereon. Forestry was a transferred subject in some prov-
inces and not in others. The reserved subjects were administered
by the governor with the help of an executive council whose
members consisted either of officials drawn mostly from the ranks
of the Indian civil service or nonofficials specially appointed. This
scheme of the provincial governments working in two sections,
brought into operation by the Montford Reforms, was known as
dyarchy. Though the act made no provision for joint deliberation
by the two halves of government, the Joint Parliamentary Com-
mittee attached considerable importance to joint meetings of the
two in regard to "a large category of business of the character
which would naturally be the subject of Cabinet consultation."'"
In actual working, however, the practice was not uniform in all
the provinces. Although the dyarchical form of government, even
as conceived by its authors, involved joint deliberation, there was
no question of joint responsibility for the decisions taken by the
22. Report of the Indian Statutory Commision, vol. 1, p. 152 (1930).
23. 9 & 10 GEo. 5, c. 101, § 7(2).
24. Id. § 4(3).
25. Report from the Joint Select Committee of the House of Lords and the House of
Commons Appointed to Consider the Government of India Bill, d. 6 (Nov. 17, 1919).
two wings of government, although joint responsibility is at the

very core of the cabinet form of government. That the Montford
Reforms did not satisfy the country goes without saying. There
was intense political pressure exerted by an awakened people
which ultimately resulted in the passing of the Government of
India Act, 1935, on August 2, 1935.
B. The Government of India Act, 1935
The Government of India Act, 1935, sought to establish, by a

somewhat novel process, a federation consisting of autonomous
British Indian provinces and the Indian States"8 with a central
government at the top. The general process by which federations
in other parts of the world have come into existence is by inde-
pendent political communities organizing themselves into a fed-
eral state. This is accomplished through the voluntary cession of
jurisdiction over certain defined matters of national importance
to the new central authority, while the units retain their separate
identities and also their powers in relation to matters within the
nonceded field. The process of establishing a federation in India
was complicated by two circumstances. The first was that the
British Indian provinces were not autonomous entities but formed
parts of a unitary state subject to both the legislative and adminis-
trative control of the Government of India. Such authority as they
did exercise was in the main devolved upon them under a statu-
tory rule - making power by the Governor-General-in-Council.
This led to the necessity of creating autonomous units and com-
bining them into a federation by one and the same act. The second
complication arose from the fact that the Indian States ruled by
Indian princes, though coming under the suzerainty of the British
Crown, were not directly amenable to the legislative authority of
the British Parliament. The Government of India Act, i935,
which was not, therefore, directly binding on the Indian States,
provided the requisite machinery whereby they could severally
accept that constitution and thus become part of the federation.
26. During the period of British establishment of political control over India, some
of the princely states were allowed to retain their integral character as feudatories in sub-
ordinate alliance with and subject to the general supervisory control of the British Crown
as suzerain but not amenable to legislative control by the British Parliament. The rest of
India became British India, administratively parceled out into full provinces or chief com-
missioner's provinces directly under the jurisdiction of Parliament. For discussion of the
constitutional position of the princely states prior to the Government of India Act, 1935,
see R mswurv, ThE LAW OF THE INDIAN CONSTITMTON C. 3 (1938).
The ruler of a state could signify his acceptance of the feder-

ation, with all its implications, by executing a document called
the Instrument of Accession. After acceptance by His Majesty the
King of the Instrument of Accession, the constitution as a whole,
subject to any conditions and stipulations mentioned in the instru-
ment, became binding upon the acceding state. The idea was that
items i to 47 in the federal legislative list should form the basic
list of subjects with respect to which the Indian States wishing to
join the federation would be required to delegate jurisdiction. The
act provided that before the federation could come into existence
it was necessary that instruments of accession be executed by rulers
of Indian States entitled to not less than one-half of the seats set
apart for them in the Council of States and representing, in the
aggregate, at least one-half of the population of all the states. 7
This condition was not fulfilled and the contemplated federation
did not come into existence. But after the 1935 act the central
government of India, though not constituted on the basis of the
plan provided in the act, functioned practically on a federal basis
so far as the distribution of powers between the central govern-
ment and the British Indian provinces was concerned.
One other important feature to be noticed about the polity
established by the Government of India Act, 1935, was that, at
the Centre, the functions of the Governor General with respect
to the departments of defense, ecclesiastical affairs, external affairs
(except the relations between the federation and any part of His
Majesty's dominions) and tribal affairs were to be exercised by
him in his discretion.28 The Governor General was to have the
assistance of counselors, not exceeding three in number, in the
task of the administration of these reserved departments." The
act provided for a "council of ministers, not exceeding ten in num-
ber, to aid and advise the Governor-General in the exercise of his
functions, except in so far as he is by or under this Act required
to exercise his functions or any of them in his discretion."' This
meant that federal subjects other than the reserved ones were,
subject to the overriding power of the Governor General, com-
mitted to the care of the Council of Ministers, whose members were
to be selected by the Governor General in consultation with the
27. 26 GEo.5, c.2, § 5(2)(a), (b).
28. id. 11(1).
29. Id.§ 11(2).
30. Id. §9(1).
IMay x956 ] INDIAN CONSTITUTION
person who in his judgment was most likely to command a stable

majority in the legislature."' Under the Government of India Act,
1935, the federal legislature was to consist of His Majesty repre-
sented by the Governor General and two chambers to be known
as the Council of States, and the Federal Assembly. The British
Indian representatives on the Council of States, the upper house
of the legislature, were to be elected directly by the people from
communal electorates, i.e., Hindu, Mussulman, Sikh. The mem-
bers of the lower house, the Federal Assembly, were to be elected
by members of the provincial legislative assemblies voting in elec-
toral colleges on communal lines. A Council of Ministers, con-
sisting of members of the federal legislature and responsible to it
in the familiar British pattern, was to be constituted by the Gov-
ernor General to administer the nonreserved federal subjects. But
even here the principle of cabinet responsibility was of limited
application as the Governor General was competent in his dis-
cretion to override the opinion of his ministers in the nonreserved
field. The formation of the central executive in two separate wings
-a group of counselors to help the Governor General administer
the reserved departments, and a separate council of ministers re-
sponsible to the legislature to help the Governor General admin-
ister the nonreserved federal subjects-was somewhat analogous
to the dyarchical principle used to constitute the provincial execu-
tives under the Montford Reforms. Since the federal part of the
Government of India Act, 1935, had not come into operation, the
Governor General was required under the provisions of section
317, taken in conjunction with the ninth schedule, to administer
the central subjects with the help of an executive council, at least
three of whose members were to be permanent civil servants and
one a barrister 2
V
A. The Cabinet Mission's Plan
The fifth period of our survey of the British connection with
India begins on April I, I937, with the inauguration of provincial
31. See Government of India Act, 1935, 26 GEo. 5, c. 2, § 9, and article VIII of
the draft instrument of instructions to be issued to the Governor General under § 13 of
this same act of 1935, 3 BAN.ERJE, INDIAN CONSmTmoNiAL DocumiNTs 321 (2d ed.
1949).
32. 26 GEo. 5, c. 2, § 317, 9th schedule § 36(3). Most of the executive council
members in practice were Indians.
autonomy under the Government of India Act, 1935, and closes

on August 15, 1947, when, under the terms of the Indian Inde-
pendence Act, I947," the two independent dominions of India
and Pakistan were born.
The reforms inaugurated by the Government of India Act,
1935, did not satisfy the political aspirations of the Indian people.
The second World War and the threatened invasion of India by
Japan accentuated the need for Britain to take immediate steps
to satisfy Indian aspirations for independence.
Sir Stafford Cripps came to India in March of 1942 with certain
proposals for the future set-up of India, but failed in his mission.
The All-India Congress Committee of the Indian National Con-
gress, the spearhead of Indian national sentiment, passed the fa-
mous "Quit India" resolution of August 8, 1942. The resolution
demanded the immediate ending of British rule, the declaration
of India's independence and the formation of a provisional gov-
ernment of Free India which would become an ally of the United
Nations, sharing with them the trials and tribulations of the war,
and which would formulate a plan for a Constituent Assembly
to prepare a constitution acceptable to all sections of the popu-
lace." The British Government thereupon threw all the promi-
nent leaders of Congress, including Mahatma Gandhi, into prison.
The mass of the people was not daunted by this move but began
a strong popular movement for the emancipation of the country.
The coming into power in Britain of a Labour Ministry in the
second half of 1945 changed the whole aspect of affairs and paved
the way for a friendly understanding between India and Great
Britain for the transfer of power into Indian hands. On May i6,
1946, the Cabinet Mission, after a visit to India in March, pub-
lished with the full approval of His Majesty's Government its
plan for a Constituent Assembly of 381 members distributed
among the provinces and the states on the basis of approximately
one representative for every million of the population."' Under
the Cabinet Mission's proposals, the Centre was to be invested
with power to administer only three subjects-defense, foreign af-
fairs and communications-and with the requisite authority to
raise the finances required for their administration. Such a weak
33. 10 & 11 Go. 6, c.30.
34. 1 BANERjEE, THE MAING oF THm INDiAN CONSTi-oTToN 1939-1947, at 71 (1948).
35. Id. at 145.
Centre had no prospects of long survival. The Constituent As-

sembly set up under the Cabinet Mission's plan met on December
9, 1946. But the Muslim League boycotted its proceedings and
demanded a partition of India on communal lines. The system of
communal electorates whereby Mussulmans returned their own
representatives to the legislatures, first introduced into India as
part of the Minto-Morley reforms 6 in i9o9, was a potent divisive
influence in India's national life. In the course of time that in-
fluence worked the feeling of separateness between Mussulmans
and Hindus to such a high pitch that partition of the country
became inevitable.
The continued boycott of the Constituent Assembly by the
Muslim League representatives and the communal riots which
broke out in the country led British Prime Minister Attlee to an-
nounce in Parliament on February 2o, 1947, the new policy of the
British Government: that it was their firm intention to take the
necessary steps to effect a transfer of authority to Indian hands not
later than June 1948." The fixing of a definite date for transfer
of power was explained by the then Secretary of State for India,
Lord Pethick-Lawrence, in the House of Lords on February 25,
1947, in these words: "The advice that we have received from
responsible authorities in India has been that, taking all the cir-
cumstances into account, British rule cannot be maintained upon
its existing basis with adequate efficiency after 1948.' '
B. The Passing of the Indian Independence Act, 1947
Since no agreement was possible as to who should receive
power, and as the administrative machine showed signs of break-
ing up under the colossal stress of the forces unleashed, Lord
Mountbatten announced on June 3, 1947, the new plan for the
transfer of power." Under this plan provision was made for ascer-
taining whether the Muslim majority areas would agree to a single
constitution framed by the Constituent Assembly, or whether they
wanted a separate Constituent Assembly to frame a constitution
for these areas alone. The wishes of the people were ascertained,
and the result was the division of both the Punjab and Bengal into
36. 2 B HER"EE, INDIAN CoNnOTwAL Doc NnrS
240-41 (2d ed. 1949).
37. 433 H.C. DEB. (5th ser.) 1395 (1947).
38. 145 H.L. DEB. (5thser.) 947 (1947).
39. 1 BANERjEE, THE MAKING OF THm INDIAN CoNSTITToN 1939-1947, at 443
(1948).
Muslim and Hindu areas for incorporation into Pakistan and India
respectively, and also the inclusion of the Sylhet district, which
formed part of Assam, into the eastern wing of Pakistan with East
Bengal. The Indian Independence Act, 1947, which created the
two independent Dominions of India and Pakistan, provided for
the division of the personnel of the Constituent Assembly; the
members representing the areas included in the Dominion of
Pakistan were to be formed into a separate Constituent Assembly
for that country, while the remaining members were to function
as members of the Constituent Assembly of the Dominion of
India." It was this Indian Constituent Assembly, a statutory body
enjoying sovereign powers, that framed the Constitution of India.
While it is a fact that the legal source of authority for the func-
tioning of the Constituent Assembly of India is to be found in an
act of the British Parliament, the actual ordaining of the Consti-
tution was an exercise of the inherent rights of a sovereign people
to determine the shape and content of their new charter of gov-
ernment. With the enactment of the Indian Independence Act,
1947, and the coming into existence of the Dominions of India
and Pakistan on August 15, 1947, the final chapter of British rule
in India was closed.
VI
A. The Integration of the Indian States into the Democratic
Pattern
On the eve of independence, India consisted of two segments,
one comprising the territories of the more than 500 Indian States
ruled by autocratic Indian princes, and the other consisting of the
former British Indian provinces which from April i, 1937, had
been democratically governed by the people themselves. The as-
similation of these autocratic Indian States into the over-all demo-
cratic pattern was one of the difficult problems which confronted
India on the morrow of its independence. The story of the peace-
ful and orderly integration of these Indian States into the web of
Indian life, within a period of less than two and one-half years
from the time India got its independence-thanks to the dynamic
leadership of the then Deputy Prime Minister of India, the late
Sardar Vallabhbhai Patel-is a fascinating one. Some of its details
are narrated in Section B of this Article.
40. 10 & 11 GEo. 6, c. 30, S 8(1), (2) (a).
AMay 19561 INDIAN CONSTITUTION
B. India's Relationship with the British Commonwealth

