THE CONSTITUTION OF INDIA by G. N. Joshi, M.A., LL.B., MacMillan & Co. Ltd., London, 1954; xxii + 466 pages
This book seeks to expound the Constitution of India in an historical setting, with the object of enabling students of law and general readers to understand the legal aspects and implications of the Indian Constitution.
The origin and growth of the Indian constitution is rooted in the history of India during British rule. The British came to India to trade early in the 17th century, and by force of circumstances remained to govern the country till after World War II. The British Parliament recognized India's claim to independence on March 16, 1946, and the British government announced on Feb. 20, 1947 its intention to partition the Indian Empire into two Dominions. The Dominion of India came into being on Aug. 15, 1947, when the Indian Independence Act passed by the British Parliament became effective. On Nov. 26, 1949 the constitution was adopted, which established India as a "Sovereign Democratic Republic."
The constitution of India is the longest and the most complex constitution in the world. As published in the Gazette of India, it runs into 250 pages, and consists of 395 Articles and 8 Schedules. A large number of the Articles have provisos, limitations and saving clauses. It contains many elements which in other constitutions are found in statutory rather than in constitutional law. The anxiety of the framers to provide for all possible contingencies accounts for these peculiarities. In form the Constitution is federal, but in spirit it is unitary. In internal structure, it is fundamentally British. It adopts the parliamentary form of executive—the cabinet system —both at the Centre and in the States.We may not be interested in all aspects of the Indian constitution with which the book deals. But a few remarks on some of the basic principles may be useful in forming a correct understanding of the country which has on more than one occasion professed to adopt a policy of "aloofness from power politics" in world affairs.
1. Republican India and the British Commonwealth of Nations
Under the Indian Independence Act, 1947, India was free to decide whether she should re main a member of the British Commonwealth of Nations. Accordingly, she decided on May 16, 1949 to continue her full membership in the Commonwealth, recognizing the King of the United Kingdom as a symbolic head of the Commonwealth. The decision is not embodied in the Constitution, which is republican. It rests on an understanding, and on the unwritten law of the Commonwealth.
Here it seems necessary to explain briefly the status of members of the British Commonwealth: the Dominions. The British Imperial Conference of 1926 defined, in terms devised by Lord Balfour, the Dominions as autonomous communities. With the United Kingdom they are equal in status, in no way subordinate one to another in any aspect of their domestic or foreign affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. Dominion status in its legal incidents is crystallized in the Statute of Westminster of 1931. Thus the King of the United Kingdom is a King of each Dominion separately, in whose name all governmental acts are performed.
In April 1949 a conference of the Prime Ministers of the Commonwealth countries met in London to exchange views on the constitutional issue arising from India's decision to adopt a republican form of constitution. Unanimous agreement was reached to the effect that the Republic of India remains a full member of the Commonwealth and accepts the King of the United Kingdom as "the symbol of the free association of its independent member nations and as such, the head of the Commonwealth." The word "British" before "Commonwealth" was deleted, as it was inappropriate to describe it as British in the new context.
The declaration marks a radical change in the accepted concept of the British Commonwealth. The core of the agreement is that India, which has become a Republic, continues to recognize the King of the United Kingdom as the unifying symbol of Commonwealth association. The new concept of a functionless and merely symbolic kingship accommodates India in the Common wealth without in any way affecting the link between other Dominions and the Crown. The King is not a King of India. He is regarded as the symbolic "Head of the Commonwealth" without any function to perform in relation to India.
2. Federalism versus Unitarism
India is described as a "Union of States." The word "Union" was adopted to facilitate the accession of the former Indian States. Under British rule, India was divided between British India and the Indian States. British India consisted of 9 Governors' Provinces and 5 Chief Commissioners' Provinces. The Indian States were more than 500 in number. They were States in the sense that their territory, sometimes consisting only of a few acres, did not form part of British India ..... British India was under the sovereignty of the British Crown, whilst the Indian States were under its suzerainty. When British India became independent as a Dominion, suzerainty of the British Crown over the Indian States also lapsed. The States were free to accede to the Dominion of India or the Dominion of Pakistan. They all acceded to the Dominion of India, with only half a dozen exceptions.
