Article 1

THE CONSTITUTION AND CONSTITUTIONALISM IN INDIA
Author(s): SHREE RAM CHANDRA DASH

Source: The Indian Journal of Political Science , JANUARY-MARCH 1973, Vol. 34, No. 1
(JANUARY-MARCH 1973), pp. 7-40
Published by: Indian Political Science Association
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THE CONSTITUTION AND CONSTITUTIONALISM IN INDIA
SHRBB RAM CHANDRA DASH*
Twenty-two years ago in 1950, the Indian Political Science Association

had its thirteenth Annual Conference under the distinguished auspices of
Calcutta University in that Senate Hall whose Gothic pillars stand even
today in the College Street as a permanent reminder of the glory that was
Calcutta University with its motto of "Advancement of Learning". It was
presided over by Principal Shriram Sharma of D. A. V. College, Sholapur.
That was the year when I betrayed the combined discipline of Economics
and Political Science, opted for Political Science alone which was not till
then an independent discipline either in Bengal or in Orissa and attended
the Indian Political Science Conference as a freshman. Through these
twenty-two years, I have graduated as a member of the Association through
my service as General Secretary and Treasurer in 1958, 1959 and 1960,
Local Secretary in 1961, Editor of the Indian Journal of Political Science
in 1964, 1965 and 1966 and Vice-President in 1970 reaching the summit
through the hard way unlike some of my distinguished predecessors who
came to this Chair rather directly. I have no pretentions of eminence in
the domain of scholarship and if despite this lacuna, you have pushed me
through gradual steps to this position, the honour is mine but the fault is
yours. This fault is your unbounded generosity, towards pygmies in the
field of political science who can, sustained by your goodwill and affection,
walk on the stage of scholastic eminence with giant strides. I am deeply
conscious of my failings but at the same time I fully appreciate the extent
and intensity of the honour done to me in as much as the Conference has
been inaugurated by the most distinguished statesman and administrator of
the country and you have commanded me, an Oriya, to preside over it in
what is practically my home town in as much as my State of Orissa was
till 1912 a part of the then elephantine Presidency of Bengal. Utkal
Gaurab Madhusudan Das, the architect of modern Orissa used to say,
"One who breathes the air of Orissa and is sustained by its soil, is an Oriya
no matter what language he speaks and what religion he professes". By
these standards, I was a Bengalee till 1912 being a resident of Orissa, a
minor segment of the cosmopolitan Presidency of Bengal which had included
♦ Professor and Head of the Post-Graduate Department of Political Science,

Utkal University, Vani Vihar, Bhubaneswar (Orissa).
This is the text of the Presidential address delivered at the 33rd Session of the
Indian Political Science Conference held at Calcutta on 27th December 1972.

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8 THE INDIAN JOURNAL OF POLITICAL SCIENCE
in her territorial limits persons speaking all languages and professing all reli-
gions of India. The then Presidency of Bengal was what goes today by the
geographical name of Eastern India or political nomenclature of the Eastern
and North Eastern Zones. Netaji Subhas Chandra Bose is a standing and
historical monument of the confluence of Bengal and her child, Orissa as
Netaji was born, brought up and partly educated at Cuttack and played
his remarkable role in the history of India from Calcutta. Two other
similar links are Sri Chaitanya and Poet Jaydev of Gitagovinda. I cannot
therefore adequately thank you for the signal honour you have conferred
on me by asking me to preside over our thirty-third Annual Conference
in Calcutta.
In this year of silver jubilee of India's independence, every one of us

assembled in this erstwhile second biggest city of the forgotten British
Empire and the biggest city of the Indian Union, is conscious of the
hallowed ground on which we unwittingly tread. Here in this city of India,
wheels were set in motion to bring about the country's liberation and
hundreds of young men and women, defying the hair-raising oppression
and persecution by the alien power sacrificed their precious lives on the
altar of the country's freedom. Ram Mohan Roy and Ishwar Chandra
Vidyasagar, the pioneers of modernity, Sir Prafulla Chandra Roy and
Sir Jagadish Chandra Bose, the torch-bearers of science and technology,
Rabindranath Tagore, Sarát Chandra Chatterjee, Bankim Chandra
Chatterjee, Dwijendralal Roy and Tarashankar Bandopadhyaya, creators
of a nation through the medium of literature, Keshab Chandra Sen and
Divendranath Tagore, harbingers of a new thought process in Hinduism,
Sir Ashutosh Mukherjee and Sir Rash Behari Ghosh, the eminent up-
holders of the independence of the judiciary against the all-embracing
might of British imperialism, Sir Surendranath Banerjeeand Bepin Chandra
Pal, the great Demosthenian orators, Deshbandhu Chittaranjan Das and
Deshpriya Jatindra Mohan Sengupta, the high priests of Indian National-
ism, Abanindranath Tagore and Jamini Roy, protagonists of a cultural
renaissance through painting and Sri Dilip Kumar Roy, K. L. Saigal and
Hemant Kumar, the maestroes of music have consecrated the soil of this
great city by their footprints.
It is said, 'Religion is the opium of the people'. It is perhaps right.

Opium has two properties. It is as much soporific as invigorating. An
opium-addict may be lulled to sleep without any concern for men and
matters around him, he may as well act fearlessly regardless of consequences.
Bengal produced religious leaders who because of their ardent faith in God
and His Creation, have played a prominent part in awakening the Nation
to throw off the foreign yoke. Shri Aurobindo of Pondicherry and Sir Sri
Ramakrishna Paramhansa and Swami Vivekananda were not merely

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THE CONSTITUTION AND CONSTITUTIONALISM IN INDÌA !)
advocates of a new way of life for man, they also served as ambassadors of
Indian culture and civilisation. The saffron-clad hermits of Ramakrishna
Mission have carried the torch of Hindu culture and polytheism to all the
countries of the world and particularly to the U. K. and U. S. A. and their
very sight inspires confidence that men wedded to social service are there
to bring relief and succour to the distressed humanity. They too have
sanctified this soil by setting their holy feet on it.
If we merely remember them and resolve to imbibe a little of the

monumental contributions made by them to different facets of national life,
we will be ennobled and regarded as men and women of much greater
eminence than what we actually are through our own creations and achieve-
ments. Let our short sojourn in this memorable city imbue us with the
ardour of their patriotism and the fire of their nationalism for which
Calcutta is so great in the annals of this country.
IE
Coming so near to the artificial boundary line drawn by the Radcliffe

Commission of 1947 which broke up families, bifurcated a homogeneous
culture, disrupted and divided a unified economy and lacerated millions of
hearts, we cannot remain oblivious of the ghastly drama enacted on the
other side leading to the establishment of the People's Republic of
Bangladesh. Students of political sc'ence that we are, we are naturally
more excited about the emergence of Bangladesh as an independent sovereign
democratic republic with Indian territories lying on both the sides of the
new State and our knoweldge of constitutionalism and international law
raises in our minds thoughts and ideas some of which are in conformity
with the policy and actions of our Government and the rest are at variance
with them. Despite this, it well behoves all of us to be precise in our
approach towards this problem.
Pakistan was created by mutual consent and goodwill and the

Government of India for twenty-five years had been repeatedly asserting
that the existence of Pakistan is a fact of life and there is neither an
intention nor a desire to do anything as a bigger neighbour with a view to
either imperilling or obliterating her. The hand of perpetual friendship
offered by India in form of a mutual no-war declaration had been consis-
tently spurned by Pakistan1 and even though there had been five general
elections in our country Pakistan's mind still remained immobile in
1948 and continuing bitterness was generated on the score of merger
1. "Successive Governments of Pakistan based the survival and unity of their

country on the idea of confrontation with India. This has stood in the way of
cooperation which would have been to our mutual benefit." Smt. Indira
Gandhi in Foreign Affairs Quarterly , October, 1972.

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10 THE INDIAN JOÜftNAL Of řOLIŤIČAL ŠCÍENČÉ
of Jammu and Kashmir, with Iadia. We had given them an inexha

fund of goodwill and even when we were attacked twice in 1
her, our Prime Minister impelled by our incessant craving fo
in the so-called Indian sub-continent and our adherence to the
five principles of Pancha Shsel, went at the instance of the British
Prime Minister Wilson who had exhibited no freindship towards us but
advised moderation, and of ths Soviet Premier Kosygin, a real friend of
India, all the way to Tashkent to find a way out without unnecessary
rancour and bloodshed and breathed his last there thus strengthening th
bond of friendship and cooperation between the two great countries of
India and the Soviet Union which has been given a concrete shape through
the twenty-year Indo-Soviet Treaty of Peace, Friendship and Cooperation
1971.
Becauss of her internal policy, Pakistan had knowingly thrown out

waves of refugees from time to tims from her own soil and though there
were so maay neighbouring countries like China and Burma in the .east and
Afghanistan, Iran and China in the West inhabited by Muslims, the refugee
chose to seek shelter in India thus proving how unreal the vivisection of
India was. The latest wave of refugees exceeding about ten million souls
threatened our economy with disruption and portended internal disaster.
There was spacial, economic, cultural and linguistic discordance between
the two wings of Pakistan and it was only for the purpose of ruthles
suppression of discontent of the people with their government that even
ostensible democracy had been given a go by and a monocracy had been
set up for more than a decade. If their President ordered an election iti
December, 1970 and the Awami League led by Bangabandhu Mujibur
Rahman secured 160 out of 300 seats, an absolute majority in the Nationa
Assembly as well as in the East Pakistan Assembly on the strength of his
advocacy for regional autonomy inside Pakistan, it was Pakistan's own
internal affair and we had nothing to do with it but India could not simply
stand and stare listlessly when Pakistan committed genocide in her eastern
wing and pushed out ten million people into India. As a civilised country,
particularly when the refugees were erstwhile Indians with close relations in
our country, we had on humanitarian - grounds provided shelter to them
with tremendous stress on our internal situation and we naturally expected
that this bsing a world problem and not our own problem, the world
conscience should be roused against Pakistan and all countries and the
United Nations, must come to the aid of India in the matter of refugee
relief. For this humanism of hers, India was threatened by Pakistan with
aggression and this provocative stance was unfortunately aided and abetted
by some countries including two of the Big Five in the United Nations.
The world should have considered whether India, the land of traditional
hospitality towards all streams of culture, should have sealed her borders