The second great achievement of the period from 1947 to i95o
was the adjustment in the most cordial fashion of India's future
relationship with the British Commonwealth of Nations. India
was to become a republic under its new Constitution, then in the
process of being hammered out. At the conference of the Prime
Ministers of Great Britain, the Dominions and India held in Lon-
don in April 1949, it was unanimously agreed that India would
remain a member of the British Commonwealth of Nations, ac-
cepting the King "as the symbol of the free association of its inde-
pendent member nations and as such the Head of the Common-
wealth."' A purist might remark that the arrangement whereby
a republican country accepted a king as the head of a group of
associated independent nations sounds rather illogical. My own
reaction to such a remark would be that a little lapse from logic
would probably do good to all of us, especially when justified by
the circumstances. Bernard Shaw in his play The Apple Cart
makes King Magnus say: "Are you inexorably determined to force
this issue to its logical end? You know how un-English it is to
do that." An Englishman is not very much worried about the
logical symmetry of an arrangement, provided it works properly.
We in India have taken a leaf out of British experience in accept-
ing this arrangement, which, though not very logical, still yields
fruitful results.
Two important questions arose in connection with this ar-
rangement. (i) What is the status of the Indian Republic in the
eyes of international law? (2) What exactly is the relationship
which India will have to the other members of the Common-
wealth?
The answer to the first question is that India is a fully inde-
pendent State from the standpoint of international law. The fol-
lowing features of the new republic place this question beyond
the pale of controversy: (i) The Republican Constitution is a
paramount law which has derived its life sustenance from the
inherent sovereign right of the Indian people to constitute their
own government. (2) The Constitution completely eliminates the
British Crown from every aspect of India's internal life and ex-
41. VADE & PHLLIPS, CONSTITUTIONAL LAW 448 (4th ed. 1950). For discussion of
this arrangement, see Ramaswamy, The Commonwealth of Nations and India, 3 IN1Mts
L. REv. 137 (1949).
ternal relations. All the high functions associated with a sovereign

power, like the declaration of neutrality or of war and the making
of peace, reside in the Indian people. (3) Her diplomatic repre-
sentatives in foreign countries are accredited in the name of the
President of the Indian Republic. (4) She is completely inde-
pendent in her treaty-making powers. (5) Her citizens are na-
tionals of India owing allegiance to India alone.
The second question does not admit of a clear-cut answer, be-
cause the relationship of India vis-a-vis the other members of the
Commonwealth is a fluid one. The Queen, who is only the sym-
bolic head of the Commonwealth, has no constitutional functions
in relation to India. The ties which bind India to the Common-
wealth will henceforward be primarily cultural and economic.
Political relations between India and the Commonwealth will be
a matter of voluntary negotiation and adjustment.
These two important problems having been solved satisfac-
torily, the settlement of the final shape of the new Constitution
presented little difficulty. Section B of this Article presents an
expository survey of this Constitution as it appeared on the date
of its inauguration.
Section B: The Constitution of the Indian Republic
I
On the 26th of January, i95o, India joined and greeted the
family of free nations as a sovereign democratic republic. It was
a day memorable in the annals of mankind, because on that day
an ancient country, which from the very dawn of history has been
in the vanguard of civilization, re-entered the world stage after a
temporary eclipse and resumed its onward march.
In the process of building a sound constitutional foundation
upon which to construct the future life of the nation, its architects
had to solve many difficult initial problems. With the country
broken up into two segments, one under the autocratic rule of
hereditary princes and the other under the democratic rule of the
people themselves, there would have been little hope of rearing
an enduring democratic fabric in the land. On August 15, 1947,
when the Indian Independence Act came into force, there were
May 1956] INDIAN CONSTITUTION
within the frontiers of the new Dominion of India not only nine
Governors' Provinces, which had been under democratic rule ever
since 1937, but also some 56o Indian States, which were under the
autocratic rule of hereditary princes. The British Government re-
fused to transfer its paramountcy rights over the Indian States to
the new successor state of the Dominion of India, and section 7
of the Indian Independence Act, 1947, terminated the suzerainty
rights of the British Crown, thereby causing all treaties and engage-
ments in force at the time between the British Crown and the
rulers of Indian States to lapse. This at one bound not only con-
ferred upon these states the theoretical rights to be independent
but also made them islands of territory cut off from the rest of
India. Their new relationship with the Indian Dominion was
left to be determined by future negotiation and adjustment. When
it is remembered that the territories of these principalities were scat-
tered throughout the length and breadth of India and equaled
roughly two-thirds of the area of the Governors' Provinces, their
integration into the web of Indian life became a matter of extreme
urgency. Moreover, it would have been extremely incongruous if
the people of these Indian States, who numbered nearly a third of
the population of the Governors' Provinces, had been allowed to
continue under the despotic rule of the princes, isolated from the
national upsurge that had brought the country its cherished free-
dom.
It is true that in the wake of the independence that came to the
country in August 1947, the peoples of a few of these Indian States,
who had built up democratic organizations over many years in their
territories, were able to wrest power from the hands of their rulers.
But in most states the people had neither the resources nor the
training required to throw off the yoke of their autocratic masters.
Apart from the need of salvaging these states from the morass of
feudal rule, it was necessary to reduce their number very con-
siderably, because most of them were not only small but also lacked
the resources required to sustain efficient administrations. The
problem of the successful integration of these states into the struc-
ture of India bristled with difficulties. But thanks to the vision
and statesmanship of the Deputy Prime Minister of India, Sardar
Vallabhbhai Patel, this rather intractable problem was solved in a
most admirable fashion. A large number of the Indian States were
merged into the territories of the adjacent Governors' Provinces.
In five regions of the country there were clusters of Indian

States; these were consolidated into five separate units. These five
units, together with three large Indian States which alone among
the original states retain their old identity and frontiers intact,
joined the nine Governors' Provinces-also to be known as states
thenceforth-to become full-fledged units of the federal structure
created under the terms of the new Constitution. The eight states
formed out of old Indian State territory are set out in part B of
the first schedule to the new Constitution; 2 the nine former British
Indian Governors' Provinces are enumerated in part A of this
schedule. 3 It is necessary to draw pointed attention to the fact
that the states mentioned in part B of the first schedule are, under
the Constitution, fully democratic states, occupying both in
respect of their internal governmental structures and their rela-
tionship to the Union Centre, a position substantially analogous
to the states mentioned in part A of the first schedule. While each
state mentioned in part A has a governor appointed by the Presi-
dent of India,"5 each state enumerated in part B has a person called
the Rajpramukh, recognized as such by the President, to perform
the functions of a governor." The Rajpramukhs who initially
headed the administrations of the eight states in part B of the first
schedule were members of the old princely order. But this fact
makes no difference in the powers they exercise. The position of a
Rajpramukh is completely assimilated to the position of a gov-
ernor, and both functionaries not only derive their powers wholly
from the provisions of the Constitution but also exercise them
subject to the terms and conditions prescribed in it 6
Five other former Indian States and two consolidated units
formed from the union of smaller Indian States" were made sub-
ject to administration by the President under part VIII of the
42. INDIAN CONST. sched. 1, pt. B. The eight states are Hyderabad, Jammu and
Kashmir, Madhya Bharat, Mysore, Patiala and East Punjab States Union, Rajasthan, Sau-
rashtra, Travancore-Cochin. The consolidated state of Vindhya Pradesh was initially in
part B but was transferred to part C before the effective date of the Constitution. See
note 47 infra.
43. INwsAw CONSr. sched. 1, pt. A. The nine states are Assam, Bihar, Bombay, Madhya
Pradesh, Madras, Orissa, Punjab, Uttar Pradesh and West Bengal. In 1953 the state of
Andhra was created by carving out part of Madras. Andhra was created for linguistic
conformity within that area as opposed to the rest of Madras. See pp. 377-78 infra.
44. INDIAN CONST. art. 155.
45. Id. art. 238(1).
46. Id. art. 366(21). See id. pt. VI (governor), pt. VII (Rajpramukh).
47. Before the Constitution went into effect Cooch-Behar, a former Indian State
which was to be a part C state, was merged with the part A state of West Bengal and
replaced in part B by Vindhya Pradesh, a consolidation of many Indian States.
Ma14y 1956 ] INDIAN CONSTITUTION
Constitution." These seven units-also called states under the Con-

stitution-were enumerated in part C of the first schedule,49 along
with the three old Chief Commissioners' Provinces of Ajmer-
Merwara, Coorg and Delhi, as states to be administered from the
Centre by the President of India acting, to such extent as he thinks
fit, through a chief commissioner or a lieutenant-governor ap-
pointed by him, or through the government of a neighboring prov-
ince." The Constitution authorizes the creation by Parliament,
for any state mentioned in part C of the first schedule and admin-
istered through a chief commissioner or lieutenant-governor, of
either a legislature or a council of advisors or ministers, or both,
with such constitution, powers and functions in each case as may
be prescribed by law." The units mentioned in part C, though
called states, are in a category very different from that of the states
listed in part B which, like the part A states, are autonomous and
full-fledged units of the federation, with the structure of their gov-
ernmental organs and their powers fully defined in the Constitu-
tion itself.
Thus, the 560 Indian States that existed as separate units on
August 15, 1947, were, within the space of two and a half years,
reduced to fifteen units, of which eight were full-fledged states
and the remaining seven centrally-administered states." In the
process of assimilating these 560 Indian States into the matrix of
India, the Dominion Government entered into covenants with their
rulers, fixing definite sums as their privy purses, an arrangement
which is said to have reduced the drain on the country's resources
on this account to a fraction-estimated to be about one-ninth-
of what it was formerly. And these payments were guaranteed
to their recipients and made a charge on the Consolidated Fund of
India. " These significant changes, all of which were brought about
during the short period of two and a half years after India became
a Dominion on August i5, 1947, have not only resulted in the
virtual disappearance of the Indian States from the contemporary
Indian scene but have made the country a well-knit and homoge-
neous unit.
48. INDIAN CoNsr. arts. 239-42.
49. These states are Bhopal, Bilaspur, Hinachal Pradesh, Kutch, Manipur, Tripura
and Vindhya Pradesh. In 1954 the State of Bilaspur was merged with Himachal Pradesh.
See p. 377 infra.
50. INDIAN CoNsr. art. 239(1).
51. Id.art.240(1).
52. See notes 42, 43, 47, 49 supra. 53. INwtANCoNsT.art.291.
If the problem of evolving order out of the crazy quilt of juris-

dictions created by the existence of 56o feudal Indian States within
the bosom of India was an important one, no less important was
the problem of eliminating from our national life the pernicious
system of the segregated voting of communities classified on reli-
gious lines. This communal voting system had not only poisoned
national life for over forty years but had also brought about the
division of the country, accompanied as it was by the uprooting of
millions of people from their old moorings and by the imposition
of unparalleled misery and suffering. If health were to be restored
to our national life there was imperative need for abolishing the
communal system of voting.
This system was first introduced into India in i9o9 as part of
the Minto-Morley reforms, when separate electorates were created
for the Mussulmans to return members of their own faith to the
legislatures. To the then Viceroy of India, Lord Minto, who vigor-
ously advocated the system of communal voting, must attach a
large part of the blame for introducing this divisive influence into
our national life. The Secretary of State for India at that juncture,
Viscount Morley, who appears at first to have favored joint elector-
ates with reservation of seats for Mussulmans, subsequently yielded
to the Viceroy on this point." He, however, appears later to
have regretted the step that had been taken. The following pas-
sage, which occurs in his Recollections, indicates his real feeling:
"December 6-1 won't follow you again into our Mahometan dis-
pute. Only I respectfully remind you once more that it was your
early speech about their extra claims that first started the M.
[Mahometan] hare. I am convinced my decision was best."" Like
a rolling snow-ball, this institution of communal voting got new
accessions of strength with the passage of time. And not only were
other religious minorities brought into the fold of compartmental-
ized voting, but strange as it may now appear, this principle was
extended from legislative elections to municipal elections.
With the bitter experience of recent events before them, most
of the representatives of the minority communities in the Indian
Constituent Assembly, which itself was formed on communal lines,
were anxious that in their own interests communal voting should
54. See SIvAsAN, DEmocRATIC GovRNmENT IN INDiA 38-40 (1954).
55. 2 MoRETY, RwCOLLECONS 325 (1910).
be abolished once and for all." The consciousness had slowly

dawned upon them that not only were separate electorates a nega-
tion of democracy, but that, in the long run, the best safeguard for a
minority in a country was the goodwill of the majority. Now,
thank God, this vicious institution has made its final exit. We
have cleared the stream of our national life of a deadly pollutant,
which had permeated it for four decades. Sanity and health may
now be restored to the body politic.
I do not propose to deal with any of the other difficulties that
had to be surmounted in the process of creating a healthy consti-
tutional structure for the future life of the nation. Other problems
were relatively minor compared with the two great ones to which
I have called attention.
II
Before I proceed to examine the provisions of the new Consti-
tution in some detail, I should like to summarize its outstanding
features.
(i) India is a sovereign democratic republic established by the
people of India in their total sovereign capacity.
(2) That republic has an elected President as its figurative
head.
(3) The President of India has the assistance of a Council of
Ministers, with the Prime Minister at its head, to aid and advise
him in the exercise of his functions. The Council of Ministers
functions, like the British Cabinet, as a team responsible to the
popular house of the Union Legislature, the House of the People.
(4) The new State created by the people under the terms of the
Constitution will be a composite State with a central government
and provincial units, with legislative, executive and judicial pow-
ers distributed between them on the model of a federal polity.
(5) The new state, though federal in many of its characteristics,
cannot be described as a full-blown federal state. The more accurate
way to describe it is to say that it is a quasi-federation. I think we
might take the definition of a federal state given by Sir Robert
Garran, a former Solicitor-General of the Commonwealth of Aus-
56. The Constituent Assembly's action is reflected in INDiAN CONST. arts. 325, 326.
However, the Constitution provides for a representative number of seats for certain
minority groups in the House of the People and the state assemblies, id. arts. 330-33, for
a period of ten years after the date of the Constitution, id. art. 334.
tralia, as an accurate statement of its constitutional features. He

says that a federal state represents "a form of government in which
sovereignty, or political power, is divided between the central and
the local governments, so that each of them within its own sphere
is independent of the other. The distribution of powers between
the local and central governments may vary to any extent; but the
fundamental idea is always that of the two-fold sovereignty and
5
the independence of each government within its own sphere." '
While the Indian Constitution divides governmental powers
between the central and regional governments and thus demarcates
the spheres in which the two authorities will normally function,
it also provides that, in certain contingencies, the Union Centre can
encroach upon the field of the constituent units. For instance, if the
upper house of the federal legislature, called the Council of States,
passes by two-thirds vote a resolution declaring it necessary or
expedient in the national interest that Parliament should make
laws with respect to any matter constitutionally within the ex-
clusive legislative competence of the states,"8 it becomes competent
for Parliament to make such laws for the states to be operative for
not more than a year."9 The currency of such legislation may also
be enlarged for additional periods of one year at a time by reso-
lutions of the Council of States."0 This provision therefore confers
express authority for the invasion of the state field by the Union
Centre in certain circumstances.
Again, if the President of India is satisfied that a situation has
arisen threatening the financial stability or credit of India or any
of its parts, he may so proclaim."' Upon the issuance of the procla-
mation, the executive authority of the Union extends to giving
directions to any state to observe such canons of financial pro-
priety as may be specified in the direction," including a direction
for the reduction of the salaries of state public servants.6
Article 371 provides that for ten years from the commencement
of the Constitution, or during such longer or shorter period as
57. Report of the Royal Commission on the Australian Constitution 230 (1929).
58. See INDIAN CONST. sched. 7, list II.
59. ld. art249(1), (2).
60. Id. art. 249(2).
61. Id. art. 360(1).
62. Id. art. 360(3).
63. Id. art. 360(4) (a) (1). Also, all money bills of the state legislature may be made
subject to the approval of the President. Id. art. 360(4)(a)(ii). The salaries of all per-
sons connected with the affairs of the Union including the judges of the Supreme Court
and High Courts may be reduced by directions. ld.art. 360(4) (b).
Parliament may provide in respect of any state, the government

