Chapter 4: SCHEDULES OF THE CONSTITUTION

    • his extraordinary bulk of the Constitution is due to several reasons

      1. The framers sought to incorporate the accumulated experience gathered from the working of all the known Constitutions and to avoid defects and loopholes that might be anticipated In the light of those gathered from the working of all the known Constitutions. Thus, while they framed the Chapter on the Fundamental Rights upon the model of the American Constitution, and adopted the Parliamentary system of Govemment from the United Kingdom, they took the idea of the Directive Principles of State Policy from the Constitution of Ireland, and added elaborate provisions relating to Emergencies in the light of the Constitution of the German Reich and the Government of India Act, 1935.

      1. On the other hand, our Constitution is more full of words than other Constitutions because it has embodied the modified results of judicial decisions made elsewhere interpreting comparable provisions, in order to minimise uncertainty and litigation.

      1. Not contented with merely laying down the fundamental principles of governance {as the American Constitution does), the authors of the Indian Constitution followed and reproduced the Government of India Act, 1935 in providin g matters of administrative detai1, not only because the people were accustomed to the detailed provisions of that Act, but also because the authors had the apprehension that in the present conditions of the country the Constitution might be perverted unless the form of administration was also included in it.

      1. It was also felt that the smooth working of an infant democracy might be jeopardised unless the Constitution mentioned in detail things which were left in other Constitutions to ordinary legislation. This explains why we have in our Constitution detailed provisions about the organisation of the Judiciary, the Services, the Public Service Commissions, Elections and the like.

      1. The vastness of the country and the peculiar problems to be solved have also contributed towards the bulk of the Constitution. Thus there is one entire Part XVII relating to the Scheduled Castes and Tribes and other backward classes; one Part [Part XVIII] relating to Official Language and another Part XVII] relating to Emergency Provisions.

      1. While the Constitution of the United States deals only with the Federal Government and leaves the States to draw up their own Constitutions, the Indian Constitution provides the Constitutions of both the Union and the Units (i.e., the States), with the same fullness and precision. Since the Units of the federation differed In their historical origins and their political development, special provisions for different classes of the Units had to be made, such as the Part B States (representing the former Indian States), the Part C States (representing the Centrally Administered areas) and some smaller Territories In Part D.

      1. Not only are the provisions relating to the Units elaborately given, the relations between the Federation and the Units el&borately dealt and the Units inter se, whether legislative or adrnlnis- with. trative, are also exhaustively codified so as to eUminate conflicts as far as possible. The lessons drawn from the political history of India which induced the framers of the Constitution to give it a unitary bias, also prompted them to make detailed provisions “regarding the distribution of powers and functions between the Union and the States in all aspects of their administrative and other activities”, and also as regards Inter-State relations, co-ordination and adjudication of disputes amongst the States.

      1. Even the Bill of Rights (i.e., the list of Fundamental Rights) became bulkier than elsewhere because the framers of the Constitution had to include novel matters owing to the peculiar problems of our country, e.g., untouchability, preventive detention.

      1. Another distinctive feature of the Indian Constitution is that it seeks to Impart flexibility to a written federal Constitution. It is only the amendment of a few of the provisions of the Constitution that requires ratification by the State Legislatures and even then ratification by only 1/2 of them would suffice (while the American Constitution requires ratification by 3/4 of the States).

      1. Yet another evidence of this flexibility is the power given by the Constitution itself to Parliament to supplement the provisions of the Constitution by legislation. Though the makers of the Constitution aimed at exhaustiveness, they realised that it was not possible to anticipate all exigencies and to lay down detailed provisions in the Constitution to meet all situations and for all times.

Role of conventions under the Constitution

    • It is also remarkable that though the framers of the Constitution attempted to make an exhaustive code of organic law, room has been left for the growth of conventions to supplement the constitution where it is silent.

    • Thus, while the Constitution embodied the doctrine of Cabinet responsibility in Art. 75; it was not possible to codify the numerous conventions which answer the problems as they may arise in England, from time to time, in the working of the Cabinet system.

    • Take, for instance, the question whether the Ministry should resign whenever there is an adverse vote against it in the House of the People, or whether it is at liberty to regard an accidental defeat on a particular measure as a ‘snap vote’.

    • Again, the Constitution cannot possibly give any indication as to which issue should be regarded as a ‘vital issue by a Ministry, so that on a defeat on such an issue the Ministry should be morally bound to resign. Similarly, in what circumstances a Ministry would be justified in advising the President to dissolve Parliament instead of resigning upon an adverse vote can only be established by convention.

Indian Constitution has been described by critics as a ‘lawyer’s paradise’.

    • Fundamental Rights, included in Part III, are so enforceable at the instance of any person whose fundamental right has been infringed by any action of the State -executive or legislative- and the remedies for enforcing these rights, namely, the writs of habeas corpus, mandamus, prohibition, quo toarranto and certiorari, are also guaranteed by the Constitution. Any law or executive order which offends against a fundamental right is liable to be declared ‘Void’ by the Supreme Court Or the High Court.