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flíB tíONSŤITUTIÓN AND CONSTITUTIONALISM IN ÍNDIÁ li
against the refugees leaving them to be mercilessly slained by the Pakistan

army or forced them out of our borders to suffer their own fate there.
This is a question which the civilised world must answer.
India had no interest as to how Pakistan governed her territories and

how the results of an election there were implemented. In like manner,
India was not inclined to advise or dictate, if the President of Pakistan
should or should not have conceded the right of regional autonomy to the
people of East Pakistan. On the contrary when President Yahya Khan
soon after election publicly acknowledged Bangabandhu Mujibur Rahman
as the future Prime Minister of Pakistan and himself travelled to Dacca to
finalise the terms and conditions of transfer of power to the hands of the
democratic representatives of the people, India heaved a sigh of relief that
with a democratic or popular government at Islamabad, India and Pakistan
can settle problems of mutual interest around a table in accordance with
the accepted norms of democratic behaviour not easily comprehended by
military despots. But on March 25, 1971 the President, probably instigated
by Sri Z. A. Bhutto, the leader of the second biggest element in the
National Assembly and egged on by his military advisers like General
Tikka Khan, committed a political somersault and ordered a swift and
sudden attack on the unarmed and defenceless people of East Pakistan.
The selective and discriminate killing of Bengalees, both Hindus and
Muslims even in those areas which had a polyglot population enraged and
exasperated the local people and with their leaders suddenly taken away
from their midst, they reeled under wanton man-slaughter and could not
decide their course of action. In the beginning of April 1971, news about
the misadventures of Pakistani armed forces in their own country leaked
to the wide world and ghastly stories of sadistic torture and planned exter-
mination convinced every one, including unimpeachable foreign observers
and commentators that Pakistan committed what by all standards was
nothing but genocide on the Bengalee cultural and linguistic groups on a
scale and pattern reminiscent of Hitler's orgy of violence and oppretsion
agaist the Jewry. Till then it was Pakistan's own affair and India had held
her breath.
Religion is not the sole element for constituting a nationality, yet

Pakistan was born out of hatred and bitterness created by the two-nation
theory.2 Justifying his demand for Pakistan, Mr. Jinnah had said in 1940,
"It is a dream that the Hindus and Muslims can ever evolve a common
nationality and this misconception of one Indian Nation has gone far
beyond the limits and is the cause of most of your troubles and will lead
2. "Pakistan was based on the medieval notion that religion alone constituted
nationhood. Pakistan was born a geographical curiosity, its two halves
separated by a thousand miles of Indian territory". Smt. Indira Gandhi - Ibid.

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iž THE INDIAN JOURNAL OF t>ÔLIÎICÀL SCItttCÊ
India to destruction if we fail to revise our notions in time. The Hindus

and Muslims belong to two different religious philosophies, social customs,
literatures. They neither inter-marry nor inter-dine together and indeed,
they belong to two different civilisations which are based mainly on con-
flicting ideas and conceptions. Their concepts on life and of life are
different. It is quite clear that they derive their inspiration from different
sources of history. They have different epics, different heroes and different
episodes. Very often the hero of one is a foe of the other and likewise
their victories and defeats overlap. To yoke together two such nations
under a single state, one as a numerical minority and the other as a majority
must lead to growing discontent and final destruction of any fabric that
may be so built up for the government of such a state". If the Bangabandhu
adopted this statement and replaced "Hindus & Muslims" by "Bengalee
Muslims and Western Muslims" it was unfair for the then President of
Pakistan, the embodiment of this bitterness, to refuse the right of self
determination to East Pakistan. After all, the refugees from Bangladesh
were mostly Bengalee Muslims and if Muslims of East Pakistan refused to
be ruled by their co-religionists of West Pakistan, the basic philosophy of
Pakistan failed and its continuance as a separate state appeared as a
monstrosity of Indian History.
The Awami League demanded regional autonomy within the

framework of Pakistan and the people endorsed it through a general
election held in December, 1 970 but whether Pakistan should have conceded
this right was a problem entirely within her domestic jurisdiction. India
did not underwrite the demand or exert pressure unilaterally or through
any international agency established to promote maintenance of human
rights, on Islamabad to satisfy the demand of the Bangalees of East
Pakistan.
Former President Yahya asked the genius of democracy to come

out of the bottle but could not put it back again. The prospects of
democracy and freedom were dangled before the people and when they
secured these through the ballot box, the military monocrat scented danger
and let loose the forces of oppression in a manner subversive of all
Covenants and Declarations of Human Rights. The Bangabandhu who
was almost unanimously elected Head of Bangladesh was whisked
away to West Pakistan and imprisoned there. This started a rebellion,
an insurrection or a ghastly civil war with an orgy of violence and
manslaughter unheard of ,in civilised countries. Leaderless because of
the sudden swoop of Pakistan on their democratically elected leaders
the people formed a State of their own called the Republic of
Bangladesh which on account of spontaneous offer of help from their own
people, constituted a Mukti Fouz which caTried on guerilla warfare for

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THE CONSTITUTION AND CONSTITUTIONALISM IN INDIA 13
nine months against the Pakistan army.

This rebellion was justified on the ground that according to President
Yahya himself, the sudden and unprovoked attack on the people of Bangla-
desh was the result of mature deliberation and prior calculation of
consequences, for he admitted in an interview given to a representative of
the British Press, "No one ever treated the Bangalees fairly. We too
have made mistakes and by 'we' I also mean East Bengalees who have
been our Presidents and Prime Ministers since independence".3 On the
other hand Mr. Nurul Amin, leader of the right-wing Pakistan Democratic
Party and the present Vice-President of Pakistan said "An East Pakistani
be made Prime Minister of Pakistan. The present crisis in East Pakistan
was the result of injustices done to that wing of the country in the past
and a lingering suspicion among the people that whenever there was a
chance for the transfer of national power to an East Pakistani, something
happened to prevent it".4 The State of Bangladesh appealed for inter-
national recognition and scores of diplomatic representatives all over
the world defected from Pakistan to Bangladesh. In fact, a Bangladesh
Mission in Calcutta and a High Commission in New Delhi started
functioning. India could have created difficulties for Pakistan by accor-
ding at least de facto recognition to Bangladesh and international law
authorised her to do so.5 A section of public opinion in India was on the
verge of hostility towards the Government of India and the Prime Minister
for not according recognition to Bangladesh, yet they had shown modera-
tion as it was not in accordance with the canons of civilised behaviour to
take advantage of another man's difficulty. Besides, because of an
amorphous territory and a nebulous population and government of the
Republic of Bangladesh, the Government of India did well in marking
time till it became imperative to accord recognition thereby giving time to
Pakistan to make up her mind. It was good policy though bad diplomacy
and the country of Gandhi and Nehru could not have been expected to be
perfidious.
India no doubt did not take much interest in the problems of
democracy in East Pakistan and establishment of the Republic of Bangla-
desh as in her opinion these were purely internal affairs of Pakistan but
when millions of refugees came over to West Bengal, Assam, Nagaland
and Tripura entailing serious impact on India's economic, social and
3. Quoted from Daily Mail , London in Amrita Bazar Patrika, Dak Edition Novem-
ber 14, 1971.
4. Statesman , November 15, 1971.
5. "A legitimate claim to recognition of statehood coincides with the conditions
which permit a state to recognise a seceding community without committing an
illegality in relation to the parent state" Oppenheim, International Law , Vol. I.
1948, p. 114,

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administrative systems, she started taking interest in Bangladesh. T

influx of refugees threated even India's internal peace and security. In
wanted the world to appreciate that she had no mind to rehabilitate
refugees permanently, they must go back home and the world organisa
and public opinion should exert pressnre on Pakistan to negotia
settlement with Bangabandhu Mujibur Rahman, the elected leade
Bangladesh so that necessary circumstances were created for their retu
India apprehended that if a settlement between Pakistan and Bangladesh
inordinately delayed, with the prevailing temper of the people of Ban
desh not to live any longer under Pakistani rule, division of Pakistan w
be an accomplished fact and it might in course of time have portend
disaster for the unity of India as well.
India had a number of options before her and had she follow
any one of them Pakistan woüld have faced incalculable disaster.
could have like Japan and Germany during the period of Second Wor
War, trained and equipped the able-bodied refugees and sent the
volunteers to join the Mukti Fouz in Bangladesh. India could ha
also permitted her own people to go to the other side of the border
volunteers as China had done in the Korean war. India could have
accorded de facto recognition to the Republic of Bangladesh and on an
invitation from the latter helped the insurgents to fight with Pakistan
army in that country, as was the case with General De Gaulle in 1941.
India also could have intervened in East Pakistan on humanitarian grounds
or on the ground of self-defence as was done by the Soviet Union in case
of Finland in 1940.7 International Law authorised India to adopt any
of these options and there are instances and decisions of the United
Nations to justify India's action. One has to admit that some of
the options if exercised were fraught with dangerous consequences for
world peace but India has not bargained to be the only country to follow
the principles of international law and civilised intercourse among nations
when Pakistan went on violating each one of them and all of them together
6. Sm. Indira Gandhi said in Washington

"Shaikh Mujibur Rahman was the only responsible Bangladesh official
Mr. Yahya Khan could deal with him since he was the duly elected leader and
had the population behind him. Since the demand for completé independence
of East Bengal only followed Shaikh Mujibur Rahman's capture, the Shaikh is
the only Awami leader who can negotiate without having to retreat from a
fixed demand for total independence." Statesman 14-11-1971
7. "The unprecedented flow of destitute refugees constitutes in effect, a blood-
less aggression against India- although the campaign of terror in East Bengal
which precipitates this flow is by no means bloodless
'•The refugees will not return to their homes until repression ends in East
Bengal and the political crisis is solved". Editorial in International Herald
Tribune , London quoted in Amrita Bazar Patrika of November, 14, 1971.