As a result of the integration, the Indian Union now consists of 29 constituent States, which fall into various categories. These include ten Part A States each headed by a Governor, eight Part B States each headed by a Rajpramkh, ten Part C States each headed by a Lieut. Governor or a Chief Commissioner and one Part D State headed by a Chief Commissioner. Except the Part D State and four Part C States, each State has a cabinet responsible to an: elected legislature. These States are on different levels of development. It was only for the sake of uniformity that it was desirable to describe the units of the Union as States. The phrase "Union of States" may sound impressive, but it is certainly not a true reflection of actual facts.
What is, then, the form of the Indian Union? Constitutions known to history are either unitary or federal. The Indian Union is neither federal nor unitary. It is both. It. resembles as well as differs from other federations:
(1) The Indian constitution is both unitary as well as federal according to the requirements of the time and circumstances. It is designed to work as a federal government in normal times, but as a unitary government in times of emergency. Once a Proclamation of Emergency is issued, the whole system becomes transformed into a unitary system. In other federations there is no such power of converting the federal state into a unitary state.
(2) The Indian constitution contains provisions relating not only to the constitution of the Union, but also to the constitutions of the States. The Constitution of the Union and of the States is a single structure, within which both of them must work.
(3) In most federations powers which are not given to the federal government fall to the States. In other words, the States have the .residuary powers and the Centre has only specific enumerated powers. In India the powers of both the federal government and the State governments are specifically enumerated and the residuary power' is as signed to the Centre.
(4) In other federations the upper chamber generally secures the equality of States of the federating units by allowing equal representation in it of all units irrespective of their size and population. In India the States are not represented in the Council of States on a basis of equality. The representation is based on the population of each State.
3. Legislative Relations between the Union and the States
In India the whole legislative field is mapped out by an exhaustive enumeration of the subject-matters in three Lists in the Seventh Schedule. Briefly stated, the scheme of distribution is this: Parliament of the Union has exclusive powers to make laws with respect to matters which are enumerated in the Union List. The State Legislatures have exclusive powers to make laws with respect to matters which are enumerated in the State List. As regards matters which are enumerated in the Concurrent List, both Parliament and the State Legislatures have concurrent power with a provision for the paramountcy of the Union law; the residue is given to Parliament. This is the only constitution in the world which contains three Legislative Lists and an extremely detailed enumeration. The total number of matters enumerated in the three Lists is no less than 210. The Union List contains 97, the State List 66, and the Concurrent List 47 items.
Internationally India is one State, though it is internally composed of many units. International relations and rights and obligations arising from such relations relate to and affect India as a whole and all the units comprised in India. With a view to avoiding doubt as to whether the subject-matter of implementation falls within the Union List or Concurrent List or State List, specific provision is made in the Indian constitution to the effect that Parliament has power to make any law for implementing any treaty, agreement or convention with any other country or countries, or any decision made at any international conference, association or other body.
Many books have been published so far about the Indian Constitution, but not one of them is as clear as this one by Mr. Joshi.
The author, formerly professor of constitutional law of the Government Law College, Bombay, ably summarizes the basic provisions and principles of his country's fundamental law, and sets them in an historical background. The book is primarily intended to meet the need for a comprehensive text-book for students of law of Indian universities. It is, however, certain to appeal to any general reader interested in India and in "the greatest experiment in parliamentary government." It is concise yet fairly comprehensive, scholarly and judicious in presentation.