of every state specified in part B of the first schedule shall be under
the general control of the President, and shall comply with any
particular directions he may give." I do not doubt for one moment
the wisdom of the framers of the Constitution in introducing this
transitional provision. Barring the two states of Mysore and the
Travancore-Cochin Union, which have had long records of suc-
cessful and efficient administration and may not need any detailed
control from the Centre, careful and close supervision by the Centre
over the part B states was required to establish modern and effi-
dent administrations in their territories. Otherwise, not only
would the people of these states have suffered but the possibility
of fitting them into the general democratic pattern would have
been gravely imperiled.
And in a serious emergency, when the security of India or any
part of its territory is threatened, whether by war or external aggres-
sion or internal disturbance, or when there is a breakdown in the
governmental machinery of the states, power has been reserved for
the Union Centre to interfere in the affairs of the states."5
I am personally satisfied that all these provisions were both
wise and necessary. But the point I want to make at this stage is
that the fundamental postulate of a federal polity, that the central
and state governments functioning under it are co-ordinate au-
thorities, each independentwithin its own sphere, cannot be predi-
cated for the relationship that subsists between the union govern-
ment and a state government under the Indian Constitution. The
provisions to which I have referred make it clear that the union
government has very wide powers in certain contingencies to in-
trude into the state sphere in the wider interests of the country.
That is why I say that the polity created by the new Constitution
is a quasi-federation and not a pure federation. I must, however,
warn the reader against any impression that it was the intention
of the framers of the Constitution, by introducing these provisions,
to make the state sphere a field for constant interference by the
Union Centre. Some of these provisions were demanded by the
exigencies of the situation that existed. And the others, like the
emergency provisions to meet the needs of grave internal disturb-
ances or the perils of war or the breakdown of a state governmental
64. Id. art.371.
65. Id. arts. 352-58.
machinery are provisions that any prudent constitution-maker

would make. I do not know what the future holds in store for the
country. But I am convinced that if the gifted leaders who are
now at the helm of the country continue in that position, they
will see to it that, within a short period, there will be functioning
in India vigorous and self-respecting provincial units, which in
their actual working will be as independent within the sphere
marked out for them in the Constitution as the Union Centre will
be within its own domain.
(6) Under the new Indian constitutional arrangements not
only the governmental structure and powers of the Union Centre
but also the governmental structure and powers of the component
units form part of one organic law. To be contrasted are the ar-
rangements in Australia and the United States, where the internal
constitutions of the federal units are regulated by the peoples of
1those units themselves and are kept outside the purview of the
organic laws under which the federal governments were set
up. Thus, the Commonwealth of Australia Constitution Act, 19oo ,
provides: "The Constitution of each State of the Commonwealth
shall, subject to this Constitution, continue as at the establishment
of the Commonwealth, or as at the admission or establishment of
the State, as the case may be, until altered in accordance with the
Constitution of the State."6
(7)In each of the states mentioned in parts A and B of the first
schedule-seventeen in all-which were the full-fledged units of
the federation, there is a governor (or Rajpramukh) as the execu-
tive head, with a council of ministers, working on the pattern of the
British Cabinet, to assist him in the administration of the state.
(8) An important feature of the new Constitution is that the
elections of the House of the People and the legislative assembly
of every state are on the basis of adult franchise." Another notable
provision in the Constitution vests the preparation of the electoral
rolls and the conduct of all elections to Parliament and to the state
legislatures in an Election Commission consisting of a Chief Elec-
tion Commissioner and such other election commissioners as the
President may appoint. " The Chief Election Commissioner can-
not be removed from office except in like manner and on the like
66. AUSrr.ALIA CoNST. § 106.
67. INDIAN CONSr. art. 326.
68. Id. art. 324(1) (2).
grounds as a judge of the Supreme Court of India." The object

of these provisions is to ensure the fairness and impartiality of
elections.
(9) The Constitution has incorporated into it a group of funda-
;mental rights, enforceable in courts of law, to protect the basic
rights of the
70
individual, modeled somewhat on the American Bill
of Rights.
(io) The Constitution provides that the official language of
the Union of India shall be Hindi in the Devanagari script.7 For
fifteen years from the commencement of the Constitution, how-
ever, the English language will continue to be used for all purposes
of the union government." And the Union Parliament has been
empowered to provide for the use, even after fifteen years, of the
English language for such purposes as it may specify.73
I shall now consider, in some detail, the main features of the
Indian Constitution. The new Constitution, which consists of 395
articles arranged under twenty-two parts, with eight schedules ap-
pended to it, is probably the longest state organic law now in ex-
istence.
III
A. The Preamble
The Constitution opens with a preamble.
WE, THE PEOPLE OF INDIA, having solemnly resolved to con-
stitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to
secure to all its citizens: JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship; EQUAL-
ITY of status and of opportunity; and to promote among them all FRA-
TERNITY assuring the dignity of the individual and the unity of the
Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day
of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.
B. The Union and Its Territory

Under article i, India, which is also to be known as Bharat, is
a Union of States. The components of the Union were originally
nine states listed in part A, eight states enumerated in part B and
69. Id. art. 324 (5).
70. Id. pt. 1i.
71. id.art.343(l).
72. Id. art. 343(2).
73. Id. art. 343(3).
ten states included in part C of the first schedule." The territories

of these twenty-seven states, the territory of the Andaman and
Nicobar islands" and other territories that may be acquired later
will comprise India."
Provision has been made for the Union' Parliament to admit
into the Union, or establish, new states on such terms and condi-
tions as it thinks fit." The Union Parliament, subject to certain
conditions, has been empowered to (a) form a new state by separa-
tion of territory from any state or by uniting two or more states
or parts of states or by uniting any territory to a part of any state;
(b) increase the area of any state; (c) diminish the area of any
state; (d) alter the boundaries of any state, and (e) alter the name
of any state. The Constitution requires that before a bill having any
of the objects mentioned is introduced into Parliament not only
must the recommendation of the President be obtained but also,
if the proposal affects the boundaries or name of any state men-
tioned in part A or part B of the first schedule, the views of the
legislature of the state affected.78
C. Citizenship
The provisions on citizenship contained in articles 5 to 1o
do not comprise anything in the nature of a complete code on this
difficult subject. The problems to be solved in framing a satisfac-
tory law on citizenship are so many and so very complex that an
adequate law on the subject would require a whole host of pro-
visions. The new Canadian Citizenship Act, 1946, ' which has
been regarded as a model of its kind, contains no less than forty-
seven sections. The six articles in the Indian Constitution were
framed with the limited objective of defining what classes of indi-
viduals would be regarded as citizens of India from the outset;
Parliament was given authority to make "any provision with re-
spect to the acquisition and termination of citizenship and all other
matters relating to citizenship."8 The general effect of the pro-
visions on citizenship may be summarized as follows:
74. See notes 42, 43, 47, 49 supra.
75. INDxW CONsr. sched. 1, pt.D.
76. Id. art. 1(3).
77. Id. art. 2.
78. Id. art. 3.
79. 10 Gao. 6, c. 15 (Canada).
80. INDIAN CONST. art. 11.
(I) At the effective date of the Constitution of India, every

person who had his domicile in the territory of India and (a) who
was born in the territory of India; or (b) either of whose parents
was born in the territory of India, or (c) who had been ordinarily
resident in the territory of India for not less than five years im-
mediately preceding the effective date, was regarded as a citizen
of India.8
(2) This general provision has been supplemented by an ex-
press provision designed to confer citizenship rights on the many
millions of people who were compelled to abandon their homes
in what is now Pakistan and migrated to India following the parti-
tion of the country 2
(3) Persons who, though born in the territory of India, mi-
grated after March 1, 1947, from the territory of India to the terri-
tory now included in Pakistan are not deemed citizens of India."
IV
A. FundamentalRights
Both the Simon Commission and the Joint Select Committee
had examined the proposal of incorporating safeguards for the
fundamental rights of the individual and had rejected it as im-
practicable. The Joint Select Committee in its report had observed:
But there are also strong practical arguments against the proposal,
which may be put in the form of a dilemma: for 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 on the
powers of the Legislature and to create a grave risk that a large number
of laws may be declared invalid by the Courts because inconsistent with
one or other of the rights so declared. 4
In my work on FundamentalRights, published in 19465 1 made

an elaborate examination of this problem with reference to the
81. Id.art.5.
82. Id. art. 6. Persons who, either themselves or either of whose parents or any of
whose grandparents were born in undivided India, and who having migrated to India
from Pakistan on or after July 19, 1948, have resided in India since then, or who having
migrated from Pakistan on or after July 19, 1948, have been registered as citizens of
India by an officer appointed for that purpose, will be deemed to be citizens of India. Also
nationals in other countries who have registered with the consular officials are deemed
citizens of India. Id. art. 8.
83. Id. art. 7.
84. Report of the Joint Committee on Indian Constitutional Reform, 1933-34 sess.,
vol. 1,p. 216.
85. R1AAsw~tv, FuNnAAzwrTA. RiGHrs (1946).
working of the American Bill of Rights and to the position in the

United Kingdom. I reached the conclusion that not only was it
possible to draft a code of fundamental rights to protect vital human
rights but that it was also possible to draft it so as greatly to mini-
mize the risk of a large number of laws being declared invalid by
the courts. I also embodied in my book a draft Code of Funda-
mental Rights which, in my view, could with advantage be intro-
duced into the new Indian Constitution. Sir Maurice Gwyer, the
first Chief Justice of the Federal Court of India, in a foreword
agreed with my conclusions upon this matter and also pointed out
that the risk of a large number of laws being rendered invalid was
negligible under that draft code.
Mr. Ramaswamy is not unaware of the latter danger; but the funda-
mental rights which he suggests might find a place in any future Indian
Constitution are sufficiently restricted in number to make the risk negli-
gible. He very wisely bases his suggestions on that great instrument,
the Constitution of the United States of America; but he is not pre-
pared to follow blindly even that precedent. It is possible that both the
Simon Commission and the Joint Select Committee, if they had paid
greater attention to the American authorities, might themselves have
arrived at conclusions different from those which they embodied in their
Reports; and it is not the least valuable part of Mr. Ramaswamy's work
that he has been able to show from the American reports that the funda-
mental rights conferred upon American citizens by the Constitution
of the United States are real and effective, constantly enforced and
readily enforceable. They are few in number but they protect all the
vital interests of the human personality; and there seems no practical
reason why provisions on similar lines should not be embodied, to the
great advantage not only of minorities, in an Indian Constitution."'
Anybody who has made a dispassionate study of the working

of the American Bill of Rights will bear testimony to the fact that
it has made an immense contribution to the building up of a regime
of freedom and liberty in the United States. It has acted as a check
upon the abuse of authority by governmental organs to the detri-
ment of the vital interests of individuals. It is true that in the last
analysis what ensures to a people the enjoyment of freedom is an
eternal vigilance on the part of the people themselves. But it is
also true that the help which the courts can give by their powers
of judicial review, if fundamental rights are written into a con-
stitution in the form of limitations upon the powers of govern-
86. Id. at v-vi.
ment, is valuable at least as a first barricade of defense against in-

tolerant majorities. Mr. Justice Jackson in West Virginia State
Bd. of Educ. v. Barnette" has well summarized the philosophy
underlying the American Bill of Rights.
The very purpose of a Bill of Rights was to withdraw certain sub-
jects from the vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them as legal prin-
ciples to be applied by the courts. One's right to life, liberty, and prop-
erty, to free speech, a free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to vote; they depend
on the outcome of no elections.,8
The Code of Fundamental Rights embodied in articles i2 to 35

of the Indian Constitution forms in my view an adequate and
workable charter of human rights, striking a reasonable balance
between the rights of individuals and the rights of society. These
provisions, which are to be binding upon both the Union Centre
and the constituent units, contain guarantees to individuals, inter
alia, that they will have equal protection of the laws,,9 freedom of
speech and expression," freedom of worship, 1 freedom of assem-
bly and association," freedom to move throughout the territory
of the Union and also to reside and settle anywhere 3 and freedom
to follow any occupation, trade or business." "Untouchability" is
abolished and its practice in any form forbidden; the enforcement
of any disability arising out of "untouchability" is made a punish-
able offense." The Supreme Court of India is given the power to
issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and cer-
tiorari, for the enforcement of any of the rights guaranteed. 6 The
Union Parliament has been granted the authority to empower any
other court to exercise within the local limits of its jurisdiction all
or any of the powers exercisable by the Supreme Court in this
matter. 7
87. 319 U.S. 624 (1943).
88. Id. at 638.
89. INmAN CoNsT. art. 14.
90. ld.art. 19(1)(a).
91. Id. arL 25.
92. Id. art. 19(1)(b)-(c).
93. Id. art. 19(1)(d)-(e).
94. Id. art. 19(1)(g).
95. Id. art. 17.
96. Id. art. 32 (2).
97. ld. art. 32 (3).
STANFORD LAW REVIEW [VOL. 8: Page 326
B. Directive Principlesof State Policy

Articles 36 to 51 embody what have been described as "Directive
Principles of State Policy."9 These provisions, which are not to
be enforceable by any court, are mentioned as principles to be re-
garded as fundamental in the governance of the country, which it
shall be the duty of both the union and state governments to apply.
Although I at one time questioned whether their incorporation
served any useful purpose,"9 I now believe that their presence in the
Constitution has been useful in focusing the attention of the legis-
latures on the goals to be kept in view in fashioning their enact-
ments. The "Directive Principles of State Policy" have, in fact,
exerted a beneficent influence on the course of legislation, both
union and state, and have helped forward the main objective back
of them-the building up of a socialistic pattern of society in India.
To give an example or two, article 39 provides, inter alia, that the
State shall in particular direct its policy toward securing (a) that
the citizens, men and women equally, have the right to an adequate
means of livelihood, and (b) that the ownership and control of the
material resources of the community are to be so distributed as best
to subserve the common good. And article 42 declares that the
State shall make provision for securing just and humane conditions
of work and for maternity relief.
V
A. The Union Executive
Although the Constitution provides for an elected President of
India in whom the executive power of the Union is vested,"' the
real executive that carries the burden of conducting the union
administration is the Council of Ministers, with the Prime Min-
ister at its head, which aids and advises the President in the exer-
cise of his functions. 1 ' The relationship that subsists between the
President and his Council of Ministers is analogous to the relation-
ship the Queen in England bears to the British Cabinet. The Con-
stitution expressly provides that the Prime Minister shall be ap-
pointed by the President, and the other ministers by the President
98. The idea of embodying a code of "Directive Principles of State Policy" was evi-
dently borrowed from the Irish Constitution of 1937.
99. See Ramaswamy, The Constitution of the Indian Republic, 28 CAN. B. REv. 1,
14 (1950).
100. INDIA r CONST. arts. 53(1), 54.
101. ld. art. 74.
on the advice of the Prime Minister, and further that the Council
of Ministers shall be collectively responsible to the House of the
People 0 The principle upon which the British cabinet form of
government works, that the cabinet functions as a team and holds
office only so long as it enjoys the confidence of the legislature, is
therefore fully applicable to the Union Council of Ministers. The
ministers hold office during the pleasure of the President'0 and a
minister who for a period of six consecutive months is not a mem-
ber of either House of Parliament ceases to be a minister 0
The President of the Union is elected by an electoral college
consisting of the elected members of both Houses of the Union
Parliament and the elected members of the legislative assemblies
of the states.0"' In order to secure uniformity in the scale of repre-
sentation of the different states inter sese at the election, and equal-
ity between the states as a whole and the Union, an arrangement
of weighted votes has been adopted 0 The President, who holds
office for the term of five years,' is vested with the supreme com-
mand of the Defense Forces, the exercise of which is to be regulated
by law.' He can be removed from office by impeachment for vio-
lation of the Constitution, under the special machinery that has
been devised for that purpose. 9
The Vice-President of India is the ex-officio Chairman of the
Council of States."0 He is elected by the members of both Houses
of Parliament assembled at a joint meeting and holds office for a
term of five years."'
B. The Union Legislature