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with impunity from the day of her birth in 1947. Moderation to some
extent is commendable but moderation to the extent of hesitancy is cow-
ardice. If the world did not understand the problem in this part of Asia,
it was their business. England, U. S. A., U. S. S. R., France and the
People's Republic of China, the Big Five of theU. N. were too near the field
operation or too much versed in Pakistani activities to wait for any coach-
ing from our Ministers to determine their policy and attitude towards
Pakistan.8
Indian policy of caution, moderation, good neighbourliness and

adherence to the principles and postulates of the United Nations were
rewarded with military postures and threats of aggression from Pakistan.
It has been an ingredient of modern diplomacy to create an apparance in
order to conceal the reality and when friendly countries are made to emph-
asise on the appearance, the reality remains away from attention and goes
on developing. If a country is not always found innocent in 'real
politik,' its foreign policy is a failure. On these accepted Machiavellian
standards of tha modern world, Pakistan's foreign policy deserved
admiration. Pakistan was opposed and repudiated in one part of
her territory because of her own acts of omission and commission and
it was for her to convince the world that she was capable of managing
her own affairs. By massing her armed forces on the Radcliffe borders
between India and Pakistan, she created a make-beleve that India's chest-
nuts were in fire and there must be a dialogue between the two countries
to settle the problem of Bangladesh. This equation was wrong and
mischievous. Pakistan invaded Kashmir in 1947 but because of such a
false equation the Kashmir problem remains unresolved even today after
twenty-five years. Had a similar equation been accepted for the Bangla-
desh problem, a festering sore would have remained inside India's
territory as a standing invitation for the disintegration of the Indian
Union also. The Prime Minister had rightly spurnned all such foreign
suggestions with contempt.
Presistent and persevering efforts of our Prime Minister to evolve

a peaceful solution of the problems in East Pakistan in ordet to ensure
safe return of ten million refugees were frustrated by a sudden and
unprovoked aggression on India by Pakistan in the evening of December
8. "Pakistan joined military alliances which had been formed ostensibly to contain
international communism but which Pakistan used primarily in order to
acquire weapons to be used against India. Moreover it suited the West to
play off Pakistan against India. China gave military assistance to Pakistan
with the same purpose. Later, so did the Soviet Union in order not to lose
leverage, but soon discovered its hazards. The consequence of this assistance
was to strengthen the militarist oligarchy in Pakistan." Sm. Indira Gandhi in
Foreign Affairs Quarterly , October, 1972.

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3, 1971. Our President proclaimed a national emergency and as

Supreme Commander of the Defence Forces of the Union ordere
Chiefs of Staff of the Army, Navy and Air Force to repel the aggre
The Prime Minister announced a state of war between India and West
Pakistan on the following day and accorded de jure recognition to the
People's Republic of Bangladesh on Monday, the 6th December,
197 1 .9 This was an eventuality which India had not only foreseen but
strenuously avoided and the unwise policy of the Goveroment of Pakistan
had forced it on her. India was anxious to see Pakistan remain united
inspite of her being a geographical, historical and political monstrosity but
Pakistan forced her hands to legally initiate a process of dismemberment
through this recognition of the formation of a sovereign state in what was
yesterday a component element of Pakistan, Recognition by India was
quickly followed by similar declarations by ninety- three other States includ-
ing four of the Big Five of the United Nations. Only China and Pakistan
refuse to see the reality and obstinately deny recognition. The People's
Republic of Bangladesh is now a sovereign democratic republic in interna-
tional law and any amount of prevarication by Pakistan or China cannot
rob her of her international personality. She has been admitted to the
membership of numerous world organisations and the General Assembly
of the United Nations has twice expressed itself in favour of her admission
to the world body. Pakistan can only thank herself for this debacle in
her evolution and this process of dismemberment may ultimately have
serious repercussions on the aspirations of the people of Pakhtoonistan,
Baluchistan and Sind.
The People's Republic of Bangladesh stands committed to the

principles of nationalism, socialism, secularism and democracy, and in
9. ''Now that Pakistan is waging war against India the normal hesitation on our
paît not to do anything which could come in the way of a peaceful solution
or which might be construed as intervention has lost significance. The people
of Bangladesh battling for their very existence and the people of India fighting to
defeat aggression now find themselves partisans in the same cause.
"I am glad to inform the House that in the light of the existing situation "and
in response to the repeated request of ihe Government of Bangladesh, the
Government of India, have after the most careful consideration, decided to
grant recognition to the Gana Prajatantri Bangladesh.."
(Lok Sabha Debates of December 6, 1971)
"It was only when Pakistan made the supreme folly of attacking us across our
own frontiers that we had to defend our territorial integrity. From that point
the war of the people of Bangladesh for attaining their freedom and the war of
the people of India to defend their freedom became one. Any hasty action at
an earlier stage would have brought incalculable harm to India and possibly not
led to results of which we are now so proud". Address of the Prime Minister,
Rajya Sabha Debates, March 20, 1972,

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foreign affairs, she has adopted the policy of non-alignment. India from
the day of her independence has accepted these as the basic postulates of
her statecraft for which good-neighbourliness and peaceful co-existence
between India and Bangladesh are assumed facts of existence.10 India
was ceaselessly striving to embody these values in her relationships with
Pakistan and every time she extended her hand of friendship towards
Pakistan, she had a finger burnt. The fourteen days' war between India
and Pakistan in December, 1971 ended in abject surrender of the Pakistan
Army in Bangladesh and capture of about a lakh of Pakistanis as prisoners
of war, dismemberment of her territory, overthrow of the military junta
led by General Yahya Khan by what is apparently a civilian rule under
Mr. Zulfikar Ali Bhutto as President; naked exposure of China as a false
prophet of the oppressed humanity, humiliation of the United States, the
professed champion of freedom and democracy in Asia who made a futile
show of atomic force through the movement of the Seventh Fleet in the
Indian Ocean and demonstration of a unique spirit of unity of the Indian
people in times of need and of the military might of the Indian Army,
Navy and Air Force to an extent unparalleled in recent history.
We send our felicitations to Bangabandhu Mujibur Rahman and
Abu Sayeed Choudhury, the Prime Minister and the President respectively
of the new Republic who braved the trials and tribulations of this
unnecessary war and the preceding rebellion. We also congratulate the
officers and men of the Mukti Bahini of Bangladesh and of the Defence
Forces of our Union for their bravery, heroism and patriotism. Our hearts
go out in sympathy to the men and women of Bangladesh who had on the
altar of nationalism made unflinching sacrifices on which the new Republic
stands but the architect of all these glorious achievements is our Prime
Minister who with her astute statesmanship and extraordinary leadership
led the nation to victory and added a new chapter to our glorious history.
Inspite of the unprovoked war, India has given ample proof of a

spirit of tolerance and accommodation. Hatred breeds greater hatred and
it ultimately ends in violence. The Prime Minister opened a new era of
friendship and goodwill towards Pakistan by withdrawing all our forces
from Bangladesh by March 25, 1972 and signing a treatly of peace, friend-
ship and cooperation so that the stage may be set for a dialogue between
10. The Government of Bangladesh have proclaimed their basic principles of state
policy to be democracy, socialism, secularism and the establishment of an
egalitarian society in which there would be no discrimination on the basis of race,
religion, sex and creed. In regard to foreign relations the Bangladesh Govern-
ment have expressed their determination to follow a policy of non-alignment,
peaceful co-existence and opposition to colonialism, racialism and imperialism
in all its manifestations, These are the ideals to which India also is dedicated."
Prime Minister in Lok Sabha Debates- Ibid

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Pakistan and Bangladesh for a peaceful settlement of their mutual p

She also invited President Bhutto for a personal dialogue for the se
of other outstanding problems between our two countries and sign
is known as the Simla Agreement on July 2, 1972. India, the vict
ordered unilateral ceasefire on December 17, 1971 and six months la
expressed her readiness to withdraw from all the territories occu
her during the unprovoked war provided that Pakistan agreed to de
the boundary line in Kashmir on the basis of the line of actual c
The basic policy of the Agreement has been stated in different C
the Agreement.11
There was tremendous euphonia in the country in the wake o

sweeping victory in the unnecessary fourteen days' war and
intensified when the civilian Presinent of Pakistan who had on two
occasions in different capacities threatened a thousand years' war
India, came down to Simla for confabulations and if possible,
solution of the outstanding problems between the two neighbour
Prime Minister put up a cool but dignified posture and dealt w
emerging situation with the composure unusual for the leader of
nation. Despite initial hurdles which journalists portrayed as
conflict between the "hawks and doves" in the Pakistani President's
entourage, the Agreement was no doubt signed but the aftermath has not
been characterised by the same spirit of accommodation and goodwill
that had filled the cold air of Simla in June. The future of Indo-Pak
relations remains still a question mark.
Pakistan has not yet accorded recognition to Bangladesh and

President Bhutto declares that without a prior meeting between him and
Premier Mujib, recognition cannot be given. In fact, President Bhutto
reposes enormous faith on his capacity for overcoming recalcitrance even
11. (i) That the principles and purposes of the Charter of the United Nations
shall govern the relation between the two countries.
(li) That the two countries are resolved to settle their differences by peaceful
means through bilateral negotiations or by any other peaceful means
mutually agreed upon between them.
(iïi) That the prerequisite for reconciliation, good neighbourliness and durable
peace between them is a commitment by both the countries to peaceful co-
existence, respect for each other's territorial integrity and sovereignty and
non-interference in each other's internal affairs, on the basis of equality
and mutuaal benefit.
(iv) That the basic issues and causes of conflict which have bedevilled the
relations between the two countries for last 25 years shall be resolved by
peaceful means.
(v) That in accordance with the Charter of the United Nations, they will
refrain from the threat or use of force against the territorial integrity or
political independent of each other."
Statesman, July 5, 1972.

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of unconquerable hostiles. Prime Minister Mujib retorts that he can talk

to Bhutto only on a footing of equality, and recognition must precede any
such confrontation. Though Bhutto appears to have mellowed down a
whit in recent times, by his own admission, he prevailed upon China to
veto in the Security Council the resolution recommending admission of
Bangladesh to the United Nations, until the ninety thousand prisoners of
war held in India at the instance of the Government of Bangladesh, are
released. Two resolutions moved in the General Assembly recommending
to the Security Council admission of Bangladesh links up the two issue
which are not acceptable to the leaders of Bangladesh.12 As India stands
pledged to the continuance of both Pakistan and Bangladesh as sovereign
states, non-recognition of Bangladesh by Pakistan may continue to create
an area of misunderstanding between India and Pakistan and non-admiss?on
of Bangladesh to the United Nations on the ground of the prisoners of
war may embitter India's international relations as the prisoners of war
are held on the Indian soil.
India has withdrawn all her troops from Bangladesh by March 25,
1972 in pursuance of an agreement between the two countries but the
withdrawal of our troops from the areas occupied in Pakistan in course of
the war operations of 1971 had been delayed by lack of agreement between
the two commands on "the line of control resulting from the cases-fire of
December 17, 1971" in Jammu & Kashmir particularly in respect of a
small territory called Thako Chak measuring over three square kilometers.
This obduracy of Pakistan keeps the spirit of conflict alive and obstructs
implementation of the Simla Agreement in full.13
12. "There could be no negotiations with Pakistan as long as it did not recognise
the reality of Bangladesh. How can we sit across the table with anything less
than the equal status ? Pakistan must recongnise the sovereignty of Bangladesh
and thus create favourable conditions for negotiations on the basis of sovereign
equality and national dignity.
"The world community should not play politics by haggling over our admission
to the U.N. The membership question could not be linked with the release of
Pakistani prisoners of war". - Abu Sayeed Choudhury's address to the members
of Indian Parliament.
Statesman 1-12-1972
President Bhutto says.
"Recognition of Bangladesh was in the interest of Pakistan and that
was the only way of forging links with what was once the eastern part of the
country but timing must be left to us. We cannot be badgered on this."
Statesman 5-12-1972
13. ''Both Governments agree that their respective hands will meet again... for the
establishment of durable peace and normalisation of relations including.. .a final
settlement of Jammu and Kashmir".- Last Para of Simla Agreement.
"The Simla Agreement between Pakistan and India had given a new lease of
life to the Kashmir issue."- president Bhutto's speech at Hyderabad (Pakistan).
Statesman August 1, 1972.

