A Comparative Study of the Indian Constitution - Vol. 1

By Sirdar D. K. Sen | Go to book overview

CHAPTER IV
INTERPRETATION OF THE CONSTITUTION

General Clauses Act, 1897 . Lord Simmonds, in the course of his judgement in Attorney-General of Australia v. Regina, ( 1957) 2 All. E.R. 45, observed that "in a federal system the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive." It is submitted that this statement is not entirely accurate. The primary function of the judiciary under a federal constitution is to maintain the delicate equilibrium of the powers of governance distributed between the centre and the constituent units and to negative every attempt by either party to invade the domain assigned to the other. It is only when a constitution, whether federal or unitary, contains a Bill of Rights that the judiciary becomes the bulwark against encroachment by the legislature or the executive. This is the reason why judicial interpretation of the Indian Constitution is of paramount importance, and the Constitution has itself provided the solution to some of the problems which arise in this connexion. Clause (1) of Article 367 expressly lays down that "unless the context otherwise requires, the General Clauses Act, 1897 shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India."1

In the main, the Act contains three different categories of provisions. In the first place, Section 3 of the Act contains a detailed list of statutory definitions. This is in addition to the definitions embodied in the Constitution itself under Article 366. Secondly, the Act deals with the problem of the coming into operation of a statute of the Indian Parliament and provides that unless the contrary is expressed an Act of the Indian Parliament or Regulation made thereunder shall be

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1
The word "Dominion" Is obviously an error because India, although a member of the British Commonwealth of Nations, Is no longer a Dominion.

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