BOOK REVIEWS

THE CONSTITUTION OF INDIA (2000). By Subhash C. Jain. Taxmann Allied

Services (P) Ltd., New Delhi. Price Rs. 2000.

THE VOLUME under review is, in the first place, a commemorative volume
on the occasion of the golden jubilee of the Constitution of India. India gained
independence on August 15,1947, and, therefore, soon we shall be celebrating
the 54th anniversary of our independence. The Constituent Assembly was set
up in 1946 under the Cabinet Mission Plan. After a hard labour of three years,
the Constituent Assembly finalised the text of the Constitution of India by
November, 1949. Article 394 and a few other articles came into force on
November 26, 1949, the day the President of the Constituent Assembly, Dr.
Rajendra Prasad, signed the document. The bulk of the Constitution came into
force with effect from January 26, 1950. Thus, the Constitution has completed
fifty years of its life on January 25, 2000. The volume under review has been
released as a commemoration volume on this happy and auspicious occasion.
During the period of fifty years, the Constitution has seen a number of
amendments. Great constitutional battles have been fought on the interpretation
of many of the provisions of the Constitution, the most notable of which is
represented by the Kesavananda case1 where the Supreme Court has, in one
of its most creative streaks, enunciated the doctrine of basic features of the
Constitution.2 It should also not be forgotten that during this period, the then
ruling party made the most abominable attempt through the 39th and the 42nd
amendments to the Constitution to alter the whole tenor of the Constitution to
perpetuate itself in power.3 In the political context, the Supreme Court has
made the greatest contribution to the cause of constitutionalism in India by
enunciating the doctrine of 'basic features' of the Constitution i.e. such features
as are non-amendable by following the procedure laid down in article 368 for
the amendment of the Constitution. The Supreme Court has thus been able to
protect the core of the Constitution against the misdeeds of power hungry
politicians who may have otherwise changed the Constitution out of recognition
to serve their selfish ends. Today the politicians of all hues are crying hoarse

1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. See also, infra note 12.
2. Jain, Indian Constitutional Law chapter 34.
3. See, Jain, op. cit. 885, 909, 910-923.

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that the 'basic features' of the Constitution must not be tampered with, but the
fact remains that not long ago, most of these politicians were taking a vow to
change the Constitution lock, stock and barrel. During the Congress regime,
after the famous Golaknath case4, the following clause was added to article
368 by the 24th amendment in 1971 :
Article 368(3): Nothing in article 13 shall apply to any amendment
made under this article.
Through this amendment the government of the day, or rather the party
having majority in Parliament, claimed unlimited power to amend any feature
of the Constitution.
But even this amendment was not regarded as sufficient. In the wake of
the Kesavananda case, under the Indira Gandhi Government, the 42 nd
amendment was passed in 1976, which added two more clauses to article 368,
viz-:
Article 368[4]: No amendment of this Constitution (including the
provisions of Part III) made or purporting to have been made under
this article... shall be called in question in any Court on any ground.
Article 368[5]: For the removal of doubts, it is hereby declared that
there shall be no limitation whatever on the constituent power of
Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.
The ruling party made its intentions crystal clear through these
amendments. The party claimed complete dominium over the Constitution. It
claimed the right to amend any part of the Constitution whether 'basic' or not.
It is another matter that under the impact of the Kesavananda ruling, clauses
(3), (4) & (5) of article 368 remained a dead letter. But today the same political
party, while in opposition, swears that it will not permit any amendments to be
made to the Constitution. Will it be wrong to say, in the face of these facts, that
political hypocrisy knows no bounds in India? In this context, one can only
applaud the courageous and creative role played by the Supreme Court of
India in stalling mutilation of the Constitution at the hands of the politicians.
The Constitution of India is a mammoth document. It has 395 articles
arranged in 22 parts. To begin with, the Constitution had eight schedules. It
now has ten schedules. The ninth schedule was added to the Constitution by
the 1st amendment of the Constitution in 1951, i.e., within one year of the
inauguration of the Constitution. The 10th schedule was added in 1985 and
contains what is popularly known as the anti-defection law.

4. Golak Nath, EC. v. State of Punjab, AIR 1967 SC 1643.

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476 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42: 2-4

Although we say that the Constitution has completed fifty years of its life,
the fact, however, remains that the Constitution today is not in the same pristine
form in which it was originally promulgated in 1949-1950. As stated above,
over a period of nearly fifty years, 78 amendments have been made to the
Constitution. So long as the Congress party was in office with its huge majority
in both the Houses of Parliament, it merrily made amendments to the
Constitution to suit its own socio-economic programmes. The Constitution
was treated more as the party property rather than as the national heritage. The
two blackest amendments made to the Constitution were the 39th and the 42nd
amendments undertaken by the Indira Gandhi government which sought to
change the whole scheme of checks and balances propounded in the original
Constitution.5 It was a stroke of good luck for the country that the Constitution
was ultimately saved from being permanently scarred by these two amendments.
The 39th amendment was voided by the Supreme Court in 1975 in Indira Nehru
Gandhi v. Raj Narain6 by applying the theory of "basic features"7, as stated
above. And most of the 42nd amendment was repealed by the 44th amendment
undertaken by the Janta Dal government headed by Morarji Desai, which took
office after the ignominious defeat of the Indira Gandhi government in 1977
after the enactment of the 42nd amendment.8
The volume under review can be regarded in a way as a source book by a
student of constitutional law. The book is divided into five divisions. Division
one reproduces the text of the Constitution as amended up to 1995 by the
seventy eight amendments. Division two contains inter alia extracts from some
historic speeches made by the Constitution makers in the Constituent Assembly.
The most notable of these are extracts from Dr. Ambedkar's two historical
speeches made by him in the Constituent Assembly: one speech made by him
on November 4, 1948, while moving the Draft Constitution in the Constituent
Assembly; the other speech made by him on the occasion of the adoption of
the Constitution by the Constituent Assembly on November, 25, 1949. One
glaring omission, from the point of view of this reviewer, is the historical
speech made by Jawahar Lai Nehru while moving the Objectives Resolution
in the Constituent Assembly in January, 1947, almost at the beginning of the
labours of the Constituent Assembly. This speech may be regarded as the source
of the directive principles of state policy.9
Division three headed as "Development of Constitution of India" consists
of year-wise list of constitutional amendments, article-wise list of constitutional

5. See, supra note 3.

6. AIR 1975 SC 2299. For detailed comments on the 39th amendment and the Supreme Court
case mentioned here, see, supra note 2 at 886-887.
7. Supra note 2; see also, infra.
8. For a detailed discussion on the provisions of the 42nd and 44th amendments, see, supra note 2
at 910-923, 924-930.
9. Arts. 36-51, the Constitution of India.