The Union Legislature, which is known as Parliament, consists
of the President and two Houses, the Council of States and the
House of the People. 2
102. Id. art. 75(1), (3).
103. Id. art. 75 (2).
104. Id. art. 75 (5).
105. Id. art. 54. The first President of India was Dr. Rajendra Prasad, who took
office on January 26, 1950, pursuant to a transitional provision of the Constitution, id.
art. 380, whereby the Constituent Assembly elected a President to serve until the first
national election. Dr. Prasad was elected President in March 1952 for a five-year term.
106. Id. art.55.
107. Id. art. 56(1).
108. Id. art. 53(2).
109. Id. art. 61.
110. Id. art. 64.
111. Id. arts. 66(1), 67.
112. Id. art. 79.
The Constitution provides that the Council of States shall con-

sist of twelve members to be nominated by the President for their
special knowledge in literature, science, art or social service, and
not more than 278 representatives of the states, allocated among
them in accordance with the fourth schedule 13 The members to
be returned by each state specified in parts A and B of the first
schedule are elected by the elected members of the legislative as-
sembly of the state.'14 The representatives of the states mentioned
in part C of the first schedule are chosen in such manner as the
Parliament may prescribe." The Council of States is not subject
to dissolution, but as nearly as possible one-third of its members
must retire every second year."'
The House of the People consists of not more than 500
members elected by the voters of the states, voting directly in terri-
torial constituencies constituted on the basis of adult suffrage."7
The normal
8
life of the House, unless sooner dissolved, is five
years."1
The relationship that subsists between the two Houses under
the Constitution is broadly as follows. All bills, except money
bills, can originate in either House and must be passed by both
Houses and be assented to by the President before they become
laws.' In case of a conflict between the two Houses, provision
has been made for a joint session, and a bill that, with any amend-
ments agreed to at the joint sitting, is passed by a majority of the
total members of both Houses present and voting is deemed to have
been passed by both Houses.' A money bill can be introduced
only in the House of the People and when it is passed by that House
it is transmitted to the Council of States, to be returned to the
House of the People within fourteen days with any recommenda-
tions the Council may make 2 If the House of the People does
not accept any of the recommendations made by the Council of
States, the money bill is deemed to have been passed by both Houses
113. Id.arr 80(1), (2), (3).
114. ld.art. 80(4).
115. Id. art. 80(5).
116. Id. art. 83(1).
117. Id. art. 81(1)(a).
118. Id. art. 83 (2).
119. Id.art. 109.
120. Id. arts. 107, 111.
121. Id.art. 108.
122. Id. art. 109(l), (2).
in the form in which it was passed by the House of the People 2

Another noteworthy point is that, although the Annual Financial
Statement, containing a statement of the estimated receipts and
expenditure of the Government of India for every financial year,
has to be laid before both Houses of Parliament, 2 " only the House
of the People votes upon the demands for grants. It can assent,
refuse or assent subject to a reduction of the grant demanded 5
The House cannot vote to appropriate money or to impose or raise
a tax, except upon the recommendation of the President 6
C. The Union Judiciary
The Constitution provides for a Supreme Court of India con-
sisting of a Chief Justice of India and, until Parliament by law
prescribes a larger number, not more than seven other judges!'
A judge of the Supreme Court is appointed by the President and
holds office until he attains the age of sixty-five."' Certain pro-
fessional qualifications have been prescribed for a person to be
regarded as eligible for appointment as a judge of the Supreme
Court."2 A judge of the Supreme Court may not be removed from
office except by an order of the President, passed after each House
of Parliament has in the same session addressed the President, ask-
ing for30removal on the ground of proved misbehavior or inca-
pacity.
The Supreme Court of India under the terms of the Consti-
tution exercises a very wide jurisdiction. The Court has an ex-
clusive original jurisdiction in any dispute between the Govern-
ment of India and one or more states, or between two or more
states, insofar as the dispute involves any question (whether of
law or fact) on which the existence or extent of a legal right
depends 13
An appeal lies to the Supreme Court from any judgment, decree
or other proceeding, if the High Court of a state certifies that the
123. Id.art. 109(4).
124. Id.art. 112.
125. Id.art. 113(2).
126. Id. art. 113(3).
127. Id.art. 124(1).
128. Id.art 124(2).
129. Id.art.124(3).
130. Id. art. 124(4). It takes a majority of the total membership as well as two
thirds of those present to vote in favor of the change.
131. Id.art. 131.
case involves a substantial question of law as to the interpretation

of the Constitution; or, where a High Court has refused a certifi-
cate, by a grant of special leave to appeal by the Supreme Court
itself on the ground that the case involves such a constitutional
question.'32 An appeal also lies to the Supreme Court from any
,judgment, decree or final order in a civil proceeding of a High
Court, if the High Court certifies that a certain minimum amount
is in controversy or affected by the judgment or that the case is
a fit one for appeal to the Supreme Court."' Where the judgment,
decree or final order appealed from affirms the decision of the
court immediately below in a case in which the right to appeal
depends initially on the amount in controversy, the High Court
must certify further that the appeal involves some substantial ques-
tion of law."" The Supreme Court is invested with an advisory
jurisdiction under which the President may refer questions of law
or fact of public importance to the Court for its opinion."'
Where a High Court on an appeal has reversed an order of
acquittal of an accused person and sentenced him to death, or
where a High Court has withdrawn any case from a subordinate
court for trial before itself and sentenced a person to death, or
where a High Court has granted a certificate that a criminal case
is a fit one for appeal, an appeal lies to the Supreme Court."' The
Court has also been vested, as we have already seen, with authority
to issue writs to enforce the fundamental rights mentioned in
part III of the Constitution." '
VI
A. The States in Part A of the First Schedule
The Executive. In part VI of the Constitution have been em-
bodied the provisions dealing with the governmental machinery
created for the administration of the states in part A of the first
schedule. Each of these states has a governor appointed by the
President as its executive head."' He holds office, subject to the
pleasure of the President for a term of five years." 9 The executive
132. Id. art. 132.
133. Id. art. 133(1).
134. Ibid.
135. Id. art. 143.
136. Id. art. 134.
137. ld. art. 139.
138. Id. arts. 155, 154(1).
139. Id. art. 156(1), (3).
,power of the state is vested in him to exercise either directly or

through subordinate officers.'0 Like the President, he has the as-
sistance of a council of ministers, with a chief minister at the
head, to aid and advise him in the performance of his functions.'
The council of ministers works as a team responsible to the legis-
lative assembly of the state..
The Legislature. For every part A state there is a legislature
which consists of the governor and in the States of Bihar, Bombay,
Madras, the Punjab, Uttar Pradesh and West Bengal, two houses,
and in the other four States of Orissa, Assam, Madhya Pradesh and
Andhra, one house. 4 In those states with two-house legislatures,
one is known as the legislative assembly, and the other as the legis-
lative council; in states where there is only one house, it is known
as the legislative assembly' 4 The members of the legislative
assembly are returned directly from territorial constituencies. 4
The bulk of the members of the legislative council are elected
by electoral colleges and the rest nominated by the governor.' The
normal life of the legislative assembly, unless sooner dissolved,
is five years, while the legislative council is a permanent body,
one-third of the members retiring every second year."' Where
there are two houses, the legislative assembly retains the whip
hand even in respect of ordinary legislation, the legislative coun-
cil having power only to delay the enactment of legislation for a
limited period' 8 In the case of money bills and voting upon
demands for grants the position of the legislative assembly
vis-a-vis the legislative council is similar to the relationship be-
tween the House of the People and the Council of States, the two
Houses of the Union Parliament' 9
The High Court. Each state has a High Court.' Every judge
of a High Court is appointed by the President after consultation
140. Id.artL 154(1).
141. Id.art.163(l).
142. Id.art. 164(2).
143. Id.art. 168(1).
144. Id. ar. 168(2).
145. Id. art 170(1), (2).
146. Id. art. 171(3) (one-third, municipalities, boards and other local authorities;
one-twelfth, graduates of universities or their equivalent; one-twelfth, secondary and
university instructors; one-third, legislative assemblies; one-sixth, by the central govern-
ment).
147. 7d. art. 172.
148. Id. art. 197. It must pass the legislative assembly twice in the same or subse-
quent sessions. 354 55
149. Id. art. 198. See pp. - supra.
150. Id. art. 214(1).
with the Chief Justice of India, the governor of the state and the
chief justice of the High Courte" A judge of the High Court,
who holds office until he attains the age of sixty,"' can be removed
from his position only by the President, on an address by each
House of the Union Parliament supported by a two-thirds ma-
jority, as in the case of a judge of the Supreme Court."' Each
High Court has superintendence over all courts and tribunals
throughout the territory in which it exercises jurisdiction."' Every
High Court has power in relation to its territory to issue direc-
tions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, for
the enforcement of the Fundamental Rights mentioned in part III
of the Constitution and for any other purpose."'
B. The States in PartB of the First Schedule

The constitutional machinery provided for the states in part B
of the first schedule, as described in part VII of the Constitution,
is in all important respects identical with that provided for the
part A states."' A Rajpramukh takes the place of a governor, but
the powers exercised by these two functionaries are practically
identical." The legislatures of the part B states are unicameral
except in Mysore."'
C. The States in Part C of the First Schedule

In the introductory portion of this Section, I have given a brief
sketch of the manner in which the government of the states men-
tioned in part C is conducted."'
VII
The problem of distribution of legislative powers between the
Centre and the constituent units of a federal polity is always a
matter of great difficulty. Under the Constitution of India, an
almost exhaustive enumeration of all topics of legislation, including
151. Id.art. 217(1).
152. Ibid.
153. Id.art. 217(1)(b).
154. Id. art. 227(1).
155. Id. art. 226(1).
156. Id. art. 238.
157. ld. art. 238(1).
158. Id. art. 238(7).
159. Seep. 341 supra.
May X956 ] INDIAN CONSTITUTION
taxation, has been made, these being arranged under three sepa-
rate lists in the seventh schedule to the Constitution. In list I,
known as the Union List, are enumerated no less than ninety-seven
subjects that come within the exclusive powers of the Union Parlia-
ment. In list II, called the State List, are mentioned sixty-six sub-
jects that come within the exclusive competence of the state legis-
latures. List III, called the Concurrent List, includes forty-seven
items, in respect of which both the union and state legislatures
have powers of legislation, provision being made for a union law
in the concurrent field overriding a state law in the event of a
conflict.
The Union List includes subjects such as defense; foreign af-
fairs; citizenship, including naturalization and aliens; railways,
airways, aircraft and air navigation, posts and telegraphs, tele-
phones, wireless and broadcasting; currency, coinage and legal
tender; banking; foreign and interstate trade and commerce; in-
dustries whose control by the Union is declared by Parliament to
be expedient in the public interest; census; taxes on income other
than agricultural income; customs and export duties; corporation
tax; taxes on the capital value of the assets, exclusive of agricultural
land, of individuals and companies; and taxes on the capital of
companies.
The State List includes subjects like public order, police and ad-
ministration of justice; public health and sanitation, hospitals and
dispensaries; education in general, including universities; agricul-
ture; land and land revenue; forests; water storage; taxes on agri-
cultural income; estate duty on agricultural land; taxes on the con-
sumption or sale of electricity; and taxes on the sale or purchase of
goods other than newspapers.
In the Concurrent List we find such subjects as criminal law;
criminal and civil procedure; marriage and divorce; contracts;
transfer of property; torts; bankruptcy and insolvency; trade
unions; industrial and labor disputes; price control; factories and
electricity.
Many of the subjects in the Concurrent List were put there with
the idea of building up throughout the federal union a uniform
texture of laws on important subjects like contracts, civil and crim-
inal procedure, property rights and marriage and divorce. In fact,
we had already achieved uniformity in such matters under the
British regime. Some of the great Indian Law Codes that have been
in force in the whole of British India, like the Indian Penal Code,
the Civil and Criminal Procedure Codes, the Transfer of Prop-
erty Act, the Contract Act and the Evidence Act, are magnificent
pieces of constructive legislation. The Indian States had practically
copied the various Indian law codes into their own statute books.
The inclusion of the topics dealt with by these great codes in the
Concurrent List helps to preserve and strengthen the great frame-
work of uniform laws built up under the British regime.
I may also mention that the Union Parliament is given the
residuary power to make laws with respect to any matter, includ-
ing taxation, not enumerated in the Concurrent or State List.',"
There has been criticism in some quarters in India that the allo-
cation of powers under the Constitution has resulted in over-central-
ization of authority which, in a vast country like India, cannot be
in the best interests of the country. Considerations of space prevent
me from examining this criticism fully. I do realize the danger of
excessive concentration of powers, which might produce apoplexy
at the Centre and anemia at the circumference. I shall give some
reasons to show that the argument that there is over-centralization
under the Constitution cannot be sustained. The states, even under
the present scheme of allocation of powers, have control over many
important subjects like land; education; public health; hospitals
and dispensaries; law and order; water, and agriculture. In the con-
ditions that existed in India when so many centrifugal forces threat-
ening to disrupt our national life were in operation, it was abso-
lutely necessary to strengthen the hand of the Centre by arming it
with sufficient authority to counter them.
Moreover, it is well to remember that under modern industrial
conditions it was necessary to provide for control from the Centre
of the many economic forces that operate across state lines. Many
subjects allocated to the Centre under the plan of distribution of
powers written into the new Constitution were so allocated with
the primary intent of maintaining effective control over these
forces. In the United States, the commerce clause has not only
acted as a brake upon state action calculated to impede the free
flow of commerce across state lines but has also functioned as a
source of motive power for the construction of powerful federal
instruments for controlling, in the larger interests of the country,
the manifold activities that take place in the sphere of foreign and
160. Id. art. 248.
interstate commerce.' 6 The dynamic role of the commerce clause

