A Comparative Study of the Indian Constitution - Vol. 1

A Comparative Study of the Indian Constitution - Vol. 1

A Comparative Study of the Indian Constitution - Vol. 1

A Comparative Study of the Indian Constitution - Vol. 1

Excerpt

The Indian constitution, says Sir Ivor Jennings, "is impregnated with the idea that law and government are dangerous and ought to be kept in concentration camps." With due deference to the eminent publicist, it is submitted that there is not one iota of evidence in the entire Constitution which lends support to this statement. On the contrary, even a cursory examination of its provisions clearly indicates the primacy of the executive governments established under the Constitution. Sir Ivor himself furnishes the most destructive criticism of his view when he speaks of "the vast powers which are legally vested" in the President of the Union and the Governors of the States. If the Indian Constituent Assembly really distrusted law and government, as Sir Ivor tries to make out, surely it would not have conferred such immense powers on the executive authorities of the Republic. The point is made clear beyond doubt when one examines the Chapter on Emergency Powers which has no parallel in any existing or defunct constitution, apart from Article 48 of the Weimar Constitution. Indeed, these powers of the Union Government are far more extensive than those which can be claimed under the system of estado de sitio in the Latin American States or even under the doctrine of Notrecht which has recently been developed in the Swiss Confederation under the influence of German jurists. Sir Ivor's criticism of the Indian Constitution on this ground has, therefore, no foundation, either in fact or in theory.

Equally untenable is the argument advanced by Sir Ivor that the Indian Constitution "is dominated by a view of constitutional law which most constitutional lawyers now regard as outmoded, a view which derives from the works of Albert Venn Dicey." Whatever doctrinaire views might have been expressed by the members of the Constituent Assembly, the Indian Constitution does not contain any academic theories or political philosophies, apart from "the Directive Principles of State Policy" which, it should be remembered, have no legal force or authority. It is necessary to emphasize in this connection . . .

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