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amendments and a review of these various amendments. Division five contains

the text of the constitutional amendments. These four divisions viz., I to III and
V contain the important source material for a study of the Indian Constitution.
Dr. S.C. Jain's scholarly contribution is put in division four under the title
"The Constitution of India - Select Issues and Perceptions". In this division,
Dr. Jain comments on some select topics. It is a solid contribution by Dr. Jain
running into 174 pages in which he has offered his comments on a miscellany
of topics related to the Constitution. It is this part to which this reviewer wants
to pay special attention as many worthwhile issues have been commented upon,
and quite a few ideas projected, by the author.
Dr. S.C. Jain rightly disavows any intention of writing a commentary on
the Indian Constitution10, as there are commentaries galore on the Constitution.
In any case, such a commentary would be out of place in a work of this kind.
Therefore, he has rightly chosen the strategy of commenting on some problems
and issues arising under the Indian Constitution and some aspects of the Indian
constitutional law as it has developed since 1950. In addition, he has also given
his views on the future perspective of the Constitution. It may be noted that the
author has selected such issues as he thinks to be of interest and importance11,
although, one can say that he has left out some issues of great constitutional
significance in the contemporary Indian scenario.

II

Commenting on the Kesavananda case12, the author observes 13 :

While for the present, the issue regarding unamendability of basic
features of the Constitution has been settled, and many issues have
been put to rest, no objective criteria have been indicated or articulated
in the Keshvanandas case to enable Legislatures to determine what
constitutes basic features or non-essential part of the Constitution.
He then briefly refers to certain adverse comments which have been made
on the doctrine of 'basic features' by some commentators, but beyond these
remarks which the author has made in the introduction, he has not delved into
this matter any further. Therefore, a few comments on this aspect may be in
order.
It was a conscious decision on the part of the Supreme Court to read
implied limitations on the amending power in order to preserve the basic, core,

10. Dr. S.C. Jain, The Constitution of India - Select Issues and perceptions 750 (2000).
11. Ibid.
12. Kesavananda Bharativ. State ofKerala, AIR 1973 SC 1461. See, supra note 2 at 883-886 and
888-892.
13. Supra note 10 at 741.

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constitutional values against the onslaught of a transient majority in Parliament.

In Kesavananda, several judges felt convinced that certain values and ideals
embedded in the Constitution should be preserved, and not destroyed, by any
process of constitutional amendment. The Constitution deriving its strength
and sanction from the national consensus14 should not be amendable merely
by a 2/3 vote in Parliament when the truth is that 2/3 of the Lok Sabha does not
represent a very broad national consensus as not more than 46% voters cast
their votes for the House, Rajya Sabha has no popular mandate whatsoever,
and the ruling party never secures a majority of the vote polled.
The author rightly points out that no objective criteria have been indicated
by the Supreme Court in Kesavananda to enable the legislatures to determine
what constitutes basic features or 'non-essential' part of the Constitution.
However, it needs to be pointed out that, in course of time, since Kesvananda,
in a number of decisions, the Supreme Court has identified several 'basic'
features of the Constitution, such as, inter alia, secularism15, judicial review16,
democracy17, federalism18, rule of law19, right to equality20, parliamentary
system21. In course of time it is hoped a few more features will be added to this
list. A very strong candidate for the honour of being included in this list is the
right to life, in view of its great contemporary significance in India after the
creative judicial interpretation of article 21 beginning from Maneka Gandhi
onwards.22
A doubt has been raised from time to time by the author as well as by a
few other scholars "whether as a matter of policy there should be absolute
prohibition against amending any particular part of the Constitution".23 In the
view of this reviewer, it does not seem correct to think that an absolute embargo
has been placed on any amendment to the basic features of the Constitution.
Certainly, an amendment seeking to erode a basic feature is prohibited. But an
amendment seeking to promote, strengthen and enlarge a basic feature is not
prohibited, but would be welcome. For example, any constitutional amendment
devolving more powers on the states would not be regarded as unconstitutional

14. It has been declared in the preamble to the Constitution "We, the people of India...in our
Constituent Assembly... do hereby adopt, enact and give to ourselves this Constitution."
15. S.R. Bommai v. Union of India, AIR 1994 SC 1918.
16. Minerva Mills v. Union of India, MR 1980 SC 1789; L. Chandra Kumarv. Union ofIndia, AIR
1997 SC 1125.
17. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 229. In S.S Bola v. B.D. Sardine, AIR 1997
SC at 3167, the Supreme Court has observed: "judicial review, therefore, is an integral part of the
Constitution as its basic structure."
18. Shri Kumar v. Union of India, (1992) 2SCC 428.
19. Supra note 17.
20. Ibid.
21. Supra note 1 at 1461, 1535, 1603, 1628 and 1860.
22. For comments on Maneka Gandhi v. Union of India, AIR 1978 SC 597, see, supra note 2 at
700-702.
23. Supra note 10 at 742.