in integrating the economic life of the country was referred to by
Mr. Justice Murphy in American Power and Light Co. v. SEC.-62
[W] e reaffirm once more the constitutional authority resident in Con-
gress by virtue of the commerce clause to undertake to solve national
problems directly and realistically, giving due recognition to the scope
of state power. That follows from the fact that the federal
63
commerce
power is as broad as the economic needs of the nation.
The Indian Constitution provides concrete solutions for many

of the difficulties that have been experienced in the older federations
under the distribution of powers specified by their constitutions.
I shall give two examples to show how the Indian Constitution
has grappled with some of these problems. Lord Atkin's judgment
for the Privy Council in Attorney-Generalfor Canadav. Attorney-
Generalfor Ontario..4 has created the difficult situation for Canada
that, while Parliament could implement by legislation a treaty to
the extent that the treaty concerned subjects within its own legis-
lative field, it has to seek the co-operation of the provinces insofar
as the obligations arising under a treaty come within the provincial
legislative sphere."" It stands to reason that when the central
government in a federation has the responsibility in its executive
capacity to negotiate and conclude treaties with other countries, it
should be endowed with full constitutional power to implement
its treaty obligations by the enactment of suitable legislation, on
its own authority and without reference to the constituent units.
To allow the central government to be placed at the mercy of the
units in this vital matter is to create grave difficulties for it in the
conduct of international relations. Under the Indian Consti-
tution the position of the union government in this matter has been
fully safeguarded. Item 14 of the Union List, which relates to
"entering into treaties. and agreements with foreign countries and
implementing of treaties, agreements and conventions with foreign
countries,"' 66 has been buttressed by a specific provision confer-
161. See RtASAsmy, THE COMMERCE C.AUSE IN THE CONSnTUnON OF T=E UNrr
STATES (1948).
162. 329 U.S. 90 (1946).
163. Id.at 103-4.
164. [1937] A.C. 326 (P.C.).
165. See MacKenzie, Canada and the Treaty-making Power, 15 CAN. B. REv. 436
(1937); Stewart, Canada and International Labor Conventions, 32 Am. J. Isr'L L. 36
(1938).
166. ImmN CoNsr.sched. 7, list 1(14).
ring full power upon the Union Parliament to implement such

treaties, agreements and conventions on its own authority. 67
In Australia the question has arisen whether the Common-
wealth appropriation power, under which "all revenues or moneys
raised or received by the Executive Government of the Common-
wealth shall form one Consolidated Revenue Fund, to be appro-
priated for the purposes of the Commonwealth,"' 18 permits the
appropriation of Commonwealth funds to any purpose approved
by the Commonwealth Parliament, though the purpose lies outside
the purview of the subjects in respect of which the Commonwealth
is empowered to legislate, or whether it is restricted to the purposes
in regard to which power to legislate is conferred on the Common-
wealth Parliament by the Constitution. In Attorney-General for
Victoria (ex rel. Dale) v. The Commonwealth,' a majority of the
judges of the Australian High Court favored the narrower view of
the appropriation power and held the Pharmaceutical Benefits Act,
1944, invalid."' The Indian Constitution does not restrict the ap-
propriation powers of the Union and the states, since it expressly
provides that "the Union or a State may make any grants for any
public purpose, notwithstanding that the purpose is not one with
respect to which Parliament or the Legislature of the State, as the
case may be, may make laws."''
VIII
I propose here to call attention to a few of the more important
features of the financial structure erected by the new Constitution.
I may point out, in this context, that this structure in its essential
features resembles the one that had been embodied in the Govern-
ment of India Act, i935y 2
The Union List contains a list of the taxes and duties that may
be levied under the authority of the Union Parliament.7 But it
167. Id. art. 253.
168. AuTRALIA CoNsr. § 81.
169. 71 C.L.R. 237 (1945).
170. Latham, C.J., while holding that the act was invalid as in substance a public
health measure and not incidental to an appropriation, expressed the view that the Com-
monwealth appropriation power extended to the appropriation of money for any national
purpose. See United States v. Butler, 297 U.S. 1 (1936); Massachusetts v. Mellon, 262 U.S.
447 (1923).
171. INDIAN CoNsT. art. 282.
172. 26 Gao. 5, c. 2, arts. 136-60. See also INDIAN CONsr. pt. XII.
173. Id. sched. 7, list 1(82)-(92).
Alay 1956 ] INDIAN CONSTITUTION
should not be supposed that the proceeds of all these taxes and
duties will inure to the benefit of the federal exchequer alone.
Stamp duties on certain classes of documents like negotiable instru-
ments, policies of insurance and bills of lading, and excises on me-
dicinal and toilet preparations containing alcohol, opium or other
narcotic drugs, are levied by the Government of India but collected
and the proceeds retained by the states within which they are lev-
ied. 7' There are a group of duties, chief among which are estate
duties or inheritance taxes on property other than agricultural land,
and terminal taxes on goods or passengers carried by railway, sea
or air, that are levied and collected by the Government of India but
assigned to the states and distributed among them in accordance
with such principles as Parliament may formulate. 75
The arrangement that had hitherto prevailed under the Gov-
ernment of India Act, 1935, by which the proceeds of taxes on in-
come, other than agricultural income, were treated as a divisible
head of revenue to be shared between the Centre and the units,
continues under the Constitution. Under the Government of India
Act, 1935, an Order in Council based on an award given by Sir Otto
Niemeyer regulated the percentage of the income tax proceeds
assigned to the provinces, and its allocation among them.'76 Under
the Constitution, this matter is regulated by the President with the
advice of the Finance Commission."'
Union excise duties on tobacco and other goods manufactured
in India-except alcoholic beverages, Indian hemp, opium and
other narcotics, in regard to which the states have been given the
exclusive power to levy excises--are levied and collected by the
Government of India. 7" But, if Parliament so provides, there shall
be paid out of the Consolidated Fund of India to those states to
which the law imposing the duty extends, sums equivalent to the
whole or any part of the net proceeds of the duty" Those sums
are divided among the eligible states in accordance with the terms
of the act. Customs duties and corporation taxes not only are levied
174. Id. art. 268(1) (b), (2).

175. Id. art. 269.
176. 26 Gao. 5, c. 2, art. 138.
177. INDAN Co-sr. arts. 270, 280.
178. Id. sched. 7, list 1(51).
179. Id. sched. 7, list 1(84).
180. Id. art. 272.
and collected by the union government but also are at its complete
disposal.'
Among the important taxes, duties and revenues coming within
the exclusive legislative competence of the states are taxes on agri-
cultural income; taxes on lands and buildings; duties of excise on
alcoholic beverages, Indian hemp, opium and other narcotic drugs;
taxes on the consumption or sale of electricity; taxes on the sale or
purchase of goods other than newspapers; taxes on luxuries, includ-
ing entertainments, amusements and gambling; tolls; taxes on pro-
fessions; land revenue 8
The President is directed by the Constitution to constitute a
Finance Commission, consisting of a chairman and four other
members for a term of five years or less.' 3 The Commission will
make recommendations to the President on, inter alia, (a) the dis-
tribution between the Union and states of the net proceeds of taxes
that are to be, or may be, divided between them under chapter I of
part XII, and the allocation between the states of the respective
shares of such proceeds; (b) the principles that should govern the
grants-in-aid of the revenues of the states out of the consolidated
fund of India, and (c) any other matter referred to the Commission
by the President in the interests of sound finance.'
IX
The importance of ensuring that there shall be no barriers to
the free flow of commerce and to free intercourse across state lines
in the new Indian federation was fully realized by our constitution-
builders. Every fully developed federation has seen to it that there
are no impediments to free intercourse and trade among the con-
stituent units. In James v. The Commonwealth of Australia,'
Lord Wright, delivering the judgment of the Privy Council, ob-
served:
The idea starts with the admitted fact that federation in Australia was
intended (inter alia) to abolish the frontiers between the different States
and create one Australia. The conception involved freedom from cus-
toms, duties, imposts, border prohibitions and restrictions of every kind:
the people of Australia were to be free to trade with each other, and to
181. Id. sched. 7, list 1(85). This does not include income tax distribution to the
states. Id. art. 270(4) (a).
182. Id. sched. 7, list II(46)-(63).
183. Id. art. 280(1).
184. Id. art. 280(3).
185. [1936] A.C. 578 (P.C.).
M ay IE956 ] INDIAN CONSTITUTION
pass to and fro among the States, without any burden, hindrance or res-
triction based merely on the fact that they were not members of the same
State.'
The Indian Constitution provides that subject to the other pro-

visions contained in part XIII, trade, commerce and intercourse
throughout the territory of India shall be free."' Parliament has,
however, been given the power to impose such restrictions on the
freedom of trade, commerce or intercourse between one state and
another, or within any part of the territory of India, as may be re-
quired in the public interest.'
X
The Constitution can be amended by means of a bill which is
passed by each House of the Union Parliament by a majority of
the total membership of the House and by a two-thirds majority
of the members of the House present and voting and which receives
the President's assent. 9 In the case of changes in certain provisions,
the amendment has not only to be passed by both Houses of the
Union Parliament with the prescribed majorities, but it has also
to be ratified by the legislatures of not less than one-half of the
part A and B states before the amendment is presented to the
President for assent 8 In this category are included (i) provisions
on the mode of election of the President,' (2) the provisions deal-
ing with the executive powers of the Union and the states,' (3) all
the provisions which deal with the constitution and powers of the
Supreme Court 93 and the high courts in the states,9 (4) all the
provisions that govern the legislative relations between the Union
and the states,"" (5) any of the three legislative lists contained in
the seventh schedule,' (6) the representation of states in Parlia-
ment"' and (7) the machinery of amendment of the Constitu-
tion. 9
186. Id. at 630.
187. INDiAN CoNsr. art. 301.
188. Id. art. 302.
189. Id.art.368.
190. Ibid.
191. Id. arts. 54,55.
192. Id. arts. 73, 162.
193. Id.pt. V,c.IV.
194. Id. pt. VI, c. V, art. 241.
195. Id. pt. XI, c. L
196. Id. art. 368(c).
197. Id. arts. 80(2) (5), 81, 82; id. sched. 4.
198. Id. art. 368.
Section C: The Period from January 26, 1950,

to December 31, 1955
An endeavor will be made in this third Section to sketch in
broad outline the constitutional developments which have taken
place in India during the six years the constitutional machine has
been in operation. These developments will be examined in this
order: (i) constitutional amendments, (2) the impending reor-
ganization of the states of the Indian Union, (3) some of the no-
table decisions bearing upon the interpretation of the Constitution
arranged under the following headings: (a) fundamental rights,
(b) delegation of legislative powers and (c) state taxation of inter-
state sales.
I
Since the Constitution came into force on January 26, 195o, it
has been amended on four occasions. I shall here review the more
important of the changes made by these amendments.
A. The Constitution (First Amendment) Act, r951
This act was passed by the Provisional Parliament 9' and came
into force on June i8, 195i. The principal provisions affected by
this amendment were articles 15, 19 and 31. In Champakam
Dorairajanv. State of Madras"' the Madras High Court ruled that
the Madras Communal Government Order, which distributed seats
in state educational institutions according to communities in
certain proportions, offended against articles 15(1) and 29(2) of
the Constitution. Article 15(1) generally prohibited the practice
of discrimination against any citizen on grounds of religion, race,
caste, sex or place, and article 29(2) was a special provision directed
against the practice of such discrimination in the matter of admis-
sion into state-owned or state-aided educational institutions. The
Supreme Court of India in State of Madrasv. Champakam Doraira-
jan °1 upheld the decision of the Madras High Court. On behalf
of the government of Madras, support for the constitutional va-
199. INDIAN CoNsT. art. 379, provided for a Provisional Parliament, a continuation
of the Constituent Assembly, until both Houses of the Parliament could be constituted
and summoned to meet.
200. [1951] All India Reports (hereinafter cited as A.I.R.) Madras 120.
201. [1951] India Supreme Court Reports 525 (hereinafter cited as S.C.R.), 14 India
Supreme Court Journal 313 (hereinafter cited as S.CJ.).
lidity of its order was sought from article 46, which provides that
"the State shall promote with special care the educational and 2 2
economic interests of the weaker sections of the people .... 0
This was a provision contained in chapter IV of the Constitution,
headed "Directive Principles of State Policy." ' 3 However, article
37 itself declares that the provisions contained in that chapter "shall
not be enforceable by any Court" although "the principles therein
laid down are ... fundamental in the governance of the country
.... ,,,' The Supreme Court in the Champakam case rejected the
Madras government's argument on this basis.
The directive principles of the State policy, which ... are expressly
made unenforceable by a Court, cannot override the provisions found in
Part III [the provisions in the Fundamental Rights chapter] which,
notwithstanding other provisions, are expressly made enforceable by
appropriate Writs, Orders or directions under article 32. The chapter on
Fundamental Rights is sacrosanct and not liable to be abridged by any
Legislative or Executive Act or order, except to the extent provided in
the appropriate article in Part III. The directive principles of State
policy have to conform to and run as subsidiary to the Chapter of Funda-
2 05
mental Rights.
Following this ruling it was considered necessary to make an

exception to the constitutional prohibition against discrimination
so far as educational facilities for the backward classes were con-
cerned. Article 15 was amended by adding subsection (4): "Noth-
ing in this Article or in clause (2) of Article 29 shall prevent the
State from making any special provision for the advancement of
any socially and educationally backward classes of citizens or for
the Scheduled Castes and the Scheduled Tribes."' ' The object of
this provision is to arm the State with the necessary authority to
make special arrangements for the admission of pupils from the
weaker sections of the community to a state-maintained or state-
subsidized educational institution, so that such backward sections
may catch up with the more advanced classes of the community.
Article ig(i) (a) of the Constitution provides that all citizens
202. INDIAN Co-sr. art. 46.
203. See pp. 35 2 supra.
204. INDIAN CoNsr. art 37.
205. [1951] S.C.R. at 531, 14 S.C.J. at 316 (per Das, J.).
206. INDIAN CoNsr. art. 15(4), added by the Constitution (First Amendment) Act
§ 2 (1951). Part III of the Indian Constitution dealing with Fundamental Rights uses
the word "State" to include the Government and Parliament of India, the government and
legislature of each state, and all local or other authorities within the territory of India or
under the control of the Indian Government. INDIAN CoNsr. art. 12.
shall have the right to freedom of speech and expression. Clause

(2) of article 19 was originally worded as follows:
Nothing in sub-clause (a) of dause (i) shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any
law relating to, libel, slander, defamation, contempt of court or any mat-
ter which offends against decency or morality or which undermines the
security of, or tends to overthrow, the State.
By the first amendment act, clause (2) was altered to read:

Nothing in sub-clause (a) of clause (i) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such
law imposes reasonable restrictions on the exercise of the right conferred
by the said sub-clause in the interests of the security of the State, friendly
relations with foreign States, public order, decency or morality, or 2in 07
relation to contempt of court, defamation or incitement to an offence.
The changes introduced in clause 2 by the amendment are un-

doubtedly of great importance. I shall indicate here just a few of
the changes brought about in article i9 so far as it concerns
freedom of speech and expression. In the case of Romesh Thappar
v. State of Madras'°8 Mr. Justice Patanjali Sastri, delivering the
judgment of the Supreme Court, observed that
the Constitution... requires a line to be drawn in the field of public
order or tranquility marking off, more or less roughly, the boundary
between those serious and aggravated forms of public disorder which
are calculated to endanger the security of the State and the relatively
minor breaches of the peace of a purely local significance, treating for
this purpose differences in degree as if they were differences in kind ....
We are therefore of opinion that unless a law restricting freedom of
speech and expression is directed solely against the undermining of the
security of the State or the overthrow of it, such law cannot fall within
the reservation under clause (2) of Article 19, although restrictions
which it seeks to impose
209
may have been conceived generally in the inter-
ests of public order.
In view of the observations of the Supreme Court in this case, it

was considered expedient to add "public order" as one of the cate-
gories under which the legislature might put restrictions upon
freedom of speech. It must be observed, however, that the State
does not acquire a carte blancheto impose any restrictions it wishes
207. Id. art. 19(2), as amended, Constitution (First Amendment) Act § 3 (1951).
208. [1950] S.C.R. 594, 13 S.C.J. 418.
209. Id. at 601, 13 S.C.J. at 423-24.
in relation to public order because clause (2) imposes the condition

that such restrictions must be "reasonable." '10
The second ground added to clause (2) by the new amend-
ment, namely, "friendly relations with foreign States" as one of the
bases on which the State could make reasonable restrictions upon
freedom of speech and expression, has no parallel in the written
constitution of any other country. The expression "friendly rela-
tions with foreign States" might well bring about legislative re-
strictions which can prove to be a dragnet for innocent people.
Both the courts and the legislatures have a grave responsibility to
see that restrictions imposed in the name of "friendly relations be-
tween States" do not curb the freedom of the citizen to voice his
feelings on any matter affecting his country's foreign policy. In a
democratic country it is essential that the citizens have full free-
dom to express themselves on matters of foreign policy without
ithe fear that their utterances might expose them to the risk of
prosecution.
"Incitement to an offence" is another ground of restriction
newly added to clause (2) of article i9 by the constitutional amend-
ment of 1951. The Supreme Court had decided in the Romesh
Thappar case that the Constitution drew a distinction between
"security of the State" involving "serious and aggravated forms of
public order" which endangered the existence of the State itself
and mere minor or local breaches of public order. Thereafter, one
of the state high courts, that of Patna, went so far as to say that the
incitement to murder or other cognizable offenses did not under-
mine the security of the State and, hence, such incitement was not
constitutionally punishable. 1' But the Supreme Court on appeal
from this decision observed in State of Bihar v. ShailabalaDevi"'
that its decision in the Romesh Thappar case had not been under-
stood properly; that the deduction from the language there used
210. Whether the restriction imposed is "reasonable" or otherwise is, of course, a
justiciable issue for the courts. As Mr. Justice Mahajan in his opinion for the Supreme
Court in Chintamanrao v. State of Madhya Pradesh, [1950] S.C.R. 759, 13 S.C.J. 571,
put it:
'The determination by the Legislature of what constitutes a reasonable restriction is
not final or conclusive; it is subject to the supervision by this Court. In the matter
of fundamental rights, the Supreme Court watches and guards the rights guaranteed
by the Constitution and in exercising its functions it has the power to set aside an
Act of the Legislature if it is in violation of the freedoms guaranteed by the Con-
stitution."
Id. at 775, 13 S.C.J. at 574.
211. In re Bharati Press, [1951] A.I.R. Patna 12, 21 (per Sarjoo Prasad, J.).
212. [1952] S.C.R. 654, 15 S.C.J. 465.
that a person could with impunity incite through the press to mur-
der or other cognizable offense was completely wrong. 13 It was
considered at the time of the adoption of the first amendment,
which preceded the ShailabdaDevi decision, that the mention of
"incitement to an offence" as an additional ground for restricting
freedom of expression would help combat antisocial utterances of
a more serious character and, therefore, should be added to clause
(2) of article 19.
Another important amendment made by the 1951 act was to
make it possible for the State to make any law relating to "the carry-
ing on by the State or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the
exclusion, complete or partial, of citizens or otherwise." 1 " This
new provision introduced into article 19(6) was deemed neces-
sary in order that government might have the power to nationalize
any trade, business, industry or service when in the public interest
without being forced to justify the reasonableness of such action
before a court. Indeed, the occasion for this amendment was the
decision given by the Allahabad High Court in Moti Lal v. State
of UttarPradesh."' In that case petitions had been filed by certain
private operators of motor vehicles, challenging the constitutional
validity of the cancellation of previously issued permits. The court
ruled that the rights of the private operators could be affected only
if an appropriate enactment had been passed by the legislature and
such enactment was shown to be reasonable.
One of the great problems now being tackled by the various
state legislatures is large-scale agrarian reform. Its primary objec-
tive is the prevention of concentration of big blocks of lands in the
hands of a few landed proprietors, called Zamindars, by distribut-
ing them among the actual cultivators of the holdings. The con-
stitutional validity of a number of state enactments in this field was
challenged by the Zamindars on various grounds, chiefly (i) that
there was no public purpose behind the acquisition of the Zamin-
dari interests; (2) that there was a denial of equal protection of the
law in contravention of the constitutional guarantee contained in
article 14 in that the smaller Zamindars were given higher rates of
compensation on a graduated scale than the bigger ones, and (3)
that the compensation awarded was illusory and a violation of the
213. Id. at 657-60, 15 S.C.J. at 466-67.
214. INDIAN CONsr. art. 19(6), as amended, Constitution (First Amendment) Act
§ 3 (1951).
215. [1951] A.I.R. Allahabad 257.
constitutional guarantee respecting compensation of property taken

for public purposes. 1 The High Court at Patna had held that the
Bihar land legislations were unconstitutional 17 while the High
Courts at Allahabad and Nagpur had upheld the validity of similar
legislation of the Uttar Pradesh and Madhya Pradesh legislatures. 1
Appeals from these decisions were lodged in the Supreme Court.
At this stage the union government, which was deeply interested
in this important agrarian reform, sought by the Constitution
(First Amendment) Act, i95x, to introduce two new articles, 3 iA
and 3B, specifically barring litigants from challenging such legis-
lation as offending one of the fundamental rights guaranteed by
part III of the Constitution. These amendments were adopted and
became part of the Constitution. Their validity was upheld by the
Supreme Court in Sri Sankara Presad Singh Deo v. Union of
India. " Though the Zamindars had now for all practical purposes
lost their battle, they continued to press the attack. When the
appeals pending before the Supreme Court were finally heard, all
the major contentions put forward on behalf of the Zamindars to
challenge the constitutional validity of the land reform enactments
were disallowed. 0"
B. The Constitution (Second Amendment) Act, z952

By article 8i of the Constitution members of the House of the
People were to represent constituencies with an upper limit of
750,000 people and a lower limit of 500,000 people. It proved de-
sirable to permit larger constituencies, and the upper limit of
750,000 was removed by the Constitution (Second Amendment)
Act, 1952.
C. The Constitution (Third Amendment) Act, 1954

Article 369 of the Constitution gave the Union Parliament
power, during the first five years, to regulate, as if enumerated in
the concurrent list, production, trade and commerce, supply and
216. INDIAN CONsT. art. 31.
217. Kameshwar Singh v. State of Bihar, [1951] A.I.R. Patna 91; Kameshwar Singh
v. Province of Bihar, [1950] A.LR. Patna 392.
218. Raja Suryapalsingh v. Uttar Pradesh Government, [1951] A.I.R. Allahabad 674.
See Visweshwar Rao v. State of Madhya Pradesh, [1952] S.C.R. 1020, 1025, 15 S.C.J.
427, 429.
219. [1952] S.C.I. 89, 14 S.C.J. 775.
220. The Zamindari abolition cases decided by the Supreme Court are reported as
Raja Suriya Pal Singh v. State of Uttar Pradesh, [1952] S.C.R. 1056, 15 S.C.J. 446;
Visweshwar Rao v. State of Madhya Pradesh, [1952] S.C.R. 1020, 15 S.C.J. 427; State
of Bihar v. Kameshwar Singh, [1952] S.C.R. 889, 15 S.C.J. 354.
distribution of certain essential commodities, even within a state.

Because the union government considered continuance of this cen-
tral control to be necessary in the national interest, the Constitution
(Third Amendment) Act, 1954, was passed, amending entry 33
of the concurrent legislative list (list III of the seventh schedule)
to make the power permanent.
D. The Constitution (Fourth Amendment) Act, r955
The fourth amendment to the Constitution introduced very im-
portant changes in the safeguards for property rights. An attempt
is made here only to sketch broadly the changes brought about on
two or three important matters affecting property rights.
Article 31(2) of the Constitution as it stood originally pro-
vided:
No property, movable or immovable, including any interest in, or in
any company owning, any commercial or industrial undertaking, shall
be taken possession of or acquired for public purposes under any law
authorizing the taking of such possession or such acquisition, unless the
law provides for compensation for the property taken possession of or
acquired and either fixes the amount of the compensation, or specifies
the principles on which, and the manner in which, the compensation is
to be determined and given.
In the Bihar Zamindari case,"' involving the acquisition under a
Bihar state statute of the rights of the proprietors of large landed
estates as a part of a scheme of agrarian reform, the Supreme
Court, reversing the decision of the Patna High Court, upheld the
constitutionality of the bulk of the legislation. It ruled, however,
that a few minor provisions of the impugned enactment were in-
valid on the ground that they constituted a "fraud on the Constitu-
tion"22 inasmuch as they provided a compensation which was
no compensation at all and consequently amounted to confiscation
of property. But the judges deciding this case did not say that to
conform to constitutional standards compensation must be the
exact money equivalent of the property taken. As a matter of fact,
article 3(2) as it originally stood was ambiguous on the subject
of the quantum of compensation to be given. The Supreme Court,
however, in the important case of State of West Bengal v. Bela
Banerjee,2 2 3 speaking through Mr. Chief Justice Patanjali Sastri,
221. State of Bihar v. Kameshwar Singh, supra note 220.
222. Id. at 911, 15 S.C.J. at 368.
223. [1954] S.C.R. 558, 17 S.C.J. 95.
laid down the rule that the compensation to be awarded must be

"a just equivalent of what the owner has been deprived of."
While it is true that the legislature is given the discretionary power
of laying down the principles which should govern the determination
of the amount to be given to the owner for the property appropriated,
such principles must ensure that what is determined as payable must be
compensation, that is, a just equivalent of what the owner has been de-
prived of. Within the limits of this basic requirement of full indemni-
fication of the expropriated owner, the Constitution allows free play to
the legislative judgment as to what principles should guide the determi-
nation of the amount payable. Whether such principles take into ac-
count all the elements which make up the true value of the property
appropriated and exclude matters which are to be neglected, is a justici-
able issue to be adjudicated by the court.224
Now this ruling of the Supreme Court in the Bela Banerjee case
meant that unless the law provided for compensation which com-
prised the full money value or in other words the market value of
the property acquired, the law would be invalid as infringing
article 31(2) of the Constitution. The Government of the day,
deeply concerned about the implementation of its basic policy of
constructing a socialistic pattern of society as envisaged by the
directive principles of state policy contained in part IV of the Con-
stitution, thought that its socialistic program could not be brought
to fruition if the Constitution required it to pay the full market
value of the property acquired for public purposes. It held the view
that while market value as a standard of assessing compensation
for small or moderate individual properties was justifiable enough,
that principle could not be made to work when large social engi-
neering schemes were contemplated. Therefore, an amendment
to article 31(2) was proposed, barring the courts from assailing the
legislative judgment regarding compensation on the ground that
it was inadequate.12 ' The Home Minister, Mr. Govind Ballabh
Pant, was reported 6 to have observed in explaining it to the House
of the People, that it made clear "the intentions of the authors of
224. Id. at 563-64, 17 S.C.J. at 98.
225. IND kN CONsr. art. 31(2), in its amended form reads as follows: "No property
shall be compulsorily acquired or requisitioned save for a public purpose and save by
authority of a law which provides for compensation for the property so acquired or
requisitioned and either fixes the amount of compensation or specifies the principles on
which, and the manner in which, the compensation is to be determined and given; and
no such law shall be called in question in any court on the ground that the compensation
provided by that law is not adequate."
226. The Hindu, Madras, April 14, 1955, p. 7, cols. 1-2 (Dak. ed.).
STANFORD LAW REVIEW [Vol. 8: Page P26
the Constitution and to that extent relieves all the courts of the
embarrassing duty of interpreting laws contrary to their own senti-
ments because of the anomalous ambiguity of the language." The
bill, he said, "tries to make the language precise and clear. While
compensation should be paid whenever property is acquired, courts
could be approached only when the compensation was illusory or
when there had been a fraud on the Constitution." The bill would
not apply to acquisition of petty property for administrative pur-
poses, he assured the legislators, but would apply "only to cases
which come within the compass of what the Prime Minister has
called social engineering." In any social reform of "prodigious
proportions," the Home Minister continued, the Legislature was
the only constituted body which could take into account all rele-
vant factors; in determining the compensation to be paid, various
national and international factors had to be taken into considera-
tion, several of which were beyond the purview of the courts.
Further, a new clause (2A) was added to section 31.
Where a law does not provide for the transfer of the ownership or right
to possession of any property to the State or to a corporation owned or
controlled by the State, it shall not be deemed to provide for the com-
pulsory acquisition or requisitioning 2of7 property, notwithstanding that it
deprives any person of his property.
The object of this provision was to restrict the wide meaning given
by the Supreme Court to the word "deprivation" of property in
State of West Bengal v. Subodh Gopal Bose.2 8 The court had in-
cluded in that term any substantial abridgment of the right of the
owner to use or enjoy his property. Mr. Chief Justice Patanjali
Sastri observed:
No cut and dried test can be formulated as to whether in a given case the
owner is "deprived" of his property within the meaning of article 31;
each case must be decided as it arises on its own facts. Broadly speaking
it may be said that an abridgement would be so substantial as to amount
to a deprivation within the meaning of article 31, if, in effect, it with-
held the property from the possession and enjoyment of the owner, or
seriously impaired its use and enjoyment by him, or materially reduced
229
its value.
227. INDIA CoNs'r. art. 31(2) (A), added by Constitution (Fourth Amendment) Act
§ 2 (1955).
228. [1954] S.C.R. 587, 17 S.C.J. 127.
229. Id. at 618, 17 S.C.J. at 144.
Article 3 IA was amended so as to prevent any important social