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Talks of resumption of hostilities have been renewed on either side

and our policy makers have repeatedly underlined the state of India's
preparedness even though the two signatories to the Simla Agreement have
frequently asserted that they envisage a continuing period of peace
and good neighourliness. President Bhutto, though often volatile and
unpredictable, is at times an incarnation of sweet reasonableness and as such,
the Indo-Pak relations will stand on a solid base of peace and goodwill,
if he adheres steadfastly to his professions made to Mr. Waltej Schwartz of
the Guardian, London. "Pakistan's relations with India from narrow
point of view has a significance more immediate than that of Bangladesh
which was a thousand miles away. India was its immediate neighbour."
Our Prime Ministîr is no less cognisant of the need for good relationship
with Pakistan for she also says, "It is my hope that the implementation of
this (Simla) Agreement in the spirit in which it was made, will close the
25-year-old period of Pakistan's hatred of India, and that both countries
will become good neighbours."
Continuance of good neighbourliness between India and Pakistan
depends on the continuance of civilian rule in Pakistan and it should be
India's constant endeavour to strengthen the love for democracy, freedom
and human rights among the people of Pakistan through all available
means, measures and methods. Quick solution is quackery and a solution
with permanent impact is expertise.
II
India had two solid achievements to her credit on the eve of the
Silver Jubilee year of her independence. She scored the first ever victory
in a war since independence by defeating Pakistan in December, 1971 and
the Prime Minister succeeded in extracting the first no-war declaration
from the President of Pakistan who had repeatedly warned India of a
thousand-year war. This created a very congenial atmosphere for the
celebration of the Silver Jubilee of the country's independence.
The Prime Minister had very rightly decided that the year must be
celebrated by the grant of a political pension to those freedom-fighters of
the country who are fortunately still alive and the award of 'tamrapatras* to
a number of selected fighters as an humble token of the Nation's recognition
of the distinguished service rendered by them in the cause of national
freedom. These were belated steps no doubt but the honour done to
"On the Thako Chak dispute which has held up delineation, I am willing to
trade this stretch for something in exchange. Such a quid pro quo will enable me
to go back to my people and say 'Alright if we had to give in some territory
where we were before December 17, Indians gave us something where they were
before Dec, 17," - Bhutto's interview with .Guardian, London.
Statesman, 5-12-72

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THE CONSTITUTION ANĎ CONSTITUTIONALISM iM INDIA 21
them was intended to inculcate among the leaders of today a spirit of

dedication to the goal of national reconstuction. If the leaders of yester-
day had brought political independence for the country, those of today
must be wedded to the need for economic and social independence, for
independence is not desired for the sake of independence; it merely creates
situations, circumstances and facilities for ushering in for the common man
an era of prosperity in an egalitarian society bereft of wide disparities in
the possession and distribution of wealth. During this quarter-century the
country implemented four Five Year-Plans and strove to reduce inequalities
with a view to laying the foundation for the establishment of a socialist
pattern of society or a cooperative commonwealth or democratic socialism
but the results were not commensurate with the efforts made. As Smt. Indira
Gandhi writes "Our own unvarying concerns have been two : to safeguard
our independence and to overcome the blight of poverty."
Consequently the Government of India have in recent years awakened

to the need for implementation of the Directive Principles of State Policy
which had so far remained as "moral homilies" in the Constitution.14
Smt. Indira Gandhi, the Prime Minister received an unexpectedly magnifi-
cent mandate from her people for the implementation of these principles.16
The Fourth Five-Year Plan prepared in 19 66 has been changed thrice and
the approach to the Fifth Plan is in the process of final formulation. In
this critical hour of India's preparedness to "abolish poverty" a large slice
of our national income is compulsorily diverted for the maintenance of
internal peace and external security on account of emergence of fissiparous
and divisive forces among the people and recalcitrance of our neighbour to
restore amity and cordiality as an ultimate and inevitable sequel to the
laudable policy initiated by our Prime Minister at Simla in July last.
14. As Professor Andrews says,

''Some Constitutions may also be given prospective functions. They may
articulate the ideals or the intentions of the communities, they serve. Some
Constitutions describe social or economic aims that are still beyond the grasp
of the community. The Indian Constitution does this in portraying the Indian
economy as socialist though implementation of this provision is deferred for
fear its initial effect would be economic disruption."
W.G. Andrews: Constitution and Constitutionalism
(Indian edition 197, Page 25
15. "There is a more mature awareness of the forces and compulsions of our age and
these principles have come to form the essential elements of a national prog-
ramme accepted by virtually all sections of our people, even though there are
differences of interpretation regarding tactics. Then massive majority with
which the Congress Party was returned to power in the fifth General Election
in 1971 and in the State election in 1972 is an indication of this,
India and the World by Smt. Indira Gandhi in Foreign
Affairs Quarterly, New York, October, 1972.

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22 THE INDIAN JOURNAL QF POLITICAL SČlÉNCl
From the days of Harrington, economic basis of politics has been

accepted as a categorical imperative. Even philosophers of democracy
say that without economic democracy, political democracy is unrealisable.
When our Government was striving to ensure a solid economic foundation
for our democratic superstructure in order to make- the processes of
democracy meaningful, these setbacks have left the nation with no other
alternative than to put security before prosperity. A prosperous India is
an anathema not merely to our immediate neighbour who is ostensibly
hostile to us, but also to some of our professed friends who make demon-
strative declarations that India is the largest democracy in the world and if
democratic government fails in India, it may end in its failure in the
liberated countries of Asia and Africa.
Democratic Government with its scale and magnitude in India is a
unique experiment in the world. Many political philosophers were of
opinion that democracy is not suitable for a country of continental
dimensions with an enormously large population. It was their apprehension
sustained by many others later that with our appalling poverty, expanding
population, extensive illiteracy and multi-dimensional composition of the
people, India may relapse sooner or later to an autocracy exercising
arbitrary powers. As India has belied their misapprehensions, situations
are created in which democracy in India may face foul weather and
ultimately collapse.
Continuing tensions and emergencies are not conducive to the operation
of democratic processes. The Constitution of India has made provision
for normal and emergency government. India proclaimed national
emergency under Article 352 only twice during the last twenty-three
years, once in 1962 on the occasion of the Chinese aggression and once
again in 1971 when Pakistan made an unprovoked attack on us
In 1971, political wise-acres recommended amendment of Article 352
with a view to proclaiming national emergency in specified areas of the
country to counteract internal subversion engineered by certain poliiical
forces with active assistance and support of foreign pewers and Pakistani
aggression removed the necessity for this ominous exercise. For this,
a climate of uncertainty prevails in the land and neither the Government
nor the people look forward to the Tomorrows with confidence
Democratic processes are being short circuited and the people are
becoming roconciled to the shift of emphasis from the legislature
to the executive with a hope that a stronger executive may repel the
forces of aggression threatened to be unleashed by China and Pakistan.19
16. (a) "From Rousseau to the present time Constitutional emergency powers have
been taken to be largely limited to executive action. Indeed, they have been
looked upon as extension of this power."
C.J. Friedrich: Constitutional Government and Democracy
(Indian Edition- 1966) Page. 585.

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trié Constitution and constitutionalism ìk india ¿3
The largest democracy of world is obstructed in her functioning and this

has not created any sensation in the so-called arsenals of democracy. It
may be that India shall have to go it alone but it cannot be helped, if the
security and territorial integrity of the Union are to be safeguarded.
The Constitution of India was framed on a philosophy of liberalism, and

democracy was its functional manifestation.17 The Rule of Law was sedulously
nourished and a free, impartial and independent judiciary had been set up
not only to uphold the Rule of Law but also to mediate between the govern-
ment and the people and among the organs of government inter se . 18 As
Professor K. Lowenstein says, a Constitution is either a suit made to meas-
ure to be actually worn or a ready-made suit which is not worn but hangs
in. the closet or it is not a suit at all but a fancy dress or a mere cloak. "A
Constitution is either normative, nominal or semantic". The Constituent
(b) "We are inclined to think that by a strong Centre is meant a strong executive
That is a wholly erroneous conception. In the centre there is the Parliament,
the Executive and the Judiciary. Make all the three strong but not one
at the expense of the other two, the executive at the expense of the judiciary
or legislature". Constituent Assembly Debates. Vol. IX. Page 225
(20 August 1949) H.V. Kamath
17. Commenting on the Objectives Rrsolution movod by Pandit Jawaharlal Nehru
in the Constituent Assembly,
Sri M.R. Masani "supported the clear rejection contained on the resolution
of the existing social structure and the gross inequalities prevailing in the country.
As a democratic socialist who felt tjiat democracy needed to be extended from
the political to the economic and social spheres, he welcomed that resolution
because it had the content of. economic democracy. He commended the
resolution as a refutation of the argument sometimes put forward that far-
reaching social and economic changes could not be made unless individual liberty
and democracy were first destroyed and that only an all-powerful State could
push the programmes through. The resolution envisaged social justice in the
full sense of the term but it worked for these social changes through the
mechanism of»political democracy and individual liberty."
Alladi Krishnaswmi Ayyar felt that the expression, "Justice, social economic
and political" while not committing the country and the Assembly to any
particular form of polity coming under any specific designation, was intended
to emphasis the fundamental aim of every democratic state.
B.R. Ambedkar expressed his disappointment with the content of the
resolution; he expected in it a clear enunciation of the doctrine of Socialism."
"The Framing of India's Constitution : A study" By B. Shiv Rao, pp. 125.
18. "Under our Constitution, the State is a seli-regulatory machinery, it nas tnree
major instrumentalities, namely the legislature, the executive and the judiciary.
One makes law, the second administers it and the third decides the disputes.
It is therefore the constitutional duty of the judiciary, one part of the State to
correct the other parts, if they go wrong. If we look at the problem from this
perspective, there is no question of complexes or conflicts. Each does its duty
in the allotted field for the common good of the country."
Address of Chief Justice K. Subba Rao to the Delhi High Court vide
Biography by V.D. Mahajan, p. 78.

