1.
Introductory : Limits of the Subject.
The Constitution of British India is contained in an
enactment called the Government of India Act, 1919.
A student of the Constitution of India therefore has not to search for the
constitution as the student of the English Constitution has to do. His position
is very much like the position of the student of the American Constitution, whose problem is nothing more than to
understand and to interpret the statute embodying the Constitution of the
United States. From this point of view it would seem unnecessary to raise the
question what is Constitutional Law and what are the questions that usually fall within its scope. Secondly
assuming that it is necessary to define the limits of the subject of
Constitutional Law the question is whether such an inquiry should form a
preliminary to the discussion of the subject or whether it should form a
concluding part of it. The late Professor Maitland
in his Study of the English Constitutional History adopted the latter course.
And there is a great deal to be said in favour of such a course. There are
reasons however why such a course would not be suitable to the study of the
Indian Constitution.
The reasons why the question what is Constitutional Law
must be raised at the outset, so that we could be clear as to the limits of our
subject and the topics that must fall within it will be obvious from one or two illustrations. The Government of India
Act does not say anything about the Writ of Habeas
Corpus or the Writ of Mandamus or Certiorari. It
does not speak of Martial Law or Administrative Law. It does not speak of the
right of Paramountcy, what the Government of India
undoubtedly exercises in respect of their dealings with the Indian States. Is
it necessary to study these questions or is it not ?
Are they proper subject to the study of the Indian Constitutional Law or are
they not ? Judging by the tests of how these
subjects have been dealt with in other countries by authorities who have
studied the Constitutional Law of these countries there can be no doubt that by
common consent all these matters are treated as pertaining
to the domain of constitutional law. If therefore these subjects which do not find a place in the Government of India Act but which
all the same must form a part of the study of Constitutional Law, the question of the definition of the subject
becomes important.
To the question, what is Constitutional Law, different
people have given different answers. One may take Austin and Maitland as types representing two schools of thought.
Austin subdivides Public Law or what he calls the
Law of Political Conditions into two classes.
Constitutional Law and Administrative Law. According to him Constitutional Law
determines the persons or the classes of persons who shall bear the sovereign
power in the State. He defines the mode in which these persons shall share
those powers. Austin's definition of Constitutional Law as is obvious includes
only those rules which determine the constitution and composition of the
sovereign body. He excludes from the Constitutional
Law all rules which deal with the exercise of the sovereignty by the sovereign
body. While Austin makes the definition of the Constitutional Law depend upon
the logic of his principles, Maitland makes the limits of Constitutional Law a
matter of conscience. To Maitland, Constitutional Law includes not only the
rules which determine the rules of the composition of the sovereign body, but
it would also include the Privy Council, the Departments of the State, the
Secretaries of the State, Judges, Justices of the Peace, Poor Law Guardians,
Boards of Health and Policemen. These views represent the two extremes and if
Austin's is too narrow, Maitland's undoubtedly is
too wide.
There is however a middle position which can be founded
upon the views of Prof. Holland—expressed in his Jurisprudence. A right is a
capacity residing in one person of controlling, with the assent and assistance
of the State, the actions of another. Rights which may be conferred by one
citizen against another constitute the subject matter of Private Law. The
rights which the State claims to itself against the subjects and the rights
which it permits against itself constitute Public Law.
Constitutional Law is undoubtedly part of Public Law and
as far as it is so it must discuss the rights of the State against the subjects
and the rights of the subjects against the State. But Constitutional Law
include more than this. It must include the study of the organisation of the
state for the State is an artificial person which claims the right to punish,
to possess property, to make contracts and to regulate its rights and duties as
between itself and the subjects and also as between the subjects themselves. It
is necessary to inquire how this artificial person is constituted. The study of
the Constitutional Law therefore must include the study of three matters : (1) The organisation of the State, (2) The rights of
the State against the subjects and (3) The rights of the subjects against the
State. It is this view of the limits and scope of the Constitutional Law that I
propose to follow in these lectures on the Government
of India Act and it is the view adopted by Prof. Anson
in his Study of the English Constitution.
There is another question which is bound to crop up and
which has better be disposed of at the outset. Is the treatment of the subject
to be historical or to be descriptive ? Some
history cannot be avoided in the study of the Government of India Act. The
Government of India Act says that all remedies that were available against the
East India Company shall continue to be available against the Secretary of
State. The Government of India Act also says that
His Majesty may establish High Courts by Letters Patent. The Letters Patent say
that the High Court shall exercise all the powers of the Supreme Court which
they superseded. Many other Sections of similar character in the Government of
India Act could be referred to. But the two mentioned are sufficient to illustrate that history cannot be avoided.
For, in dealing with the Constitution of India, to understand the remedies
available against the Secretary of State one must inquire what were the
remedies open to a subject against the East India Company. Nor can one
understand the powers of the High Court until one enquires what were the powers
with which the Supreme Court was invested. Although some history would be necessary,
there can be no justification in a study of the
Constitutional Law as it operates today to study
every part of it historically. All past is of no moment to the present. Only
the part of the present need be adverted to, and that is what I propose to do
when any particular question requires historical treatment for its proper
understanding.
[We have not received any other essay on this subject—ed.]