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2000] BOOK REVIEWS 479

because it seeks to promote federalism in the country which is a basic feature

of the Constitution. Similarly, an amendment seeking to strengthen secularism
or democracy or parliamentary system would be welcome and would not be
regarded as unconstitutional. The problem will arise only when an amendment
seeks to erode these basic values. Thus, perhaps, an amendment of the
Constitution seeking to promote a unitary system in the country, or an
amendment seeking to curtail judicial review, may fall foul of the Supreme
Court.
Further, this reviewer is a firm believer in the doctrine of non amendablity
of the 'basic' features of the Constitution for he feels that had it not been for
this doctrine, the ruling party, on the basis of its brute majority in the two
houses of Parliament, would have made some drastic changes in the Constitution
to suit its political convenience. The answer to this question is given by the
author himself when he states: "Thus some of the amendments in the
Constitution did give rise to the uncomfortable feeling of subversion of
constitutional objectives for promoting unrelated agenda."24
The political parties do not seem to appreciate that the Constitution is not
a party manifesto which can be amended by the party at will to suit its own
convenience. The Constitution is a national heritage and, therefore, it ought to
be amended only when there is broad national consensus in favour of a specific
constitutional amendment. In the U.S.A., during the last over 200 years, the
Constitution has survived with only 26 amendments.25 Australia has survived
for more than one hundred years with a very few constitutional amendments.
The reason is that in both these countries, the procedure to amend the
Constitution is such that no amendment can be effectuated without a broad
national consensus. The record of the political parties in India so far has been
not to tailor their programme according to the demands of the Constitution,
but to tailor and bend the Constitution according to the exigencies of the party
programme. This is an unfortunate approach which can be characterized as
against the doctrine of constitutionalism.
The basic purpose of the Constitution is to control power, legislative as
well as executive. This basic idea is expressed by the term 'constitutionalism' .26
There are certain things which the government cannot do, or can do only in a
particular way. But the political parties in India are not prepared to accept such
a discipline. Every one wants to bend the Constitution to its own whims and
fancies. In such an environment, the doctrine of 'basic features' has proved to
be a shield to protect and preserve certain fundamental constitutional values.

24. Id. at 743.

25. For procedure to amend the U.S. Constitution, see, Corwin, The Constitution and What it Means
Today 219-222.
26. Supra note 2 at 3-5.

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The fact that the U.S. Supreme Court has rejected any such doctrine27, is
no argument to reject it in India as well for the very simple reason that the
U.S.A. does not need any such doctrine because there the process of
constitutional amendment is inherently very rigid as is demonstrated by the
few constitutional amendments made so far. Whatever adjustments have been
made in the U.S. Constitution over period of time have been made through the
process of constitutional interpretation and evolution of constitutional
practices.28 On the other hand, in India, such a doctrine is absolutely essential
because drastic constitutional amendments can be made by a party having
majority in the two houses of Parliament without bothering to evolve a national
consensus. After all, the infamous 39th and 42nd amendments were made by the
Congress party single handedly after putting most of the members of the
opposition parties behind bars in the name of the emergency.29 This, however,
needs to be emphasized that the efficacy of this doctrine depends on how
independent, fearless and creative the judiciary really is. The same doctrine
will be meaningless in the hands of a pliable, submissive and passive judiciary.
There is one more point which needs some comment. The author in the
above quotation uses the term 'non-essential' part of the Constitution in
juxtaposition to the term 'basic' features of the Constitution. In the opinion of
this reviewer, the use of the term 'non-essential' is rather unfortunate for it
does not seem right to say that what is not 'basic' is 'non-essential'. Calling a
feature of the Constitution as 'basic' only means that it is non amendable by
following the procedure laid down in article 368 for amending the Constitution.
There are a number of features which do not fall within this category, that is,
they are amendable, but because of this characteristic, they cannot be
characterised as 'non-essential'. For example, how many states will there be
in the Indian federation? How many members will a state legislature have?
Adult suffrage, election commission, and a host of other constitutional
provisions, are not 'non-essential' though they are not yet characterised as
'basic' features.

Ill

The author fleetingly refers to the Supreme Court's role in widening the
scope of fundamental rights in one sentence: "The Supreme Court has been
widening the scope of Fundamental Rights in several ways by judicial
interpretation".30 The author has not said anything more on this fascinating

27. See Rajiv Dhawan, "The Basic Structure Doctrine - A Footnote Comment" Indian Constitution:
Trends and Issues, 164, supra note 2 at 742.
28. Supra note 2, chapter 33 and 34.
29. For discussion on the 39th amendment, see, supra note 2 at 885-887; for discussion on the 42nd
amendment, see, supra note 2 at 910-923; for discussion of emergency in India, see, supra note 2 in
chapter 13.
30. Supra note 10 at 742.

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development. Therefore, this reviewer takes this opportunity to say a few words
on this creative role of the Supreme Court. The court has defined its own role
in the area of fundamental rights as follows: "The attempt of the Court should
be to expand the reach and ambit of the Fundamental Rights rather than to
attenuate their meaning and content by a process of judicial construction."31
Thus, the court has acknowledged that it will play a law-creative role in
this area. The court has accordingly given a broad interpretation to certain
fundamental rights. To go further, the court has ruled that in order to treat a
right as a fundamental right, it is not necessary that it should be expressly
stated in the Constitution as a fundamental right. So, a number of rights can be
implied from the existing expressly stated fundamental rights in the Constitution
in the light of developing political, social and economic changes in the country.
While several fundamental rights, such as article 14 and article 19 have been
benefited from this liberal judicial approach, the biggest beneficiary of them
all has been article 21 which has spawned a number of rights, e.g. right to
privacy, right to education, right to clean environment, right to medical services
etc.32 The endeavour of the Supreme Court in this regard is really commendable.
These newly emerging rights were not all in the contemplation of the
Constitution-makers, but, in the contemporary context, these rights have
assumed great significance. The author is correct in suggesting that left to the
legislature, it would never have created any such right. For example, there
exist a number of environmental laws in the statute book but the bureaucracy
never bothered to implement them properly. The political executive is also not
serious to implement these laws because of the pressure of vested interests. It
is only after the Supreme Court implied the right to cleaner environment out of
article 21, that the court has somewhat forced the pace of enforcement of
environmental laws.