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24 THE INDIAN JOURNÀL OF POLITICAL ŠCIÉkČÉ
Assembly of India intended and the government of India accepte

Constitution of India as neither nominal nor samantic, but as a norm
system enjoining upon all functionaries under it to pay due attention
smooth operation in conformity with the requirements of social engine
in the country. Because of stresses and strains, tensions and emergen
the Constitution is being imperceptibly metamorphosed from a suit
is "made to measure to be actually worn" to one to be placed in
closet till the circumstance change and normal functioning of democ
processes is restored.
There are certain accepted modalities of constitutional chan

Conventions, practices and usages and judicial interpretation are meth
which influence the actual working of the constitutional system wit
effecting any textual change in the phraseology of the Constitution. W
real changes are obstructed by the Constitution or the Constitution obstruc
the operation of social dynamics, the text of the Constitution n
amendment. To accommodate the militant urges of the people at a tim
the Constitution may be amended to overcome the danger of a consci
revolution and this is the position in India to-day. From the days of
Paine, constitutional jurists have oscillated between the merits of
rigid or a too flexible Constitution, but there is no gainsaying the fa
that neither the fundamentals of a political edifice should be too viol
changed nor should it be allowed to continue unhindered if it stifles
aspirations of the nation. Pandit Nehru therefore said "while we
this Constitution to be as solid and as permanent a structure as we
make it, nevertheless there is no permanence in Constitutions. If you m
a thing rigid and permanent, you check nation's growth, the growth
living, vital and organic people. But in any event we should not as som
other great countries have, make a Constitution so rigid thai it canno
easily adapted to changing circumstances."19 Almost by way of a r
Professor C J. Friedrich says, "A firm (rigid) Constitution seek to prov
effective safeguards against what one might term majority tyranny.
seems for that reason better adapted to a community which is not firm
rooted in tradition, or one in which the people are deeply divided
religious, racial or class conflicts."20 However the final arbiter of a nati
destiny is not the Constitution, it is the function of the people to determin
under what type of Constitution they should live. No Government
possibly allow an emergency to overtake the nation only to satisfy th
idiosyncrasies of a few who hold the Constitution superior to the aspirat
of the people.
19. Constituent Assembly Debates, November 8, 1948, Vol. VII, Page 322.
20. C.J. Friedrich- Constitutional Government and Democracy (Indian Edition
1966) p. 139.

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TUE CONSTITUTION AND CONSTITUTIONALISM ]N INDIA 25
III
Emergencies arise not merely for military contingencies; internal

tensions in economic and political domains do also create emergency
conditions which hinder the normal working of power relations.21 Military
situations on our North Eastern and North Western borders continue to
be tense in a way from the day India secured her freedom and more parti-
cularly from the date of Chinese - aggression and no one can point an
accusing finger towards India that she did not do anything to normalise
her relations with her neighbours. Economic tensions are surreptitiously
destroying the material health of the country and symptoms of the disease
have been noticed in the social and political frame-work. A step was
taken in 1969, of course consciously, without calculation of consequences
which makes the Bangalore session of the A.I.C.C. almost a dividing line
in the history of the constitutional evolution of India. Though born and
brought up in luxury and affluence, the Prime Minister like her illustrious
father felt inclined probably on account of her British and Continental
education and more for her familiarity and acquaintance with the economic
conditions throughout the world through her tours with her father, to present
a few "Stray Thoughts" to the Congress Working Committee at Bangalore
so that the party may issue directives to its Parliamentary wing for
remoulding the economic organisation of the country.22 It was a chance
coincidance that in the same Bangalore session the Congress had to find
out through its Parliamentary Board a candidate for the office of the
President of India. Had not Dr. Husain died in May 1969, the "Stray
Thoughts" would have remained confined to economics and would not
have impinged on politics. Those who conscientiously opposed her
economic thoughts, most accidentally oblivious of consequences of their
action, also stood opposed to her in the choice of a candidate for election
as President to fill up the vacancy caused by the unfortunate demise of
Dr. Zakir Husain. That economics and politics are very much interrelated
was re-established at Bangalore. Events moved in quick succession and
21. "The wording 'emergency* has not been defined anywhere... The word 'emergency'
is so fluid and is of such a nature that you cannot possibly define it. It depends
upon a particular executive to say whether an emergency has arisen and an
ordinary emergency may soon unnerve the executive of any state." C.A. Debates.
Vol. IX, Page 526. (20 August, 1949)
22. Note on Economic Policy and Programme by Prime Minister Mrs. Indira Gandhi
presented to A.I.C.C. session at Bangalore in July 1969. It begins with: "The
time has come to restate our economic policy and set the direction in which we
have to move to achieve our goal. This has become all the more necessary in
view of doubts that have been raised with regard to our intention and our
willingness to take the hard and difficult steps which are necessary. The Congress
has always championed the cause of the weaker sections, minorities and the
under-privileged. This should continue to be the policy of the Congress."

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¿6 THÈ INDIAN JOÚŘNAL" ÓF POLITICAL SÓIENČÉ
these are recent history and need no elaboration. Bangalore can easily be
described as the starting point of a silent revolution which may either usher
in a millenium or spell a disaster for the country but with the Prime
Minister's firm grip over the nation and its problems one may be justifiably
optimistic about the ultimate outcome.
The economic consequences of Bangalore have been far-reaching.

The country has opted for socialism, and the road to it is being paved by
restricted rights. Constitutionalism, as it was accepted in the Constituent
Assembly and understood for the last twenty-two years is in a state of
flux. In order that the advent of socialism may not be delayed, the political
consequences of Bangalore have been more profound. Its immediate
reaction was reshuffling of the Cabinet, vacancies in high and complemen-
tary offices, amendments to the Constitution, dissolution of Lok Sabha
and mid-term election and restoration of political stability in the country.
The unfortunate conclusions drawn from the fourth General Election
tempted many political prophets to forecast the doom of the Congress and
the fall of democracy in India but Bangalore made 1967 a forgotton chapter
in history, and the country is pulsating with buoyancy and enthusiasm
on the future of democracy in India. Political stability and instability
are inter-changeable terms as the ultimate outcome of either may be the
same. Continuing instability may throw up a leader who may like the
"Man of destiny" promise a glorious future tò the country and there may
be too great concentration of power in bis hands.23 Great stability may
create leader who may kick the ladder with which he comes to the top and
the charisma of his personality may silence the critics, lurking around the
corner. India is fortunate in having as her "Man of Destiny" a person
who has been born, brought up and nursed in an atmosphere of democracy
and has inherited a legacy of sufferings and sacrifices for which too great
instability did not shake the nation under her stewardship and too great
stability may not expose the country to dangers of tyranny.
Political and economic emergencies have taken the wheels of the

Constitution off the rails to some extent and it is desirable to put them
back on the proper track so that the Constitution of India may continue
to ensure the type of constitutionalism which it was intended to promote.
If the choice of a candidate for the office of the President produced

such reverberating echoes in 1969, cannot history repeat itself? The
country should therefore give a new look to the question of election of the
23. As Professor Andrews says "A leader may appear especially in troubled times
who seems to bave such extraordinary wisdom and competence that the comm-
unity prefers to strike the fetters of constitutionalism from his talents." Constitu-
tion and Constitutionalism (Indian Edition 1971) p. 12

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ŤHÉ CONStlTÜTION AND CONSTITUTIONALISM IN INDIA 2?
President, position of the Yice-President and the problem of succession to

the Presidency. Presidential elections between 1950 and 1967 did not create
even a ripple in the country. The Congress with its monolithic character
and numerical predominance as a political party, merely nominated a '
person and he was safely lodged in the Rastrapati Bhavan. It is only
when the Congress lost its predominance in the Fourth General Election
held in 1967 that the election of the President in May, 1969 revealed
unanticipated dimension. In 1969, all opposition parties except the Left
found a candidate in Sri K. Subba Rao, the outgoing Chief Justice of
India and the Congress naturally had is own nominee for the Office.
Though it became a hotly contested election the results were not very
much unanticipated. There was unfortunately a division in the Congress
Parliamentary Board in regard to the choice of its nominee in 1969 and
this division had a tremendous impact on the subsequent political history
of India. The Speaker of Lok Sabha who was the Congress nominee
resigned his office and soon after the choice of the Congress Parliamentary
Board was known, the Vice-President who was acting as President on
account of the death of Dr. Zakir Husain also tendered his resignation to
take part in the election for the office of the President as an independent
candidate. The framers of the Constitution could not anticipate simultan-
eous vacancies in the offices of the President, Vice-President and the
Speaker of Lok Sabha with the result that there was no Head of the State
and no one to preside over meetings of Rajya Sabha and Lok Sabha,
if they chose to meet in a session. Parliament post-haste enacted the
President (Discharge of Functions) Act 1969 and made the Chief Justice of
India or in his absence, the senior-most Judge of the Supreme Court third
in the order of succession. Constitutionalism received a severe jolt on the
occasion. It is seen from the debates in the Constituent Assembly that
Sri T. Channiah proposed that "Election of President should be held by
rotation by North India and South-India".24 Is it for this that the Vice-
President with Dr. Rajendra Prasad, a North Indian, was Dr. S. Radha-
krishnan, a South Indian and with Dr. Zakir Husain, a North Indian,
Sri V.V. Giri, a South Indian ? Is it for the same reason that the Vice-
President with Dr. Radhakrishnan, a South Indian, was Dr. Husain, North
Indian and with Sri V.V. Giri, a South Indian, Sri G.S. Pathak, a North
Indian ? Was it also for this reason that Professor Habib, a North Indian
was the running mate of Sri K. Subba Rao, and Sri V.V. Giri, a South
Indian of Dr. Husain, a North Indian ? It may not be admitted by those
responsible for these choices that the artificial division of the country as
North and South India influenced their decision but the facts cannot be
repudiated.
24. Framing of India's Constitution Ed. by B. Shiva Rao page 346, and C.A.
Debates, Vol, IV. (23-7-1947) page 784.