or welfare legislation of the types mentioned below from being
challenged by litigants on the ground that it is inconsistent with
or takes away or abridges any of the rights conferred by article 14,
article 19 or article 31 of the Constitution." 0 Among the types of
legislation so protected are laws providing for: (a) the taking over
of the management of any property by the state for a limited period
either in the public interest or in order to secure its proper man-
agement, (b) the amalgamation of two or more corporations either
in the public interest or in order to secure the proper management
of any of the corporations, (c) the extinguishment or modifica-
tion of any rights of managing agents, secretaries and treasurers,
managing directors, directors or managers of corporations, or of
any voting rights of shareholders thereof, (d) the extinguishment
or modification of any rights accruing by virtue of any agreement,
lease or license for the purpose of searching for, or winning, any
mineral or mineral oil, or the premature termination or cancellation
of any such agreement, lease or license.
The new clause in article 3 IA permitting the state to take over
the management of any property in the public interest was a re-
action to the decision of the Supreme Court in the well-known
case of Dwarkadas Shrinivas v. Sholapur Spinning & Weaving
Co.!31 The Sholapur textile mill, which up to the time of its
closure was flourishing, was shut down by the management as a
result of serious disputes with its employees. The dosing of the
mill caused serious hardship to the workmen. Nor was the cessa-
tion of production by the mill in the public interest. The Govern-
ment of India, taking account of the national interests involved,
promulgated an ordinance (later replaced by a statute in accordance
with the Constitution) for taking over the management of the mill.
On January 9, i95o, the Government of India, acting under sec-
tion 15 of the ordinance, delegated all its powers to the government
of Bombay. One of the common stockholders of the company filed
an application under article 32 of the Constitution for a writ of
mandamus and other relief against the enforcement of the ordi-
nance. The shareholder contended, inter alia, that the legislation
230. In fact, as noted already, arts. 31A and 31B were added to the Constitution in
order to prevent Zamindari abolition laws from being held up by litigation. See p. 000
supra.
231. [1954] S.C.R. 674, 17 S.C.J. 175.
STANFORD LAW REVIEW (Vol. 8: Page 326
constituted a violation of the equal protection clause of article 14

and that it also was a deprivation of property contrary to arti-
cle 31(2). The Supreme Court in Chiranjit Lal Chowdhuri v.
Union of India2 2 rejected the petitioner's application and refused
the relief sought.
While this application was still pending in the Supreme Court,
a preferred stockholder of the company, who had been served with
a notice by the government directors making a call of fifty rupees
on each of the preferred shares but had refused to pay the call,
filed a suit in a representative capacity challenging the validity of
the ordinance and questioning the right of the directors to make
a call.233 Mr. Justice Mahajan, who delivered the leading opinion
in the Supreme Court, held that the ordinance was not merely
regulatory in character but in fact had deprived the company for
practical purposes of all the incidents of ownership by vesting
effective control in the government and leaving only a husk of title
in the company. The ordinance had debarred the company from
carrying on its business according to the terms of its charter and
had deprived the shareholders of their legal rights and privileges to
run the company with their own directors and managers. The
ordinance had in effect authorized a deprivation of the com-
pany's property without compensation and was therefore void
as a violation of the fundamental right of the company under
article 31(2)."' The consequence of this decision was that the
Government could not take over the management of a mill or other
property, however imperative the public interests involved, unless
compensation had been paid. The new clause (b) of article 3 iA(i)
enables the management of a factory or a mill to be taken over in
the public interest by the Government without the fear of its
action being challenged as contrary to article 14, article 19 or
article 31 (2) of the Constitution.
II
The map of India is being redrawn once again. On the date of
inauguration of the Constitution, there were nine part A states,
232. [1950] S.C.R. 869, 14 S.C.J. 29.
233. The suit was dismissed in the trial court. On appeal, the Bombay High Court
affirmed. Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co., [1951] A.1LR.
Bombay 86.
234. Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co., [19541 S.C.R. 674,
17 s.CJ. 175.
eight part B states and ten centrally administered part C states 3

In 1953, a new part A state, Andhr, carved out of the territory of
Madras primarily on the linguistic principle, brought the total
number of part A states to ten. This new state of Andhra com-
prised territory which had the South Indian language of Telugu
as its principal spoken language. In 1954 the part C state of Bilas-
pur was merged in the part C state of Himachal Pradesh. Taking
account of these changes, the constituent units of the federation
today are ten part A states, eight part B states and nine part C
states. These twenty-seven states, together with the territories set
out in part D of the first schedule to the Constitution, namely, the
Andaman and Nicobar Islands, make up the twenty-eight constitu-
ent units of the Indian Union. In the light of the recommenda-
tions of the State Reorganization Commission, which submitted
its report in October, 1955, the re-arrangement of state boundaries
of the Indian Union is imminent.
The State Reorganization Commission, which was appointed
on December 29, 1953, was charged by a resolution of the Govern-
ment of India with an examination "of the whole question of the
reorganization of the states of the Indian Union objectively and
dispassionately so that the welfare of the people of each constituent
unit, as well as of the nation as a whole, is promoted" and the
formulation of specific proposals toward that end. The Commis-
sion was presided over by a distinguished former judge of the
Supreme Court of India, Mr. Saiyid Fazl Ali. The other two mem-
bers of the Commission were Mr. Hriday Nath Kunzru, a widely-
respected statesman, and Mr. K. M. Panikkar, a scholar-diplomat
with wide administrative experience.
It is necessary to turn one's mind back to the historical cir-
cumstances under which the question of the reorganization of the
states had become of pressing importance in Indian life. The Indian
National Congress, while fighting for the country's independence,
had made it an important plank in its future program that after
the country had won its independence, steps should be taken to
reconstitute the provinces on a linguistic basis. Mahatma Gandhi
in an article which appeared in his weekly paper Harijanin 1948
referred to the subject in these words:
The Congress Working Committee had been discussing the question
of reconstitution of provinces on a linguistic basis. The Congress had
already adopted that principle and had declared its intention to give effect
235. See pp. 340-41 supra.
to it constitutionally as soon as they came to power, as such distribution

would be conducive to the cultural advancement of the country. But
such redistribution should not militate against the organic unity of India.
Autonomy did not and should not mean disruption, or that hereafter
provinces could go the way they chose, independent of one anothcr
and of the Centre. If each province began to look upon itself as a sepa-
rate, sovereign unit, India's independence would lose its meaning and
with it would vanish the freedom of the various units as well. 238
After independence had been won, some of the national leaders

were deeply concerned about the redrawing of the boundaries of
the states on the linguistic principle, because they thought that
such an attempt might release strong centrifugal forces which
would not be in the country's best interests. But the pressure for
the redistribution of the states primarily on the linguistic principle
was so strong, especially in the South of India, that the regrouping
of the areas on this principle (at least in the South) could not be
avoided. Moreover, the formation of Andhra in 1953, as a state
carved out on the linguistic basis from Madras, made the formation
of similar states for the other linguistic areas in the South inevitable.
That is the reason why the State Reorganization Commission has
recommended the formation of separate Karnataka, Kerala and
Madras states by grouping together the predominantly Kannada,
Malayalam and Tamil areas respectively. The formation of these
linguistic states need not be a matter of much concern as the people
of these regions, though speaking different languages (which are
all as a matter of fact allied and have-with the exception of
Tamil-a strong Sanskritic base) do inherit a common cultural
tradition. But the people of these future linguistic states should
take heed of Mahatma Gandhi's warning that the autonomy of
these regions should be harmonized with the overall unity of the
country. The unity as represented by the union of the states ought,
in the words of George Washington in his Farewell Address, "to
be considered as a main prop of your liberty, and . ..the love of
the one ought to endear to you the preservation of the other." 3 '
According to the recommendations of the State Reorganization
236. This extract from the Harijan article of Feb. 2, 1948, is taken from the cover
of the Economic Review, Oct. 15, 1955. This review is a fortnightly journal published
from New Delhi by the Economic & Political Research Department of the All India Con-
gress Committee.
237. 35 ThE WkunNis oF GEORGE WASHINGTON FROM Tim ORIGINAL MANUSCeIPT
SouRcEs, 1745-1799, at 222 (Fitzpatrick ed. 1940).
Commission, the Indian Union will consist of sixteen states, as

against the existing twenty-seven states, and three centrally admin-
istered areas-Delhi, Manipur and the Andamans. These sixteen
states are: (i) Madras, (2) Kerala, (3)Karnataka, (4)Hyderabad,
(5)Andhra, (6) Bombay, (7) Vidarbha, (8) Madhya Pradesh,
(9)Rajasthan, (io) The Punjab, (ii) Uttar Pradesh, (12) Assam,
(i3) Orissa, (i4) West Bengal, (i5) Bihar and (i6) Jammu and
Kashmir.
So far as Jammu and Kashmir is concerned, its future is
still a matter of uncertainty depending upon international factors.
The new Hyderabad state, according to the recommendations of
the Reorganization Commission, will be the residuary portion of
the old Hyderabad state from which the Maharashtra and Kannada
areas will be detached to be merged with Bombay and Karnataka
respectively. Moreover, the Commission recommended that the
residuary state of Hyderabad might unite with Andhra after the
general elections likely to be held in or about i96i, if by a two-
thirds majority the legislature38 of Hyderabad state expresses itself
in favor of such unification.!
The Commission recommended that Bombay be turned into a
composite state comprising the two linguistic areas of Maharashtra
and Gujerath, with Bombay City as its capital. But the Maharash-
tra-speaking people were insistent upon the formation of a Maha-
rashtra state, including the new Vidarbha state, having Bombay as
its capital. The union government appears to be favorable to the
formation of a full-fledged Maharashtra state provided the Maha-
rashtrians give up their claim over the City of Bombay and have
Poona as their capital. The union government feels that if Bombay
state ceases to be a composite state and the Gujerathi and Maharash-
tra portions are separated to form the linguistic states of Gujerath
and Maharashtra, Bombay City should become a centrally-admin-
istered city-state not only because of its cosmopolitan character but
also because of its uniqueness as a great commercial port and indus-
trial center. This is one of the two or three major difficult problems
to be solved in connection with the reorganization of the states of
the Indian Union. In his admirably-phrased broadcast to the nation
after the publication of the State Reorganization Commission re-
238. According to present trends, it seems likely that residuary Hyderabad may opt
instead to join Andhra in the very near future.
port, Prime Minister Jawaharlal Nehru appealed to everyone in

India to approach the question of state reorganization with dig-
nity and forbearance and in a spirit of dispassionate consideration.
This report deals with a vital and most important issue for our pres-
ent and future and therefore it deserves the most careful consideration
by all of us.... [W] e have to consider these questions from the point of
view of the unity, strength and prosperity of India.
The ultimate decision of the recommendations of this report will
naturally be taken by parliament. . . .
How then are we to proceed about this matter? Obviously,

the only right course is for us to function with dignity and in a demo-
cratic and peaceful way .... I would, therefore, earnestly appeal to
everyone in India to approach this question with dignity and forbear-
ance and in a spirit of dispassionate consideration. This is a hard test
for us and our future might well depend upon how we face it and deal
with it 3 9
A two-day conference of the chief ministers of all the states

was held in New Delhi toward the end of October, 1955, and a
unanimous decision was taken that interim governments in all
the proposed new states should be formed as a preliminary step
for the conduct of the next general elections. The following time
schedule was tentatively agreed upon by the conference to deal
with the state reorganization proposals expeditiously and effec-
tively: (i) Formal consultations with state legislatures under
article 3 of the Constitution to be completed by the middle of
February, 1956. (2) The States Reorganization Bill to be passed
by Parliament by the end of May, 1956. (3) The new states to start
functioning either on October i or240October 2, 1956, the latter
being Mahatma Gandhi's birthday.
The implementation of the recommendations of the State Re-
organization Commission will result in the elimination of the
existing classification into part A, B, C and D states and the conse-
quent abolition of the institution of Rajpramukhe'" and in the
division of the constituent units of the federal union into only two
distinct categories, namely, states and centrally-administered terri-
tories.
A. FundamentalRights
The Supreme Court of India has already done very good work
239. The Hindu, Madras, Oct. 10, 1955, p. 5, cols. 1-2 (Dak ed.).
240. See The Hindu, Madras, Oct. 25, 1955, p. 7, cols. 1-2, p. 9, col. 2 (Dak ed.).
241. See p. 340 supra.
in protecting the basic rights of individuals from encroachment

by governmental organs. For instance, in Romesh Thappar v.
State of Madras4' 2 the Court ruled that the banning by the Madras
government of the entry into its territory of a weekly paper called
Cross Roads, under the Madras Maintenance of Public Order Act,
was in contravention of the fundamental right of free expression
guaranteed by article i9(i) of the Constitution. In Brij Bhusan
v. State of Delh?"' the same court held that the prior censorship
of an English weekly by the Commissioner of Delhi acting under
the East Punjab Public Safety Act was also a violation of arti-
cle i9(i). The condition imposed by a state government under
a cinematograph act, that a licensee of a theater should exhibit at
each performance one or more government-approved films, as the
provincial government or the central government might require,
was struck down in A. M. Seshadriv. DistrictMagistrate,Tanjore.
as in violation of article i9(i). Mr. Justice Ghulam Hasan, deliv-
ering the opinion of the Court, pointed out that, as the condition
stood, there was no principle to guide the licensing authority and
that such a condition might well lead to the loss or total extinction
of the licensee's business. For instance, under this unregulated
discretionary power, the government might require the licensee to
show approved films of such great length as to exhaust all or most
of the time intended for each performance."'
In Commissioner of Hindu Religious Endowments v. Sri
LatkshmindraThirtha Swamiar 6 certain provisions of the Madras
Hindu Religious Endowments Act were held void by the Supreme
Court as contravening the rights of religious denominations to man-
age their own affairs in matters of religion, guaranteed by article 26
of the Constitution. For instance, in invalidating section 56 of the
Madras legislation, Mr. Justice Mukherjea, speaking for the Court,
observed:
It makes provision of an extremely drastic character. Power has been
given to the Commissioner to require the trustee to appoint a manager for
administration of the secular affairs of the institution and in case of de-
fault, the Commissioner can make the appointment himself. The man-
ager thus appointed though nominally a servant of the trustee, has
practically to do everything according to the directions of the Commis-
sioner and his subordinates. It is to be noted that this power can be
exercised at the mere option of the Commissioner without any justifying
242. [1950] S.C.R. 594, 13 S.C.J. 418.
243. [1950] S.C.R. 605, 13 S.C.J. 425.
244. [1955] 1 S.C.R. 686 (1954), 17 S.C.J. 842.
245. Id. at 689-90, 17 S.C.J. at 844-45.
246. [1954] S.C.R. 1005, 17 S.C.J. 335.
necessity whatsoever and no pre-requisites like mismanagement of prop-