IV
The author seems to commend the idea of the Judicial Commission33. But
he has not discussed the matter in depth beyond taking note of the Law
Commission's report. The Law Commission has advocated the setting up of
such a commission in its 121st report34. This report was issued in 1987 when
31. Pathumma v. State ofKerela, AIR 1978 SC 771.
32. See e.g., Unni Krishnan v. State ofAndhra Pradesh, AIR 1993 SC 2178; Olga Tellis v. Bombay
Municipal Council, AIR 1986 SC 180; Vishaka v. State of Rajasthan, AIR 1997 SC 3001; A.P. Pollution
Control Board v. M.V Nayudh, AIR 1999 SC 812.
33. Supra note 10 at 741.
34. The Law Commission has suggested the setting up of a National Judicial Service Commission.
But the Law Commission has not worked out its composition. On this point, the Law Commission
says: "Composition and functions of such a National Judicial Service Commission will have to be
worked out in meticulous detail". Tentatively the Law Commission suggests the following composition:
Chief Justice of India (Chairman); three senior-most judges of the Supreme Court; retiring Chief Justice
of India; three Chief Justices of the high courts according to their seniority; minister of law and justice,
Government of India; Attorney General of India, and an outstanding law academic.

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the executive wielded overriding powers in the matter of selection and

appointment of judges. It was primarily to dilute the executive power that the
Law Commission mooted the idea of the Judicial Commission35. The rationale
underlying the report has now been overtaken by the subsequent events, viz.,
the Supreme Court's decision in the Supreme Court Advocate-on-Record
Association v. Union of India36 and In Re: Presidential Reference31. After these
two cases, the effective power to appoint Supreme Court and high court judges
has come to vest in the Chief Justice of India and a collegium of Supreme
Court judges. In the appointment of a high court judge, the chief justice of the
high court is invariably consulted.
Some people advocate the idea of such a commission, as they do not like
the present day procedure of making judicial appointments to the Supreme
Court and the high courts where the executive plays no effective role in the
matter of appointment of judges. They want that the executive should have
some say in the matter. This reviewer does not feel very enthusiastic for such
a commission in view of the fact that, after the Supreme Court cases mentioned
above, a de facto Judicial Commission has already come into existence. To
this reviewer, the basic question to pose is: 'What will ensure that the judiciary
in India be strong, independent and immune from political pressures?' If a
commission were to be set up in India, great care will have to be taken that it
does not become a political body. The protagonists of Judicial Commission
only refer to what happens in Britain or Canada or the U.S.A. In Britain, the
Lord Chancellor is both the highest judge as well as a cabinet minister. The
system is anomalous but subsists because of its historical pedigree.38 Such a
system cannot be copied in India.
In the U.S.A., the nominations made by the President to the US Supreme
Court are very closely vetted by the Senate. Each country adopts a system
which it thinks to be the best. It is not necessary for us to follow a system

35. See, the 41st report of the Law Commission of India. Criticizing the system prevailing in 1987,
the Law Commission observes: "The present model ...confers overriding powers on the executive in
the matter of selection and appointment of judges and in dealing with the judiciary. The constitutional
mandate was to separate executive and judiciary in all its ramifications. The Constitution aims at
ensuring independence of Judiciary, when translated in action, independence from executive". It was,
therefore, as a hedge against executive interference with the judiciary that the Law Commission mooted
the idea of the Judicial Commission. It may not be wrong to say that the 121st report of the Law
Commission played a significant role in the Supreme Court decision in Advocate-on-Record case in
1994.
36. AIR 1994 SC 268.
37. AIR 1999 SC 1.
38. De Smith describes the office of the Lord Chancellor thus: "The Lord Chancellor is a Minister
as well as head of the Judiciary and an active member of the House of Lords in its legislative capacity".
See, De Smith, Constitutional and Administrative Law 37. Thus, the Lord Chancellor exercises all the
three functions - executive, legislative and the judicial which is a complete negation of the principle of
separation of powers. There is no need or justification to replicate any such system in India.

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merely because it prevails in any other country. India has its own peculiarities.
In India, everything, including the bureaucracy has been politicised. At present,
merit is at a discount in all spheres. It is, therefore, necessary that noting is
done which even has a remote chance of politicising the judiciary. In the view
of this reviewer, the present system to appoint .the Supreme Court and high
court judges is the best suited to India as the power to appoint judges is free
from political considerations or pressures. Politics in every sphere is the bane
of the present day Indian life. Let us at least keep the judiciary free from this
malaise.
In chapter XIX39, the author discusses the question of removal of a Supreme
Court judge. Referring to the Justice Ramaswami's episode where in spite of
the adverse report of the enquiry committee headed by Justice Sawant of the
Supreme Court, Lok Sabha failed to pass the necessary resolution to remove
the judge from office.40 This was because of the neutrality of the Congress
party in the Lok Sabha due to some patrician considerations. This was the
triumph of politics and expediency over morality and rectitude. This reviewer
feels that the Congress party failed to uphold the highest standard of judicial
probity. Arising from this episode, a suggestion has been made that the report
of the inquiry committee be made binding on both Parliament and the President.
The author disagrees with the suggestion with the following comment41:
While parliamentary democracy has its pitfalls, we are faced with
the dilemma whether everything be stated in the black letter law of
the Constitution or whether we should rely on our duly elected
representatives to administer the provisions of the Constitution in
good faith. Only strong conventions, men of character donning the
Houses of Legislature and doggedness of the people at large to force
their elected representatives to abide by the constitutional provisions
can keep the rule of law alive.
The reviewer is in agreement with the author's approach in this regard.
One cannot inscribe everything in the Constitution. Ultimately, the efficacy of
any law depends on the honesty and dedication of those whose duty it is to
implement the law. The author rightly says that mere words written in black
cannot guarantee moral rectitude. It is only the vigilance of the people and the
press that can keep the constitutional government on the right track. Besides,
making the report binding on Parliament and President means in effect that the
effective power to dismiss a high court / Supreme Court judge will become

39. Supra note 10 at 827-835.

40. This happened because the Congress party in its wisdom decided to bail out the Judge. The
party issued a verbal whip to its members in Parliament to abstain form voting on the motion of removal
of the judge.
41. Supra note 10 at 835.