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Is it necessary that the parties should nominate their candidate for

the highest office in the land ? While discussing the election of the
Governor, Sir Alladi-Krishnaswami Ayyar observed, "Where a Governor
was elected, there was the danger that he might clash with his ministers
Under modern conditions, elections would have to be fought out on a
party ticket and during election, the party would have to rally round a
leader who would be the presumptive Premier of the State. If the
Governor was also to be elected the question would arise as to whether
the party would rally round the Premier or the Governor ?"26 Is not this
apprehension equally relevant as between the President and the Prime
Minister ? The time has, therefore, come to reconsider the procedure of
the choice of the nominee for the office of President. Dr. K.M. Munshi
rightly suggested that the names of the candidates for election as President
should be proposed by the Legislative Assemblies of not less than four
States and not left to the sweet discretion of the marginal member of the
Parliamentary Board of the Congress or any other party.
Another crucial question for determination is the position of the

person holding the office of .Vice-President at the time of Presidential
election. The Vice-Presidency is modelled on its counterpart in the
U.S.A., yet while the Vice-President of U.S.A. fills up the vacancy in the
office of the President for the remainder of the latter's term the Indian
Vice-President has been given a maximum period of six months only to
hold the office and arrange the election of the next President. The
obvious implication is that he is to succeed his predecessor as otherwise
no self-respecting individual is likely to continue as Vice-President after
the new incumbent comes into office.26 When the ruling party in 1969
25. Ibid, p. 325.

Sri K. Hanumanthaiya said, "If he (President) is elected by the legislatures and
Parliament he is more likely to be a non-party man." C.A. Debates, Vol. VII.
(13-2-48) p. 996
On the contrary, Pandit Nehru said, "It would be completely impractical to
provide that the President would not be a party man. What was required was
that after his election the President should function with complete impartiality
whether he was a party man or not." B. Shiva Rao - Ibid, p. 353.
26. Mr. Mohd. Tahir moved an amendment in the Constitutent Assembly as
follows :
"If the office of the President becomes vacant by death, resignation, removal
or otherwise the Vice-President shall act as the President for the remaining term
of office in which the vacancy so occurs". Moving it he said "Parliament and
the country as a whole will think of selecting the best two men of the country
to be the President and the Vice-President. Therefore, in all fairness, I am of
the opinion that in case of vacancy in the office of the President, the Vice-
President in office should automatically be the President."
This amendment was rejected by the House. C.A.D. Vol. VII. (28-12-48),
P. 1086.

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TUE CONSTITUTION AND CONSTITUTIONALISM IN INDIA 29
choose a person other than the Vice-Pres:dent acting as President he

naturally resigned and this was not first incident of its kind. K* Iswar
Dutta writes in his biography of Dr. Radhakrisnhan that he had declined
to stand for the office of the Vice-President in 1957 on the expiry of his
term as such and it is only because of the persuasion of the Primé Minister
through the present Prime Minister that hs accepted a second term only
when his own President continued in office. He would have probably
declined the honour of a second term had some one else been elected
President in 1957. Dr. Husain also declined a second term and made a
categorical statement in the Rajya Sabha in 1967 to this effect. Had
it not been the end of a term both of them would have probably resigned
had they not been nominated for election as President, Shri Giri was at a
disadvantage as he was in the middle of his term. The dishonour that
was proposed to be heaped upon him by the Congress Parliamentary
Board was avenged by the legislators of India who elected him and not
the nominee of the ruling party as the President of India. Both by
convention and by implication the Vice-President is an inevitable nominee
for the office of the President when there is a casual vacancy and this
difficulty can be obviated if India adopted the practice of the U.S A. and
makes the Vice-President in case of a casual vacancy, President for the
remainder of the term ; for no self-respecting Vice-President will admit
that he is fit to be President for only six months in the maximum and no
more. It is the choice of a candidate for the office of the President that has
been responsible for the silent revolution through which the country is
passing for the last two years and the series of unhappy experience with
the Presidential election enjoin upon the rulers of the country to think of
amending the Constitution. The President should not be the nominee
of a party òr a coalition of parties. Parties may file nominations on behalf
of their candidates before the Election Commission and it is only when a
candidate's nomination is approved by the Legislative Assemblies of say not
less than one-fourth of the States in India that he should be accepted as
a candidate for election as President. Again there should be no election
of a new President in case of a casual vacancy. The Vice-President
should be treated as the President in reserve for the full term.
Another question which deserves serious consideration is succession

to the office when the two offices simultaneously fall vacant. In
U.S.A. it is the Speaker of the House of Representatives who is third
in the order of succession but Parliament by enacting the President
(Discharge of Functions) Act, 1969 has made "The Chief Justice or the
senior-most Judge of the Supreme Court of India available" third in the
order of succession. That is probably in accordance with the convention
that has been set in the States of India where the Chief Justice of the
High Court succeeds the Governor in the cjse of a casual vacancy.

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Succession to the office of the Governor by the Chief Justice was suggested
by the Drafting Committee in the Constituent Assembly in order to
eliminate the proposal for the appointment of a Deputy Governor,27 but
there is no executive or judicial justification behind such an arrangement.
The office of the President is quasi-political as he has to take momen-
tous decisions "either directly or through officers subordinate to him"
which may be of serious political impart and all the decisions taken by him
are subject to judicial review by the Supreme Court. If the Chief Justice
of India as the acting President takes such decisions he is immobilised
as the Chief Justice from playing his full role on the Bench. Mr. M.
Hidayatuallah had actually faced this difficulty by assenting to the Bank
Nationalisation Act which was placed for judicial review in the Supreme
Court after he returned to the Bsnch from the Rashtrapati Bhawn
The political importance of the office of Governor is not of similar
consequence as that of the President who has to take many graver
decisions of political import. A better method is to ask the senior-most
Governor to act as the President, his place in the State being taken by
the Chief Justice of the State.28 This was the convention set for filling
up casual vacancies in the office of the Governor-General of Iridia.
The Prime Minister suffered a number of indignities simply because

of the nomination of a candidate for the office of the President. This
led to the great schism in the Congress, acute political bitterness among
colleagues, loss of parliamentary majority, dependence on the good-will
of the opposition and finally dissolution of Lok Sabha. It speaks of
tremendous courage and an indomitable will of Shrimati Gandhi that
she could steer clear of the difficulties surrounding her but this is also a
warning to others to have a fresh look at the Constitution so that no
future Prime Minister may have to undergo the same trials and tribula-
tions through which the Prime Minister has passed.
IV
"The Stray Thoughts" not only produced the schism in the Congress
following nomination of the party candidate for the office of the President,
it also brought about emergency Conditions in the national economy
which not being direct concomitants of the political situation have acquired
27. Shiva Rao- Ibid, P. 393.

28. Sir B.N. Rau had suggested in his Memorandum on the Union Constitution
in the event of the absence of the President or of his death, removal from
office or incapacity to discharge his functions, such functions should be
performed by a Commission consisting of the Chief Justice of the Supreme
Court and the presiding officers of the two Houses of the Union Legislature.
There was no proposal for a Vice-President. Ibid, Siava Rao, p. 357,

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TtíE CONSTITUTION AND CONSTITUTIONALISM IN INDIA 31
a degree of urgency and prestige which have produced tremendous

political consequences and if such a state of affairs continues unhindered
the silent economic revolution in India may be transformed into an
actual revolution involving clash of opinions between the government
and the governed. The "Stray Thoughts" of the Prime Minister presented
at Banglorewere innocent by themselves. Every one in the country
including the Prime Minister is entitled to cherish his own economic
ideology and given opportunity he is competent to translate it in his
own sphere in practice. With sympathies for the aspiration of the
explosive youth who showed symptoms of revolutionary violence the Prime
Minister naturally felt that a new economic system based on the
elimination of tremendous inequalities between the rich and the poor,
embodying principles of economic justice and egalitarianism and assuring
a large volume of employment, should be establised at all costs and if this
transformation is inordinately delayed, the impatience of the people may
find mainfestation in unanticipated channels.29 She felt that the time was
ripe for making a beginning and with the machinery of government in her
control she naturally thought of moving faster than before. She made
a rapid survey of the environment and circumstances surrounding her and
discovered that though the Preamble to the Constitution and Art 39
in Part IV dealing with Directive Principles of State Policy provided
the groundwork for a socialistic system there were judicial decisions
and other provisions of the Constitution which stood as barriers on the
road to socialism. After this discovery she started clearing the deck for
the new economic system to operate and when she felt thwarted in her
endeavours by the political complexion of Parliament she advised
dissolution of Lok Sabha and a fresh election. The Prime Minister in
her broadcast to the nation on the day she advised dissolution of Lok
Sabha said :
"There comes a time in the life of a nation when the Govern-

ment of the day has to take an unusual step to cut through
difficulties in order to solve the pressing problems with which
the country is beset. The present is such a time.
29. "Before we sign this Constitution, we should see that we do not sow seeds of
a bloody revolution . Only if revolution is meant to be avoided, we should
let the door remain open for coming generations ; if they ever so desire to
socialise all the vested interests and all means of production in the country.
If we shut the door, the youth of India will rise and knock at the door and
smash it and the result would be a bloody revolution. We should make it
possible in future for the Parliament to socialise all property and all means
of production without being compensated for." Mahavir Tyagi in C.A.
Debates, Vol. VII. (9-11-48) P. 361.