erty or maladministration of trust funds are necessary to enable the
trustee to exercise such drastic power. It is true that the section con-
templates the appointment of a manager for administration of the secu-
lar affairs of this institution. But no rigid demarcation could be made
as we have already said between the spiritual duties of the Mahant and
his personal interest in the trust property. The effect of the section really
is that the Commissioner is at liberty at any moment he chooses to de-
prive the Mahant of his right to administer the trust property even if
there is no negligence or maladministration on his part. Such restriction
would be opposed to the provision of article 26(d) of the Constitution.
It would cripple his authority as Mahant altogether 47
and reduce his posi-
tion to that of an ordinary priest or paid servant.
Article 4 of the Constitution, which secures to every person

the equal protection of the laws, has been interpreted by the Su-
preme Court in a number of authoritative decisions. I shall briefly
discuss the facts of only one case in this context. In State of West
Bengal v. Anwar Ali Sarkar'8 the validity of certain provisions of
the West Bengal Courts Act, 195o, was attacked as infringing the
constitutional guarantee of equal protection of the laws. This act
had been enacted, as its preamble showed, "to provide for the
speedier trial of certain offences." ' 9 Section 3 of the act author-
ized the state government by notification in the official gazette to
constitute special courts, and section 4 made provision for the
appointment of special judges to such courts. Section 5(1) of the
act, the constitutionality of which was strongly assailed, provided
that "a Special Court shall try such offences or class of offences
or cases or classes of cases, as the State Government may by general
or special order in writing direct."' 'c It will be noticed that this
provision did not lay down any yardstick for the selection either
of persons or cases or offenses to be tried by the special courts. The
consequence of this arbitrary entrustment of the power to refer
cases for trial to the special courts was that discrimination as to
the court of trial could be made between persons similarly situated.
By other provisions substantial departures from the procedure
sanctioned by the Code of Criminal Procedure for trials before
ordinary tribunals were made with respect to trials before the spe-
247. Id. at 1035-36, 17 S.C.J. at 355-56.
248. [1952] S.C.R. 284, 15 S.C.J. 55.
249. West Bengal Special Courts Act, c. 10, preamble (1950).
250. id. § 5(l).
cial courts. Chief among these were the elimination of the com-
mittal procedure for sessions cases and the substitution of the pro-
cedure laid down in the Code for trial of warrant cases by a magis-
trate, trial without jury and assessors, restriction of the court's
power in granting adjournments and the elimination of a com-
plete new trial when a case was transferred from one special court
to another.
The respondents had been tried and convicted by a special court
established under the impugned act for serious offenses committed
in the course of an armed raid on a factory, and sentenced to various
terms of imprisonment. The High Court of Calcutta on appeal
set aside their convictions and ordered a retrial on the ground that
their trial under the provisions of the West Bengal Special Courts
Act had deprived them of the equal protection of the laws guar-
anteed by the Constitution. 5' The State of West Bengal thereupon
appealed the High Court decision to the Supreme Court. The
Supreme Court held the act unconstitutional in giving arbitrary
powers to the government to select which cases to refer to the spe-
cial courts, in completely ignoring the principles of classification
laid down by the Code of Criminal Procedure and in setting up a
new procedure without any attempt to particularize or classify the
offenses or cases to which it was to apply. 52
B. Delegation of Legislative Powers

The complex problem of the permissible limits of the delega-
tion of legislative power by a legislature to another authority was
considered by the Supreme Court on a request by the President of
India under article 143 for an advisory opinion. "2 Each of the
seven judges who participated in the decision wrote a long and
learned opinion, revealing a wide divergence of views on many
points. Two of the judges, Mr. Justice Patanjali Sastri2 and
Mr. Justice Sudhir Ranjan Das, 5 took a broad view of the power
251. Anwar Ali Sarkar v. State of West Bengal, [1952] A.I.R. Calcutta 150.
252. For other decisions rendered by the Supreme Court under IsDIAN CONST. art. 14,
see Ameerunnissa Begum v. Mahboob Begum, [1953] S.C.R. 404, 16 S.C.J. 61; State of
Bombay v. F. N. Balsara, [1951] S.C.R. 682, 14 S.C.J. 478; Chiranjit Lal Chowdhuri v.
Union of India, [1950] S.C.R. 869, 14 S.C.J. 29.
253. In re Delhi Laws Act, [1951] S.C.R. 747, 14 S.C.J. 527. See Ramaswamy, The
Supreme Court of India, 2 AN UML L. Rnv. (Univ. of W. Austr.) 215, 230-36 (1950).
254. In re Delhi Laws Act, supra note 253 at 853, 14 S.C.J. at 583.
255. Id. at 1010, 14 S.C.J. at 668.
of a legislature to delegate its own powers. Provided that the legis-

lature keeps within the ambit of the power granted to it by the
Constitution, short of complete abdication or effacement of its
own legislative power, there is, according to these judges, no quali-
tative or quantitative limit to the power that may be delegated.
Mr. Chief Justice Kania 6 and Mr. Justice Mahajan.. 7 in their
separate opinions sought to draw a distinction between essential
legislative power, which may not be delegated, and subordinate
powers like the framing of regulations or ancillary rules to carry
out the purposes of legislation, which may be constitutionally
delegated.
This distinction does not appear to me to be a sound one. Every
delegation of power by the legislature to another authority is a
delegation of legislative power and nothing else. As Mr. Justice
Evatt in Victoria Stevedoring and General Contracting Co. v.
Dignan"' has well observed:
In my opinion every grant by the Commonwealth Parliament of author-
ity to make rules and regulations, whether the grantee is the Executive
Government 259
or some other authority, is itself a grant of legislative
power ....
Moreover, the nature of the power delegated cannot vary with

the breadth of the grant made. It seems to me, therefore, that so
long as a legislature retains intact its authority to recall the powers
which it has delegated to another authority, and so long as it does
not create a parallel legislature and endow it with its own power
to legislate (this would doubtless constitute an abdication of its
own power) there can be no limit to the qualitative or quantitative
delegation of powers by a legislature to another authority in which
it has confidence.
C. State Taxation of Interstate Sales

The constitution-makers in India wanted freedom of movement
of commerce across state lines in order to foster the economic well-
being of the country. They accordingly made several provisions
in the Constitution towards this end, chief among which were
256. Id. at 755, 14 S.C.J. at 531.
257. Id. at 886, 14 S.C.J. at 601.
258. [1931] 46 C.L.R. 73 (Austr.).
259. Id. at 119,
articles 301 to 304 and article 286. Article 286(I) and (2) read as
follows:
(i) No law of a State shall impose, or authorize the imposition of, a
tax on the sale or purchase of goods where such sale or purchase takes
Place-
(a) outside the State; or
(b) in the course of the import of the goods into, or export of the
goods out of, the territory of India.
Explanation-For the purposes of sub-clause (a), a sale or purchase
shall be deemed to have taken place in the State in which the goods have
actually been delivered as a direct result of such sale or purchase for the
purpose of consumption in that State, notwithstanding the fact that un-
der the general law relating to sale of goods the property in the goods
has by reason of such sale or purchase passed in another State.
(2) Except insofar as Parliament may by law otherwise provide, no
law of a State shall impose, or authorize the imposition of, a tax on the
sale or purchase of any goods where such sale or purchase takes place in
the course of inter-State trade or commerce: ... 260
In State of Bombay v. United Motors, Ltd."' the Supreme

Court, interpreting these provisions, held by a majority that
article 286(i) (a) and the Explanation, read in the light of arti-
cles 301 and 304,"6' prohibited the taxation of sales or purchases
involving interstate elements by all states except the state in which
the goods were actually delivered for the purpose of consumption.
The Supreme Court went on to hold that clause (2) of article 2-86
did not affect the power of the state in which the delivery of goods
was made to tax sales or purchases of the kind specified in the
Explanation, the effect of which was to convert such interstate
transactions into intrastate transactions and to take them out of the
purview of clause (2).
260. INsoAN CONsr. art. 286(1), (2).
261. [1953] S.C.R. 1069, 16 S.C.J. 373.
262. INDiA Cosrsr. art. 301, reads: "Subject to the other provisions of this Part
[Trade, Commerce and Intercourse within the Territory of India], trade, commerce and
intercourse throughout the territory of India shall be free."
IsNitA Corsr. art. 304, reads: "Notwithstanding anything in article 301 or article
303, [no discrimination between the states by acts of the Parliament or state legislatures
unless there is a scarcity of goods] the Legislature of a State may by law-(a) impose on
goods imported from other States any tax to which similar goods manufactured or pro-
duced in that State are subject, so, however, as not to discriminate between goods so
imported and goods so manufactured or produced; and (b) impose such reasonable re-
strictions on the freedom of trade, commerce, or intercourse with or within that State as
may be required in the public interest: Provided that no Bill or amendment for the purposes
of clause (b) shall be introduced or moved in the Legislature of a State without the previ-
ous sanction of the President."
The rule embodied in Explanation to article 286(I) (a) is, I

venture to say, a salutary provision; if an interstate sale escaped
taxation both in the state of origin of the goods and in the state of
delivery of the goods, then a purely local sale of a similar article
would have to bear the burden of a tax which an interstate sale
would escape altogether. The concept of the freedom of movement
of interstate commerce involves the idea that such commerce
should not be subjected to multiple tax burdens-not that inter-
state commerce
268
should enjoy a bounty at the expense of intrastate
commerce.
In Bengal Immunity Co. v. State of Bihar..5 the full bench of
the Supreme Court, by a majority of four to three, overruled the
United Motors case and held that until Parliament has lifted the
ban imposed by clause (2) of article 286, no state has the right to
impose a tax on goods sold or purchased in the course of inter-
state trade or commerce. The majority of the Court, speaking
through Mr. Justice S. R. Das,"6 ' took the view that the Explana-
tion to clause (i) (a) could not legitimately be extended to clause
(2) either as an explanation or as a proviso thereto or read as cur-
tailing or limiting the ambit of clause (2). Personally, I think that
the specific provision made in the Explanation to article 286(I) (a)
must be regarded as qualifying the operation of clause (2); there-
fore, the earlier decision of the Court in the United Motors case
was the correct one.
IV
The worth of a constitution lies in its capacity to subserve human
needs and foster human happiness on the widest scale possible.
Judged by this criterion, the new Constitution of India has given
a good account of itself during the six years it has been in operation.
It has shown a power of adaptation and flexibility which is a
standing tribute to the wisdom of its creators. Our most important
263. See, for instance, the observations of Mr. Justice Stone in McGoldrick v. Benind-
White Coal Co., 309 U.S. 33, 40-50 (1940). A New York city tax levied on purchases of
coal, measured by the sales price and collected from the seller, was sustained as not in-
fringing the commerce clause, although the coal came from Pennsylvania pursuant to
contracts of sale made in New York between representatives of the Pennsylvania coal com-
pany and the New York buyers.
264. [1955] A.I.R. Supreme Court 661, [1955] Supreme Court Appeals 1140.
265. The opinion of Acting Chief Justice Das was on behalf of himself and his two
colleagues, Mr. Justice Vivian Bose and Mr. Justice Imam. Mr. Justice Bhagwati wrote a
separate concurring opinion in the reasoning and conclusions reached by the majority
opinion. Justices Jugannadhadas, Venkatarama Ayyar and Sinha dissented, being in favor
of maintaining the view expressed by the court in the United Motors case.
May 1956] INDIAN CONSTITUTION 387
problem today is to increase the productive capacity of the country

and to make possible decent standards of life for the common folk.
The average Indian is a hard-working, freedom-loving and warm-
hearted individual. Unfortunately his present economic position
is very unsatisfactory. All our energies must therefore be bent
toward securing comfortable living conditions for him as quickly
as possible. Success in this high endeavor would repay a part, at
least, of the immense debt we owe to the greatest man India has
produced after Lord Buddha, Mahatma Gandhi, who dedicated his
matchless life to the service of the poor, the lowly and the forlorn.
May this Constitution continue to serve successive generations of
Indians as a resilient framework within which they may work out
in peace their multifarious problems by orderly and democratic
processes.

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The constitution of a country is a product of its past history

Section A: Survey of Indian Constitutional Developments

English merchants incorporating them into "one body corporate

for the administration of the Company's Indian domains. The

legislature. An effort was made by the Government of India Act,

two wings of government, although joint responsibility is at the

B. The Government of India Act, 1935

The Government of India Act, 1935, sought to establish, by a

The ruler of a state could signify his acceptance of the feder-

person who in his judgment was most likely to command a stable

autonomy under the Government of India Act, 1935, and closes

Centre had no prospects of long survival. The Constituent As-

B. India's Relationship with the British Commonwealth

ternal relations. All the high functions associated with a sovereign

Section B: The Constitution of the Indian Republic

In five regions of the country there were clusters of Indian

Constitution." These seven units-also called states under the Con-

If the problem of evolving order out of the crazy quilt of juris-

be abolished once and for all." The consciousness had slowly

tralia, as an accurate statement of its constitutional features. He

Parliament may provide in respect of any state, the government

machinery are provisions that any prudent constitution-maker

grounds as a judge of the Supreme Court of India." The object

B. The Union and Its Territory

ten states included in part C of the first schedule." The territories

(I) At the effective date of the Constitution of India, every

In my work on FundamentalRights, published in 19465 1 made

working of the American Bill of Rights and to the position in the

Anybody who has made a dispassionate study of the working

ment, is valuable at least as a first barricade of defense against in-

The Code of Fundamental Rights embodied in articles i2 to 35

B. Directive Principlesof State Policy

B. The Union Legislature

The Constitution provides that the Council of States shall con-

in the form in which it was passed by the House of the People 2

case involves a substantial question of law as to the interpretation

,power of the state is vested in him to exercise either directly or

B. The States in PartB of the First Schedule

C. The States in Part C of the First Schedule

interstate commerce.' 6 The dynamic role of the commerce clause

The Indian Constitution provides concrete solutions for many

ring full power upon the Union Parliament to implement such

174. Id. art. 268(1) (b), (2).

The Indian Constitution provides that subject to the other pro-

Section C: The Period from January 26, 1950,

Following this ruling it was considered necessary to make an

shall have the right to freedom of speech and expression. Clause

By the first amendment act, clause (2) was altered to read:

The changes introduced in clause 2 by the amendment are un-

In view of the observations of the Supreme Court in this case, it

in relation to public order because clause (2) imposes the condition

constitutional guarantee respecting compensation of property taken