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vested in the inquiry committee and the role of the President and Parliament
will become merely formal and marginal. This is not an acceptable proposition.
The present procedure seems to be the best solution till some better mechanism
can be developed. Hopefully, there will be no need in future to mobilise the
machinery for the removal of a judge. However, the reviewer wishes to offer a
suggestion. Voting on a resolution for removal of a judge in the Lok Sabha
does in no way affect the stability of the government. It is a moral and not a
political question. Therefore, the members should be left free to vote according
to their conscience and no political party ought to issue a whip to the members
to vote in a particular way. A house of Parliament, in this matter, acts more like
a judge, rather than a legislature and it should, therefore, behave in judicial
spirit rather than as a political institution. Therefore, all political parties should
help in the evolution of a convention that the members will have freedom to
vote on such a resolution, and that no whip shall be issued for the purpose.

The author refers to the Supreme Court decision in P. V. Narasimha Rao v.

State (CBI/SPE)42 where by majority of 3:2,43 the court has ruled that a member
of Parliament taking a bribe for voting on the floor of the house one way or the
other on a motion is not answerable to a court of law. The court reached this
conclusion on the basis of article 105(2) of the Constitution. The minority
thought otherwise.44
This reviewer whole-heartedly agrees with the view expressed by the
author that the majority in the Narasimha Rao case has gone on a wrong track
and that "the public good would have been better served if the bribe takers
were not allowed immunity from being prosecuted". Nothing which promotes
corruption in any sphere of life ought to be given constitutional protection.
Accordingly, this reviewer commends the minority view in this case.45 When
a member of the legislature casts his vote after accepting consideration for the
same, it is a mockery to say that he is exercising his right to vote independently.
It is too much to expect that the problem can be solved by having an ethics
panel in the House as with the present day politicisation in the country, the
proposed ethics panel will also get politically divided on party lines. Does any
one remember if any house has ever expelled any member so far on the ground

42. AIR 1998 SC 2120.

43. The majority comprised of S.P. Bharucha, S. Rajendra Babu and G.N. Ray, JJ.
44. The minority consisted of A.S. Anand, CJ, and S.C. Agrawal, J.
45. The minority maintained that a member of Parliament does not enjoy immunity under art. 105(2)
or art. 105(3) from being prosecuted before a criminal court for acceptance of bribe for the purpose of
speaking or giving the vote in Parliament or any committee thereof. Supra note 42 at 2165.

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that he has accepted bribe to discharge his functions as a member?46 Did the
Lok Sabha set up a panel to take cognisance of the charge of accepting bribe
against a member for voting in a particular manner on the floor of the house
after the above case?
The only remedy for this malaise seems to be to bring in the procedure (as
laid down in article 317 of the Constitution in relation to members of Public
Service Commissions) of making legislators accountable to the Supreme Court
for their misdeeds within the house. No corrupt practice at any level should be
given any quarter whatever may be the theoretical considerations involved
therein. Accountability and transparency ought to be the root mantra in India.
Satyamev Jayate should not merely be a theoretical concept but should also be
put into practice.

VI

The word 'socialist' was added in the preamble to the Constitution in the
year 1976. The word 'socialist' has not so far been defined. The author
suggests,47 and this reviewer agrees, that there is no need to elaborate the
meaning of this word. The word 'socialist' has a variable content. The Supreme
Court has read the preamble with certain directive principles, such as article
38 & 39, and has drawn certain postulates from this word so as to confer
economic empowerment on women and weaker sections of the society and to
promote the concept of distributive justice.48 To the extent, this word may be
used to economically strengthen the poorer and weaker sections of the society;
the presence of the word 'socialist' in the preamble may be non-objectionable.
But the moment, it is used to dictate a particular brand of economic policy for
the country as a whole, and perpetuate that policy for all time to come, the
presence of the word becomes objectionable.

46. In the days of Prime Minister Nehru, when moral considerations were not so much at a discount,
Mr. Mudgal was expelled from Lok Sabha as he used to receive monetary benefits in exchange for
services rendered as a member of the House, such as, putting questions in the House, moving amendments
to bills and arranging interviews with the ministers. This conduct was regarded as derogatory to the
dignity of the house and inconsistent with the standards which Parliament was entitled to expect from
its members. Prime Minister Nehru personally moved the resolution in the House to expel him. On the
other hand, deterioration in moral standards has gone to such an extent that today, it is the Prime
Minister himself who is accused of bribing the members to vote in his favour. See, supra note 2 at 62.
47. Supra note 10 at 756.
48. See, Lingappa Pochanna v. State of Maharastra, AIR 1985 SC 389. The right to social and
economic justice has been held to be a fundamental right: ESC Ltd. v. S.C. Bose, AIR 1992 SC 573;
Right to economic equality has been held to be a fundamental right: LIC v. Consumer Education and
Research Centre, AIR 1995 SC 1811; Right to economic empowerment is a fundamental right: Ashok
K Gupta v. State of Uttar Pradesh, (1997) 5 SCC 201; Right to economic justice and economic
empowerment is a fundamental right: Dalima Cement v. Union of India, 1996 (4) JT (SC) 555. The
Constitution of India engrafts social justice. " Social Justice" is an integral part of justice in the generic
^ase: Air India Statutory Corpn. v. United Labour Union, AIR 1997 SC 645, 669.