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"We are concerned not merely with remaining in power but

with using that power to ensure a better life to the majority
of our people and to satisfy their aspirations for a just social
order
"Justice- social, economic and political - which is the basis of

our Constitution, is yet a goal to be fought for and attained.
Our people are rightly impatient in their ardent desire for a
speedier and more resolute advance towards this goal.
"With the division in the Congress; we lost our party majority

although throughout we have retained the confidence of Parlia-
ment. The challenge posed by the present critical situation can
be met only by the proper and effective implementation of our
secular socialist policies and programmes through democratic
processes.
"Power in a democracy resides with the people. That is why

we have decided to go to our people and to seek a fresh man-
date from them".30
The hostile forces which dubbed her undemocratic for clinging to power
even after loss of majority by the Great Schism started attacking her when
she sought to secure a majority by appealing to the people which was a
Prime Minister's constitutional prerogative in a parliamentary democracy on
the ground that she advised dissolution without consulting the opposition,
a demand not consistent with the ethics of Cabinet Government. If in the
mid-term election she could return to Parliament with about three-fourth
majority she naturally took it as a mandate given to her by the people
to move faster on the road to Socialism by demolishing the judicial and
constitutional hurdles as her economic professions were fairly widely known
to the public.
She had two well-known hurdles. One was Supreme Court's decision
in the Golakh Nath case by which Parliament was deprived of its right to
amend the Constitution and more particularly the part dealing with Funda-
mental Rights which according to the Court were transcendental. The
30. The communique issued from Rashtrapati Bhawan announcing dissolution of

Lek Sabha contained the following : -
•The sole consideration for making this request was the Government's desire
to seek a fresh mandate from the people to enable the Government to effec-
tively implement the socialist and secular programmes and policies."
Statesman, dated 27-2-70

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other hurdle lay in a series of judicial decisions on the Fundamental Right

to Property which if allowed to remain as before may authorise the Court
to impugn all social welfare legislations as unconstitutional and inoparative31
Both the hurdles have to be broken if the country is to secure socialism.
The first hurdle has been removed by the Constitution (Twenty-fourth
Amendment) Act 1971 and the second by the Constitution (Twenty-fifth
Amendment) Act, 1971.
The Constitution (24th Amendment) Act, 1971 has evoked serious
criticism from many quarters and it is before the Supreme Court for judicial
review. To avoid the charge of contempt of Court it may not be desirable
and also advisable to discuss here the provisions of the Act. As students
of political science we ought to realise the basic postulates of the apparent
ideological conflict which underlies this piece of organic legislation. Many
are of opinion that the majority judgment of the Constitution Bench of
the Supreme Court in Golakh Nath case in 1967 undermined the sover-
eignty of Parliament and placed judge-made law at a higher pedestal than
parliamentary law. They asked, where does sovereignty lie, in Parliament
or in the Supreme Court ? Many critics of the Twenty-fourth Amendment
Act ask the counter-question, which is superior, the rights of the individual
or the authority of the state ? By changing the language of the question,
they further ask, should the actions of Parliament be subject to review by
the judiciary or is every law made by Parliament ipso facto valid ? These
questions confuse the average citizen but pose a challenge to the lawyers,
politicians, judges and political scientists.32 Nothing in the world is
transcedental, far less a Bill of Fundamental Rights. It is not necessary for
31. Arun Chandra Guha said in the Constituent Assembly :

"Every right carries with it some obligations; without obligation there cannot be
any right. So it is no use taking shelter behind the plea that the Fundamental
Rights cannot be absolute. All the rights that have been mentioned in the
Fundamental Rights section have immediately been negatived by putting some
provisions and some subsidiary clauses. It would have been better not to have
provided these provisions in the Constitution at all. Then the future Govern-
ment would have been able to act freely in framing the fundamental rights.
So I would ask the House either to put the Fundamental Rights rather frankly
or to omit the chapter from the Constitution so that the Government may
frame the Fundamental Rights according to the needs of the time and not be
handicapped with the task of amending the Constitution which has put some
difficulties on the way."
C. A. Debates Vol. VII (8.1 1 .48) Page 256.
32. (a) "These two Bills (24th and 25th Amendment) Acts are nothing less than an
attempt at a varitable subversion of the Constitution and usurpation of
the right of the Indian people. They constitute an alround attack on the
powers of the President of the Union; the Supreme Court the minorities and
the rights of the citizen to his fundamental freedom and to equality before
the law.
M.S. Masani's Article "Beginning of the End" - Statesman, August 3, 1971

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34 THE INDIAN JOURNAL OF POLITICAL SCIENÔE
the Court to borrow wisdom from foreign jurisprudence nor it is necessary

for their critics to challenge judicial opinion on the strength of the same
foreign legal lore.'Art. 368 by providing the procedure for amendment of the
Constition by Parliament had also vested the constituent power in it or else
the procedure would not have the mention of "introduction of a Bill in
the Parliament.38 It is not merely a procedural article, it is equally a vesting
article. Till 1967, amendment of the Constitution was an express power
of Parliament as recognised by the Supreme Court in Shankari Prasad and
Sajjan Singh cases. If it became an implied power and an organic law
became an ordinary law in terms of Art. 13(2) in Golakh Nath case, it might
have been overruled by the same Court in another case in 1972. It
required statesman-lik'e patience to wait for the Court to take note of
public resentment and overrule its own judgment restoring the pre-1967
position without disturbing the constitutional equilibrium. Late Nath Pai's
Bill was meant to fulfil the limited objective of converting Art. 368 into an
expressly vesting provision of the Constitution.
The complaint from certain knowledgeable circles is that the 24th
Amendment Act has gone very much further than what was warranted
by the decision in Golakh Nath case by ousting the jurisdiction of
the Court from reviewing organic laws relating to the Fundamental
Rights. A Court does not consist of judges who are intellectually
immobile. The judicial mind is not always impervious to changing
ideals and ideologies. Judges are learned men, well-versed in law
and jurisprudence. It is the judges who decided the Shankari Prasad
case and there was nothing to presume that the judgment in Golakh
Nath case was the last word in judicial pronouncement. Even in Golakh
Nath case the Court had partly admitted the position that Parliament's
seventeen amendments were within their competence. Besides, the
doctrine of prospective overruling is not universally accepted. A section of
citizens has therefore a grievance that the powers that be, went beyond the
needs of the situation and not only restricted the legitimate authority of
the judiciary but also circumscribed the constitutional discretion of the
President in making his assent to a Constitution Amendment Bill obligatory.
In a dynamic society Parliament must move with the times and make the
Constitution responsive to the aspirations of the people. In the context of
( b ) "It is said that Parliament is abusing its power of amendment by making too
many frequent changes. If Parliament has power to make the amendments,
the choice of making any particular amendment must be left to it."
Justice Bachawat in Golakh Nath case.
33. ''To locate the power to amend the Constitution in the residuary power contain-
ed in Entry 97, List I would be contrary first to the terms of the Constitution
and secondly would be most unusual and incongruous having regard to the
scheme of our Constitution for the distribution of legislative power".
H.M. Seerbhais Constitutional Law of India
(Reprint - 1968) Page 1094

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TtíE CONSTITUTION AND CONSTITUTIONALISM IN INDIA 35
same dynamsm there was nothing to assume that the judiciary is static and
they are not expected to respond to the urges of the people. The
constitutionality of the 24th Amendment remains to be adjudicated upon
by the Supreme Court but the necessity of all the provisions of the Act is
being commented upon by a considerable volume of public opinion. It is
unfortunate that an imaginary contest of jurisdiction between Parliament
and Supreme Court has been matamorphosed into a confl:ct between
liberty and authority.
It is argued in some quarters that after the Government decided to

bring in socialism in pursuance of the Directive Principles enshrined in
Art 39 of the Constitution, amendment of Art. 31 dealing with Fundamental
Right to Property assumed a degree of urgency and this could not have
been done had not the authority of Parliament to amend the rights in
Part-Ill been restored. In other words the Twenty-fourth Amendment Act
was the prelude to the Twenty-fifth Amendment Act and between the two,
there is almost a casual relation. If the jurisdiction of the Court has been
curtailed in the Twenty-fourth Amendment today, it is being continuously
curtailed as it is evident from the Constitution (First, Fourth and
Seventeenth Amendment) Acts.34 In fact in their judgment in the Golakh
Nath case the Supreme Court complained that these three amendments
dealing with the right to property have been enacted only in order to negative
the decisions of the Court in a number of cases from 1950 upto-date. The
Twenty-fifth Amendment Act will restrict the authority of the Court to a
still greater extent and the addition of Art 31C will practically eliminate
judicial decisions from property legislations.35 It is not my intention to go
into either the ethics or necessity of the Twenty-fifth Amendment Act.
Parliament which is the embodiment of popular sovereignty and repository
of popular will must be credited with unfettered competence and infinite
wisdom to decide if a particular piece of legislation, organic or ordinary,
is in the larger interest of the country. At the same time an individual or
34. (a) From the history of these amendments two things appear viz. unconstitu-
tional laws were made and they where protected by the amendment of the
Constitution or the amendments were made to protect the future laws which
would be void but for the amendments". Extract from Chief Justice
Subbarao's judgment in Golakh Nath case.
(è) "In our country amendments so far have been made only with the object of
negativing the Supreme Court decisions." Hidayatullah J. in Ibid.
35. Article 31 C runs as follows :
■'Notwithstanding anything contained in Article 13, no law giving effect to
the policy of the state towords securing the priciples specified in clause (6)
or Clause (c) of Article 39 shall be deemed to be void on the ground that it
is inconsistent with, or takes away or abridgas any of the rights conferred by
Article 14, Article 19, or Article 31 and no law containing a declaration that it is
for giving effect to such a policy, shall be called in question in any court on the
ground that it does give effççt tp such a policy."

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a group of individuals should not be deprived of the right to enquire from

the Court, if the power vested in Parliament has been properly exercised
and if his or their interests are likely to be promoted by the enacted legisla-
tion.36 Parliam:nt has an avalanche of authority ; the puny individual
wants to save himself from submerge ace with the judiciary as a roadblock.
If there are critics of the Twenty-flfth Amendment Act, this is because the
individual is by this Amendment proposed to be deprived of the guardian-
ship of the judiciary in regard to the public purpose for which his property
is proposed to be acquired or requisitioned and the adequacy of the amount
of indemnity or compensation payable to him. It is presumptuous for any
one to question the bonafìdes of either Parliament or the Government but
it is equally necessary that these bonafìdes should ctand the test of judicial
scrutiny as in all democratic systems the judiciary is regarded as the bul-
wark of individual rights and liberties. For this reason, while moving
Article 31 in the Constituent Assembly, Pandit Jawaharlal Nehru said,
"But we must respect the judiciary, the Supreme Court and the other High
Courts in the land. As wise people, their duty is to see that in a moment
of passion, in a moment of excitement, even the representatives of the
people do not go wrong, they might. In the detached atmosphere of the
Courts, they should see to it that nothing is done that may be against the
Constitution, that may be against the good of the country, that may be
against the community in the larger sense of the term. Therefore if such
a thing occurs they should draw attention to that fact, but it is obvious
that no Court, no system of judiciary, can function in the nature of a Third
House, as a kind of Third House of Correction. So, it is important that
with this limitation the judiciary should function." He added :
"You have decided, .the House has decided, rather most of the
Provincial Governments have decided to have a Second
Chamber. Why has it been so decided ? Presumably they have
so decided because we want some check somewhere to any rapid
decision of the First Chamber, which that Chamber itself may
later regret and may wish to go back on. So, from that point
of view, it is desirable to have people whose duty is to see that
you do not go wrong as àomstimes even the legislature may go
wrong -
"I submit therefore that in this Resolution the approach mad
protects both the individual and the community . It gives fin
36. ''In the absence of a Constitution deeply rooted in tradition, a judiciary

of exercising judicial review will be required if a Constitution in the
sense, of a set of techniques for restraining the actions of government
established. Only through the neutralising and rationalising influenc
judicial interpretation will various interests, groups and classes in the co
be kept sufficiently balanced."
C.J. Friedrich- Constitutional Government & Democrac
(First Indian Edition 1966) Page 236.