The civilization of India is old, but political independence is young. The success of a constitution depends far more upon the manner and spirit in which it is worked than upon its formal provisions. Parliamentary government in India on the basis of adult suffrage, where 85 percent of the population is illiterate, where the economy is shaky, and where the spirit of tolerance and compromise-the very essence of parliamentary government-has not yet become a part of the national character, is a bold step. Whether it will prove enduring, and whether it will consolidate and even generate forces which will transform India into a homogeneous state, time alone will show. — CHIEN-MING CHU
THE LIQUIDATION OF HU FENG & CO. By Lee Hsin-tse China Cultural Service Taiwan, China 1955 40 pages
One of the important happenings under the Chinese Communist regime last year was the purge of Hu Feng and his followers. When the incident occurred, it was played up in the press on this side of the Iron Curtain. In recent months there has also been considerable discussion of it in the form of magazine articles and pamphlets.
Though hardly fulfilling our expectations, the booklet under review represents the most complete account of the Hu Feng affair up to date. Quoting extensively from Communist sources, the author traces the origin of Hu Feng's thoughts back to the 1919 cultural movement launched by Hu Shih. Being a disciple of the late writer Lu Hsun, Hu Feng represented the latent force of liberalism that had managed to survive within the framework of Chinese Communism. His case was not only a personal struggle for power, but a highly political and ideological conflict in Chinese Communist leadership. The author is of the opinion that this case presented a more formidable challenge to the Chinese Communist regime than any other ideological problem, including the thoughts of Hu Shih which had been liquidated earlier. The reason is not far to seek. While the thoughts of Hu Shih are, by their very nature, incompatible with Communism, those of Hu Feng represented an intra-party conflict inherent in Chinese Communism.
According to the author, the thought pattern of Hu Feng is that of the petty bourgeoisie. This is the basic fact the Chinese Reds have had to face. Hu Feng once confessed his ideological blunder in these terms: He "took the revolutionary spirit and stand of the petty bourgeoisie for the revolutionary spirit and stand of the working class, thus overlooking the difference of principle between the two classes of people." Fundamentally, this is the point from which flowed all the discrepancies between Hu Feng and the orthodox Reds.
Most interesting is perhaps the story of the so-called five swords which are the rules of conduct for authors and writers under the Chinese Communist regime. The five swords the Chinese Reds, according to Hu Feng, place on the head of a writer are: (1) the Communist world view, (2) the labor-peasant-soldier alliance, (3) thought reform, (4) the form of a nation, and (5) work for politics.
The Chinese Reds, as Hu Feng pointed out, drew their first sword against a writer the moment they began to force the Communist Weltanschauung upon him. For his part, Hu Feng was dead set against such Communist indoctrination. He compared it to a bayonet pointed right at the head of a writer, stressing that to write at the point of a bayonet was worse than to go to the guillotine. The second sword fell on the writer when the Reds began to forge an alliance among the workers, peasants and soldiers. But Hu Feng did not think that "poetry has much to do with labor and that one must needs go to the masses to be a poet:' The third sword took the form of ideological remolding. In this regard, Hu Feng took the position that inquisition was more repulsive than the firing squad, and that if mankind was ever to survive, the attack on the mind must cease. As concerns the fourth and fifth swords, Hu Feng took exception to the Communist view in no less unmistakable terms. He maintained that a writer has his own personality' and is not just an automaton to be manipulated by politicians for political objectives.
Thus far the Hu Feng affair was the culmination of the thought remolding campaign launched by the Chinese Reds on the mainland over the past years. It developed quickly into a political problem involving practically all the people who had been connected with Hu Feng in one way or another. To those who understand the nature of Communism, this must have been no surprise. As we know, Communism on the. Chinese mainland, as in Russia, is a continuous process of purges without which Communism itself could hardly survive. It seems probable that, for better or for worse, there would be many more people among the Chinese Communist ranks to meet with the fate of Hu Feng in the years to come.
There seems to be no doubt that the data used in the book are on the whole authentic. But it is lamentable that the sources of many quotations are not given. Furthermore, there are some misprints, which fortunately are not serious enough to detract from the value of the study.— T. L. HSIAO