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486 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 24

It is well known that originally the word 'socialist' was not there in the
preamble, even though the Constituent Assembly consisted of many socialist
stalwarts, including Jawahar Lai Nehru. This word was introduced by the
Congress party in 1976 through the infamous 42nd amendment undertaken
during the emergency regime. In the view of the reviewer, the Congress party
had no business to impose on the country for all time to come its own brand of
pseudo-socialist economic policy and raise it to the status of a constitutional
doctrine. Economic policies are transient in nature; these policies change from
time to time according to the exigencies of the situation. People should have
freedom to choose what economic policies the country should follow form
time to time. It is not right that a particular hue of economic policy should be
imposed on the country for all time to come through a constitutional doctrine.
There is nothing permanent about an economic policy; it is a variable entity.
For example, there was a time when the whole economic policy was too much
focused on the establishment of public enterprises. Today the era of public
enterprises is over and that of privatisation has set in. Even in the hardened
Communist countries, the emphasis is being laid on promotion of private
enterprise.
This reviewer would, of course, like to see the word 'socialist' eliminated
from the preamble through a constitutional amendment so that the Constitution
is made an economically neutral document. The presence of the directive
principles in the Constitution really leave no scone for the presence of the
word 'socialist' in the preamble. For the present, the interests of the country
are best served by leaving the matter as it is without defining what the term
'socialist' means.

VII

Again the word 'secular' was added to the preamble to the Constitution in
1976 by the 42nd amendment. This word has not been defined and the author
suggests that there is no need to define this word.49
The concept of secularism is very elastic in connotation. This reviewer
agrees with this view. Secularism has now been declared to be the 'basic' feature
of the Constitution by the Supreme Court in the famous Bommai case.50 There
are several constitutional provisions, e.g. articles 25, 26, 29, 30, 44, 51A, 14
and 16, which promote the idea of secularism and stand in the way of
establishing a theocratic state in India. In this area, flexibility is most desirable
and the courts can be depended upon to decide the contours of secularism and
enforce it in practice, as they have done so far with a reasonable degree of
success. There cannot be any fixed views on the concept of secularism for all
time to come.
49. Supra note 10 at 756.
50. S.R. Bommai v. Union of India, AIR 1994 SC 1918. See also, supra note 15.

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2000] BOOK REVIEWS 487

VIII
In chapter XI, the author has discussed the scope of article 72 as delineated
in several Supreme Court cases.51 As regards the powers of pardon, after
defining its parameters, the Supreme Court has refused to lay down any
guidelines for the exercise of this power. The same is true with respect to the
Governor's power to pardon. It has, however, become clear that the President/
Governor has to act in this matter, as in all other matters, on the advice of the
concerned minister. The author does not agree with the view that in this matter
the President/Governor should act independently of his council of ministers as
"this may upset the scheme of the Constitution". The author observes further52:
The President is also a human being. In appropriate cases, he can
discreetly indicate his views to the Council of Ministers but eventually
in the scheme of things, if the Cabinet reiterates its views, the President
may have no choice but to fall in line.
In none of the court cases so far, it had been envisaged that grant of pardon
in any specific case may have to be quashed by the court on the ground of
improper exercise of the power. This has now come to pass. Two recent cases
have come to the notice of this reviewer where the Supreme Court has quashed
the exercise of the clemency power by the state governors. In Swaran Singh v.
State of Uttar Pradesh53, an MLA of UP assembly was found guilty of murder
and was sentenced to life imprisonment. Within two years, the UP Governor
remitted his life sentence. The family members of the deceased challenged the
Governor's action. The Supreme Court held that when the Governor exercised
the power under article 161, all the facts concerning the accused had not been
placed before him. The court has emphasized that no public power is to be
exercised "arbitrarily or mala fide." The court has further observed54:
If such power (Under Art. 161) was exercised arbitrarily, mala fide
or in absolute disregard of the finer cannons of constitutionalism, the
by product order cannot get the approval of law and in such cases,
the judicial hand must be stretched to it.
The other case comes recently from the state of Haryana. A BJP leader
sentenced to life imprisonment in a murder case was pardoned by the Governor
of Haryana. The Supreme Court ruled that the Governor had exercised his
power "without applying his mind" and, accordingly, quashed the clemency
order. The court said55:

51. Maru Ram v. Union of India, AIR 1980 SC 2147; State of Punjab v. Joginder Singh, AIR 1990
SC 1396; Kehar Singh v. Union of India, MR 1989 SC 635; Ashok Kumar alias Golu v. Unionof India,
AIR 1991 SC 1792.
52. Supra note 10 at 799.
53. AIR 1998 SC 2026.
54. Id. at 2028.
55. Satpal v. State of Haryana, JT 2000(5) SC 567.

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488 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 :2-4

.. .the conclusion is irresistible that the Governor had not applied his
mind to the material on record and has mechanically passed the order
just to allow the prisoner to overcome his conviction passed by the
court.
Rejecting the plea of the government that the power of pardon and
remission of sentence was executive in nature, the court observed:
There cannot be any dispute with the proposition of law that the power
of granting pardon under Art. 161 is very wide and does not contain
any limitation as to the time on which and the occasion on which and
the circumstances in which the said power could be exercised. But
the said power being a constitutional power conferred on the Governor
by the Constitution is amenable to judicial review on certain limited
grounds.
In the instant case, the court ruled that the Governor was not properly
advised. These cases show that the power of pardon is at times exercised not
on merits of the case but under political pressure. So long as the clemency
power is exercisable on the advice of the minister, political considerations
cannot be eschewed from the exercise of power under article 161 (also article
72). It is, therefore, necessary to develop a non-political mechanism for the
exercise of this power so that the power is exercised purely on the merits of
each case without any political connotations. Incidentally the above cases
indicate that there exists a close nexus between crime and politics, and the two
Supreme Court cases, noted above, can be regarded as step taken by the judiciary
towards breaking such a nexus.

