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The Present Constitutional Developments Some Historical Analogies
by Dr A.T. Markose*

Cite as : (1976) 4 SCC (Jour) 14

Government though in existence ever since two or more persons were living according to some agreed rules no comprehensive account had been made of it taking into consideration the defect of normal analysis of governments because of limitations of time and space.1 The capacity of perspective of each writer including the great Aristotle is necessarily weakened by the intensity of contemporary events on the perception of the philosopher. If the legal philosopher of India looked at the present constitutional developments in a total global perspective from the beginning of even the modern era much of the prevailing perplexity about them would vanish.

We need to take only two illustrations. One from England and another from France. In the English conflict between the King and the people, the judges and lawyers sided with the people. The result was that when the notorious Star Chamber which in substance wielded the public power of control over inferior officers of State and the mighty barons (who were also officers of State in the feudal system) fell with the head of Charles I, the machinery of that control over the administration was given to the judiciary as a part of the booty of victory and wielded thereafter largely by the King's Bench. Thus, the ordinary judiciary whose business is to decide disputes between the subject and subject got also the jurisdiction to decide disputes between the administrator and the subject. In other words they got judicial control of administrative action. But note, not the power of judicial review of legislation.

In contrast, in France when the struggle began between the Crown and the people, the judiciary sided with the Crown. When the battle ended, the King lost his head in France also. But the victorious people saw to it that the judiciary was completely contained with its old jurisdiction. All jurisdictions between the administration and the people were reorganised in the form of special tribunals, theoretically independent of the administration and called administrative tribunals with a division of the Council of State at the apex.

It is necessary to point out that this institutional independence in concept of the administrative tribunal from the ordinary judiciary was encouraged by the doctrine of separation of powers. Fascinating to note, this theory made famous by Montesquieu was interpreted in two diametrically opposite ways on both sides of the English Channel. In England the doctrine of separation of powers was construed to require independence of the judiciary from the executive which meant that all judicial powers including judging of the executive should be separated from the executive. In France on the other hand the same doctrine of separation of powers was construed to mean the separate operation of the three branches of government, namely, the legislature, the executive and the judiciary. Each should remain distinct from the others and should have nothing to do with each other. Accordingly, if the administration had a dispute with an individual citizen the ordinary courts should not be given any power to decide it, but tribunals should be created within the administration for that purpose. Thus the theoretical interpretation of the doctrine of separation of powers and the practical decision of the people not to give any of the spoils of the recently won victory against the Crown to the judiciary left the ordinary judiciary in France without any part in the judicial control of administration. Under the Civil Law system no court had power of review over legislation.

Thus, both the nations showed their displeasure in an identical manner. The legislature which we shall take as standing for the people in England presented its ally the judiciary with the booty of judicial control while the people in France punished its judiciary for working against it by not giving such a power.

Something broadly similar is occurring in India within this generation after Independence. In 1950 the Indian Constitution conferred on the ordinary judiciary, the most far-flung powers of both judicial review of legislation and judicial control of administration that could have been imagined. This was a reward for the substantial contribution that Indian lawyers made to the struggle for Indian Independence. But it was also expected that the judiciary and the legal profession will be guided by the historical realities of the situation. Every student of Indian history knows that the zamindars were progressively denuded of their property by a series of tenancy laws during the entire period of British administration in India. The Privy Council decision of Thakur Jagannath Baksh Singh v. United Provinces2 was good law even after the Constitution. It was therefore a surprise that the Patna High Court declared the zamindari abolition law ultra vires the Constitution. Similar disappointment was felt by the common people when the judiciary frustrated the Parliament by a tenacious adhering to a technical judicial convention that once a phrase in a statute or the Constitution is judicially interpreted in a particular manner it should be presumed to be used in that meaning in subsequent amendments also by Parliament. The word 'compensation' is what is hinted at. Even after that word was displaced by the word "amount" the story was only slightly better. The attitude of the judiciary towards the native Princes and their Privy Purses, to the great bankers and their foundation shares and to the successive constitutional amendments showed the same unimaginative approach. Many felt that a good part of the Indian legal profession was almost like the Bourbons, they learned nothing and they forgot nothing.

The solution thought of by the people assembled in their Parliament was exactly on the lines that the French people thought or the English people thought. The powers of judicial review of legislation and judicial control of administration (which are as already pointed out strictly, historically speaking, not part of the normal work of the ordinary courts) are proposed to be taken away from the ordinary judiciary. In fact one should say that the prescription proposed by the government for the diagnosed disease is not as complete as the French one. Article 136, Articles 32 and 226 along with the power of judicial review of legislation are still left in a truncated way, in a very much whittled down manner, with the judiciary.

It is not necessarily inevitable that in the hands of the special tribunals the freedom of the individual should unduly suffer. That has to be seen. But the point made is only that from a historical and comparative point of view, in another 25 years, when the constitutional historian covers the present developments he might find it only of such importance as to mention it in a small paragraph. The first key sentence of such a paragraph might read as below:

In India though the first Constitution of 1950 gave very wide powers to the Indian judiciary, some decisions of that body created a reaction necessitating the transfer of much of such powers from the ordinary court to special tribunals.

Historical imagination, sometimes, is a source of great consolation!

* Dean of Law, University of Cochin. Return to Text

  1. See David Fronkin : 'The Questions of Government', 1974, pp. 5-6. Return to Text
  2. AIR 1943 FRC 29. Return to Text
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