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the constitution and constìtutionlism in india 37
authority to Parliament subject only to the scrutiny of th

superior courts in case of some grave error, in case of
contravention of the Constitution or the like, not otherwise".87
Sir Alladi Krishnaswami Ayyar remarked in the Constit

Assembly :
"The great problem in providing for and guaranteeing funda-

mental rights in any Constitution is where to draw the line
between personal liberty and social control. The liberty can
flourish only in a well-ordered state and when the foundations
of the state are not imperilled".88
When the Constitution of India was on the anvil in the Constituent

Assembly, there was no lack of enthusiasm for economic justice. Part IV
dealing with Directive Principles of State Policy was enshrined in the
Constitution but as the Government soon after partition felt that because
of inadequacy of human and material resources, promotion of economic
justice however desirable may not be practicable in the immediate future,
Art. 37 made them non-justiciable. On the floor of the Assembly there
was a heated discussion on the utility of having a body of non-enforceable
and non-justiciable principles in the Constitution. K.T. Shah expressed an
apprehension that this body of non-justiciable Principles whose implemen-
tation depended on the convenience of Government, might in the long un
dilute popular confidence in other parts of the Constitution and
prejudicially affect constitutionalism in the country.39 H.V. Kamath's move
to describe them as Fundamental Principles so that Government might take
them seriously and think of their implementation, was turned down40
Dr. Ambedkar's reply to the debate was interesting. He said 'It is no use
saying that the directive principles have no value. In my judgment, the
directive principles have a great value, for they lay down that our ideal is
economic democracy. Our object in framing this Constitution is really
two-fold, (i) to lay down the form of political democracy, and (ii) to lay
down that our ideal is economic democracy, and also to prescribe that
every government whatever is in power, should strive to bring about
economic democracy".41
Both the architects and engineers of constitutionalism in India are in

favour of socialism and if during the first quarter of our independence no
serious attempt had been made to eradicate poverty and eliminate
37. C.A. Debates, Vol. IX (10.9.49), P. 1196.

38. C.A. Debates, Vol. VII (8.11.1948), Page 336.
39. C.A. Debates, Vol. VII (19.11.1948), Page 479.
40. Ibid. P. 474.
41. Ibid. P. 494.

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38 THE INDIAN JOURNAL OF POLITICAL SCIËNCË
inequalities, the reason lies in the obstructive environmental factor

could not be broken down without the risk of large-scale resentment
state policy. The Supreme Court had observed that Directive Pr
must be subsidiary to the Fundamental Rights and this judicial att
found an echo in the decisions of the Court made from time to time.
This was an insurmountable hurdle in the country's onward march towards
socialism. There is a perpetual contest in history between the liberty of
the individual and the authority of the State.42 This contest is given a
shape through constitutionalism, and conflicts if any, are resolved by the
judiciary. As between the two contenders namely the state and the
individual if the individual has the power to get his rights enforced against
the state with the help of the judiciary the state should also justly be given the
power to enforce its authority not for its own sake but in the interests of
the community at large. If constitutionalism is a broad consensus on the
basic foundations of the social, economic and political systems, if in course
of time the conssnsus changes necessitating corresponding modifications in
the systems, constitutionalism so far accepted must undergo a change.
This is the silent revolution that is going on in India to-day.
The question that arises is who wilî direct the changes 7 In a

democratic order the directing power is vested in the Prime Minister or in
the President according as it is a Parliamentary or Presidential democray.
The Office of the Chief Magistrate is not endowed with inherent powers
to bring about any change be or she likes. It is of course true that the
blueprint for the intended changes is prepared by the party sustaining the
Chief Magistrate and the party is itself sustained by its own following. It
is dangerous to identify the party with the state and if it is done
constitutionalism in course of time is altogether replaced when the state is
formally allowed to exist but the machinery of government is fully controlled
by the party . A party by itself is not an undesirable phenomenon ; it may
so happen that it gets the allegiance of a predominantly large section of
the population. Absolute allegiance from the entire population is not
consistent with democracy and it cannot be ensured without application
of physical force. An individual like Gandhiji evoked universal allegiance
without even a modicum of authority behind him and he cannot be
described as a dictator although he was so described by some people
during his life time. There have been instances in history when unanimity
of popular support was secured with the application of physical force
and those who did so were called dictators. In 1971 a free and fair
42. H. V. Kamath said in the Constitution Assembly,

The utility of a State has to be judged from its effect on the common man's
welfare. The ultimate conflict that has to be resolved is this whether the
individual is for the state or the State for the individual.
C. A. Debates, Vol. VII. (5.11,1948) Page 221

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THE CONSTITUTION AND CONSTITUTIONALISM 1Ň INDIA 39
election conducted with adequate constitutional safeguards has given the

Prime Minister about three-fourth majority. The Prime Minister stands
for a definite ideology and the popular mandate given to her can
unchallengeably be interpreted as the endorsement of that ideology. An
opposition exists in Parliament and it is not prevented with the help of
state power from functioning in a commonly accepted democratic sense.
It may bs necessary to "proscribe procedures and prescribe power" with
a view to fettering constitutionalism to some extent so as to give
an opportunity to her to implement the accepted ideology into practice
and it is unfair to characterise it as undemocratic, unconstitutional or
autocratic.43
Democratic institutions have a prescribed span of life and the

Constitution provides for either its extension or curtailment in accordance
with law. From 1951 upto-date the nation has taken to planning
with objectives mentioned in the Five-Year Plans and successive elections
have worked as occassions for the renewal of the nation's mandate to the
Government of India to successfully implement the plans. If the plans have
not produced the desired results it is not for lack of national mandate but
for the lapses and shortcomings of the administration. The Prime Minister
with her ideology asked for a mandate and it has been given. Whether
she fails or succeeds in her endeavour only time will show. She has
complete discretion in the choice of her team and unfettered freedom to
pick up the tools of her operation. If in spite of this, socialism does not
come nearer she will be blamed, her party will be criticised and her
instrumentalities may be condemned but it is unfair to find fault with her
ideology and motivation when the nation has accepted it without demur.
It is a well-known feature of constitutionalism to suspend some of
its facets and features in times of emergency. They say that democracy
is a fair-weather friend and many of its processes either stop working
or are made to stop for the duration of emergency. Secret sessions
Parliament are assuredly undemocratic but during the Second World War
Ghurchil had many such sessions. National Government operates with-
out an Opposition which is considered the sine quaoon of Parliamentary
Government, yet National Governments were in office in England not only
for the duration of the First and the Second World Wars and sometime
thereafter but also in 1931 which was peace time though with an eco-
nomic crisis. These are instances of short circuit of democratic pro-
43. "Our socialism is not a readymade ideology but a flexible concept.

...Indian socialism is not a negation of democracy but, its fulfilment, and
democracy will be imperilled only in the measure in which we fall through lack
of foresight or want of courage to respond to the aspirations of our people."
Smt. Indira Gandhi Foreign Affairs Quarterly- Ibid.

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40 the Indian journal of řOLfriCAL scienčb
cesses. Was not the Abdication Act 1936 enacted by British Par
with all the three readings completed in one day ? Are there not
instances in India's Parliamentary history 7 If that is so, the
Government of India cannot justly be blamed for controlling,
ting or restricting some of the well-known democratic pract
principles to tide over the psychological crisis discernible in the ec
sphere. It is certainly true that constitutionalism and Rule o
as they were understood in the nineteenth century have been
circumscribed in India for the last few years, but it is worthw
try to resolve the prevailing economic crisis existing in the form o
tatious luxury and grinding poverty" even if it involves some restr
over traditional constitutionalism. In the words of Professor Robert
A. Dahl. 'The People' is an ambiguous phrase. Do these famous
words mean that whenever a majority is discontented with the govern-
ment, it should be free to change it ? If every majority must be free to
alter the rules of government, what is the significance of a Constitu-
tion ? How can a Constitution be more binding than ordinary law ? Is
there no legitimate way by which gtoups smaller than a majority can
receive guarantees that the rules they agree to abide by will be more or less
permanent and will not change at the whim of the next legislature ?
These are difficult questions to answer, and no answers seem to command
universal agreement".44
44. Robert A Dahl : Pluralist Democracy -in the United States (Scientific Book
Agency, Calcutta) P. No. 22.

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THE CONSTITUTION AND CONSTITUTIONALISM IN INDIA

Author(s): SHREE RAM CHANDRA DASH

Stable URL: https://www.jstor.org/stable/41854552

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SHRBB RAM CHANDRA DASH*

Twenty-two years ago in 1950, the Indian Political Science Association

♦ Professor and Head of the Post-Graduate Department of Political Science,

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In this year of silver jubilee of India's independence, every one of us

It is said, 'Religion is the opium of the people'. It is perhaps right.

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If we merely remember them and resolve to imbibe a little of the

Coming so near to the artificial boundary line drawn by the Radcliffe

Pakistan was created by mutual consent and goodwill and the

1. "Successive Governments of Pakistan based the survival and unity of their

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of Jammu and Kashmir, with Iadia. We had given them an inexha

Becauss of her internal policy, Pakistan had knowingly thrown out

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against the refugees leaving them to be mercilessly slained by the Pakistan

India had no interest as to how Pakistan governed her territories and

Religion is not the sole element for constituting a nationality, yet

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India to destruction if we fail to revise our notions in time. The Hindus

The Awami League demanded regional autonomy within the

Former President Yahya asked the genius of democracy to come

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nine months against the Pakistan army.

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administrative systems, she started taking interest in Bangladesh. T

6. Sm. Indira Gandhi said in Washington

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Indian policy of caution, moderation, good neighbourliness and

Presistent and persevering efforts of our Prime Minister to evolve

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3, 1971. Our President proclaimed a national emergency and as

The People's Republic of Bangladesh stands committed to the

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Inspite of the unprovoked war, India has given ample proof of a

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Pakistan and Bangladesh for a peaceful settlement of their mutual p

There was tremendous euphonia in the country in the wake o

Pakistan has not yet accorded recognition to Bangladesh and

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of unconquerable hostiles. Prime Minister Mujib retorts that he can talk

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Talks of resumption of hostilities have been renewed on either side

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them was intended to inculcate among the leaders of today a spirit of

Consequently the Government of India have in recent years awakened

14. As Professor Andrews says,

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From the days of Harrington, economic basis of politics has been

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The largest democracy of world is obstructed in her functioning and this

The Constitution of India was framed on a philosophy of liberalism, and

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Assembly of India intended and the government of India accepte