IX
Dr. S.C. Jain has discussed in chapter XII56 a very significant question,
viz. that of the caretaker government. When the government in office loses its
majority in Lok Sabha, the government resigns, the house is dissolved and the
government remains in office pending fresh elections if no alternative
government having majority in the House can be formed. There may be a gap
of several months between dissolution and fresh election to the Lok Sabha. A
suggestion has been made that during this interim period the government should
act more like a caretaker government and abstain from taking important policy
decisions. An intensive debate took place in the country when on April 17,
1999, the Vajpayee government lost the vote of confidence in the Lok Sabha
by one vote. Prime Minister Vajpayee resigned. When the opposition parties
who had voted against the Vajpayee government themselves failed to come
together and form the government, the President dissolved the House, and the

56. Supra note 10 at 800-809.

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2000] BOOK REVIEWS 489

Vajpayee government continued to remain in office in the meantime till fresh

elections could be held. The Congress party which had played a leading role in
pulling down the Vajpayee government, and which then failed to form the
government, now began to argue that the Vajpayee government ought to act as
a caretaker government and nothing more.
On this question, the author makes a suggestion, viz. "to incorporate the
concept of caretaker government in thevConstitution itself and to indicate
guidelines for its functioning".57 He also suggests constitution of a committee
of representatives of the political parties to advise the government. The author
also suggests that the "procedure requiring consultation with major political
parties could be incorporated in the Constitution of India."58
The reviewer does not agree with these suggestions. At present, the
Constitution is silent on this point and the matter has been left to conventions.
The reviewer is of the view that since the ministerial form of government
functions by and large on the basis of conventions, and not rigid rules, the
nature of the government in office when Lok Sabha is dissolved should also be
left to the evolution of proper conventions. Any constitutional provision defining
the scope of the functioning of the so called care taker government will make
the whole system rigid and may make it difficult for the government to cope
with any emergency situation which may arise. In such a situation, the
government cannot afford to remain inactive pleading its caretaker status. The
Vajpayee government itself had to face intrusion in Kargil and had to take
many momentous policy decisions to overcome the situation. The government
could not at such a time refuse to act saying its status being that of a caretaker
government, it could not take any policy decisions even in an emergency. Much
of the discussion in India which took place in this connection was before the
intrusion in Kargil happened. After the Kargil emergency subsided, the question
lost much of its relevance.
This reviewer feels that neither it is necessary nor it is possible or desirable
to write every thing in black and white in the Constitution. The author himself
has expressed the view in another context that the Constitution cannot be
cluttered with all kinds of sundry provisions.59 As compared to many other
constitutions in the world, the Indian Constitution is already too long and too
prolix. Enough space should be left for the organic growth of the Constitution
through constitutional interpretation and emergence of practices and
conventions. Ordinarily, a convention ought to be followed that the interim
government should not make any new policy decision if it can be avoided and
postponed till the new government takes office, after elections, but there should

57. Supranote 10 at 803.

58. Supranote 10 at 805.
59. See, supra note 41.

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490 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 ; 2-4

be scope for the government to meet extraordinary situations in spite of its

interim status. The security and well being of the country is supreme and
paramount and is above all theoretical considerations. The suggestion to have
a committee of representatives of political parties to advise the government
during the interim period also does not seem to be viable in India where political
parties see every matter not on merits but through political lenses. Such a
committee would be divided on political lines, and being election time, political
parties will display populist attitudes and play to the gallery rather than
considering and deciding issues objectively and on their own merits. A
committee of this type will make the functioning of the government extremely
difficult. The matter is thus best left to the good sense of the President and the
Prime Minister who is ultimately accountable to the people.

In these days when practically everything is mired in the mud of corruption

all around, the author raises an important question in chapter XIII, viz., who is
to give sanction for the prosecution of a minister under the "Prevention of
Corruption Act? Is the President/Governor entitled to sanction prosecution of
a minister under the Prevention of Corruption Act in the absence of advice of
the Prime Minister/Chief Minister to that effect? So far as the Chief Minister
is concerned, following the Supreme Court decision in State of Maharashtra
v. Ramdas Shrinivasa Nayakm, a practice has emerged that it is the Governor
of the State concerned who accords such sanction for his prosecution in his
discretion without the aid and advice of the council of ministers. Theoretically,
this is justifiable because, as has been held in several cases, it is the Governor
who appoints the Chief Minister and so can dismiss him in his discretion.61 A
difficult question is raised in case of a minister who is to sanction his
prosecution? Theoretically, the Governor can dismiss a minister, but he does
so only on the advice of the Chief Minister who is the effective appointing and
dismissing authority as regards a minister, and the Governor plays merely a
formal or passive role in this connection. Therefore, the question is whether
the Governor can sanction prosecution of a minister in his own discretion, or
should he act in this matter on the advice of the Chief Minister? If it is the
latter, then it will be extremely difficult to prosecute a minister on charges of
corruption for it is difficult to envisage that the Chief Minister would advise
prosecution of a minister on a charge of corruption, and yet let him continue in

60. AIR 1982 SC 1249.

61. Under art. 164, " The Minister shall hold office during the pleasure of Governor". See, Mahabir
Prasad Sharma v. Prafulla Chandra Ghosh, AIR 1969 Cal 198; Jogendra Nath v. State of Assam, AIR
1982 Gau 25; See also, supra note 2 at 188-193. The matter is now pending before the Supreme Court
in J. Jayalalitha v. M. Chenna Reddy, (1998) 8 SCC 601.

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2000] BOOK REVIEWS 491

the cabinet as well. Further, partisan considerations may crop up for it will be
very painful for the Chief Minister to admit that there has been a corrupt minister
in his cabinet.
The author suggests that in such a situation the doctrine of necessity can
be invoked and the President/Governor may sanction prosecution of a minister
even against the advice of Prime Minister or Chief Minister.62
In the opinion of this reviewer, a simple solution appears to be to amend
the relevant Act by introducing a provision therein authorising the President/
Governor to give sanction for prosecution of the Prime Minister/Chief Minister
or a minister in his discretion. It is quite possible under the Constitution to
confer powers on the President or the Governor. 63 But there is a more
fundamental question to consider in this connection. Giving or not giving of
sanction by the Governor for the prosecution of the Chief Minister invariably
raises a political controversy. The Governor is accused of political motives in
sanctioning or not sanctioning prosecution of a Chief Minister under the
Prevention of Corruption Act. Recently, when the Governor of Bihar gave
sanction to prosecute Chief Minister Laloo Prasad Yadav, the latter accused
the former of having acted under political pressure. This reviewer, therefore,
suggests that some mechanism of a non-political character should be thought
of for the purpose which can act in this matter objectively, purely on merits,
and without any political bias or considerations. Will it not be better to leave
the matter to the trial court to decide whether, on the basis of the evidence
before it, there is a prima facie case against the minister? If so, then only trial
can start. Theoretically it is possible to argue that seeking executive sanction
before undertaking trial of a person in a court amounts to executive interference
with the judicial process and amounts to the negation of the constitutional
principle of separation of the judiciary from the executive.

XI

The author makes a valid point that there need not be any objection to a
review of the Constitutional provisions "in the light of practical needs of the
contemporary society as well as the experience gained over the years, without,
of course, compromising the liberal humanistic and other values enshrined in
the Constitution". 6 4 The Central Government has now appointed a
Constitutional Commission to review the Constitution without interfering with
its basic features. The report of the Commission will be out in the near future;
the pros and cons of the suggestions made by the commission will be debated
at length by the nation and the press. And if any consensus emerges then the

62. Supranote 10 at 809.

63.See, arts. 53(1) and 154(1).
64.Supra note 10 at 750.

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necessary constitutional amendments can be undertaken. Mercifully, tto

contemporary political configuration in Parliament is such that no single party
is in a position to carry out any constitutional amendment unilaterally on the
basis of its own strength. Any constitutional amendment can be effectuated
only after some sort of national consensus emerges. Let us hope that the
Commission's recommendations lead to the strengthening of the concepts of
constitutionalism, public accountability and transparency in the governance
of the country.
Two amendments which this reviewer keenly wishes to see incorporated
in the Constitution are: (i) to have a constitutional provision mandating the
appointment of an ombudsman-type mechanism both at the level of the centre
and the states to redress public grievances against the administration as well as
to fight corruption. This will greatly reduce the bulk of litigation against the
government as well as the public interest litigation, which is undertaken by
dissatisfied groups/persons as there is no established mechanism presently to
redress grievances; (ii) to have a constitutional provision fixing the maximum
strength of council of ministers in the states and at the centre. Presently, with
the advent of coalition governments unduly large cabinets have become the
norm of the day. In Bihar, all the Congress party members elected to the Bihar
assembly have been made ministers. This is not parliamentary system but a
parody thereof. It is therefore necessary to fix through a constitutional provision
that a council of ministers should not be bigger than 10% of the strength of the
legislative assembly in a state or Lok Sabha at the centre. To say more on this
matter will however fall beyond the scope of the present review.

XII

Keeping in view the constrains of time and space for a reviewer, this
reviewer has selected only a few of the topics for his comments and
observations. But Dr. S.C. Jain has said much more on many other topics in
the text contributed by him in the book under review under the title "Select
Issues and Perspectives". He has made many valuable suggestions which need
to be considered very carefully by the scholars of constitutional law. For
example, he is in favour of adding a directive principle directing the state to
take steps to promote population control as well as impose a duty on the citizens
for the purpose.65 In chapter VII 66 , he traces the progress of the cases on article
30 in the Supreme Court67 in which the main question before the court is "to
discern the true scope and interpretation of article 30(1) of the Constitution".

65.Supra note 10 at 791-794.

66.Supra note 10 at 773-781.
61.T.M.A. Pai Foundation and Ors. v. State of Karnataka, (1998) 2 SCALE 620.

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2000] BOOK REVIEWS 493

In chapter IV68, he has dealt with the question of making reservations in services
under article 16 in favour of women.69
Dr. S.C. Jain has done a commendable job in contributing this text under
the title "Select Issues and Perceptions" under the Constitution of India. Any
reader who goes through this text will be amply rewarded as he can find nuggets
of informative & thoughtful comments by the author on several issues
interspersed here and there in these pages.
Dr. S.C. Jain has made a meaningful contribution to the literature on
constitutional jurisprudence in India. This reviewer congratulates him on his
achievement. This reviewer also wishes to congratulate the publishers, Taxmann
Allied Services, for bringing out such an ornate and elegant volume on
Constitution of India on the auspicious occasion of its golden jubilee. This
volume can ornament any law library.
Keeping in view the convenience of the readers, Taxmann Publications
(P.) Ltd. have now brought out a separate publication containing the author's
comments under the heading "select issues and perceptions" contained in
division IV of the commemorative volume now under review. This new book
also contains the text of the Constitution as amended to date incorporating 82
constitutional amendments made so far. The new publication is priced at Rs.
450 and would thus be more easily accessible and affordable by those who
have an interest in the study of the Constitution of India.

M. P. Jain*

68. Supra note 10 at 762-764.

69.The Supreme Court has accepted reservation in services for women under art. 15(3) of the
Constitution. Art. 15(3) says: "Nothing in this Article shall prevent the State from making any special
provisions for women and children." Art. 16(4) provides for reservation of posts in favour of any
"backward class of citizens". As the author points out, it is difficult to accept the proposition that
women can be regarded as falling under the term "Backward Classes". Id. at 763-764. See also, Govt.
of Andhra Pradesh v. PB. Vijaykumar (1995) 4 SCC 520.
* Professor of Law.

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