    • It is through a misapprehension of these provisions that the Indian Constitution has been described by some critics as a ‘lawyer’s paradise’. According to Sir Ivor Jennings, this is due to the fact that the Constituent Assembly was dominated by ‘the lawyer-politicians’. It is they who thought of codifying the individual Rights and the prerogative writs though none in England would ever cherish such an idea.

    • With due respect to the great constitutional expert these observations disclose a failure to appreciate the very foundation of the Indian Judicial review Constitution. Sir Ivor omits to point out that the fathers of the lndian Constitution preferred the American doctrine of ‘limited government’ to the English doctrine of Parliamentary sovereignty.

    • In England, the birth of modem democracy was due to a protest against the absolutism of an autocratic executive and the English people discovered In Parliamentary sovereignty an adequate solution of the problem that faced them. The English political system Is founded on the unlimited faith of the people in the good sense of their elected representatives.

    • The Founding Fathers of the American Constitution, on the other hand, had the painful experience that even a representative body might be tyrannical, particularly when they were concerned with a colonial Empire. Thus it is that the Declaration of Independence recounts the attempts of the British “Legislature to extend an unwarrantable Jurisdiction Over us” and how the British people had been “deaf to the voice of Justice”. At heavy cost had the colonists learnt about the frailty and weakness of human nature when the same Parliament which had forced Charles I to sign the Petition of Right (1628) to acknowledge that no tax could be levied without the consent of Parliament, did, in 1765, and the years that followed, insist on taxing the colonies, regardless of their right of representation and attempt to enforce such undemocratic laws through military rule.

    • Hence, while the English people, in their fight for freedom against autocracy stopped with the establishment of the supremacy of the law and Parliament as the sole source of that law, Americans had to go further and to assert that there Is to be a law superior to the Legislature Itself and that it was the restraints of this paramount written law that could only save them from the fears of absolutism and autocracy which are ingrained in human nature itself.

    • So, in 1928 long before the dawn of independence in India, the Motilal Nehru Committee asserted that “Our first care could be to have our fundamental rights guaranteed in a manner which will not allow withdrawal under any circumstances.”

    • Judicial review is a necessary concomitant of ‘fundamental rights’, for, it is meaningless to enshrine individual rights in a written Constitution as ‘fundamental rights’ if they are not enforceable, in Courts of law, against any organ of the State, legislative or executive.

    • At the same time, it must be pointed out that since the inauguration of the Constitution, various provisions have been inserted into the Constitution by amendments, which have taken out considerable areas from the pale of Judicial review, e.g., by inserting Arts. 31A – 31C; and by 1995 as many as 284 Acts,-Central and State,-have been shielded from judicial review on the grounds of contravention of the Fundamental Rights, by enumerating them under the 9th Schedule which relates to Art. 31B.

    • An Independent judiciary, having the power of ‘Judicial review’, is another prominent feature of our Constitution. On the other hand, we have avoided the other-extreme, namely, that of ‘judicial supremacy’, which may be a logical outcome of an over-emphasis on judicial review, as the American experience demonstrates.

    • An absolute balance of powers between the diferent organs of government is an impracticable thing and, in practice, the final say must belong to some one of them. This is why the rigid scheme of Separation of Powers and the checks and balances between the organs in the Constitution of the United States has failed in its actual working, and the Judiciary has assumed supremacy under its powers of interpretation of the Constitution to such an extent as to deserve the epithet of the ‘safety valve’ or the ‘balance-wheel’ of the Constitution.

    • It has the power to invalidate a law duly passed by the Legislature not on1y on the ground that it transgresses the legislative powers vested in it by the Constitution or by the prohibitions contained in the Bill of Rights but also on the ground that It Is opposed to some general principles said to underlie vague expressions such as due process, the contents of which not being explicitly laid down in the Constitution, are definable only by the Supreme Court. The American Judiciary thus sits over the wisdom of any legislative policy as if it were a third Chamber or super-Chamber of the Legislature.

    • Under the English Constitution, on the other hand, Parliament is sup- reme and “can do everything that is not naturally impossible” and the Courts cannot nullify any Act of Parliament on any ground whatsoever.

    • The Indian Constitution wonderfully adopts the via media between the American system of judicial supremacy and the English principle of Parliamentary Supremacy, by endowing the Judiciary with the power of declaring a law as unconstitutional if it is beyond the competence of the Legislature according to the distribution of powers provided by the Constitution, or if It is In contravention of the fundamental rights guaranteed by the Constitution or of any other mandatory provision of the Constitution but at the same time, depriving the Judiciary of any power of ‘judicial review’ of the wisdom of legislative policy.

    • Our Constitution thus places the supremacy at the hands of the Legislature as much as that is possible within the bounds of a written Constitution.

    • The balancing between supremacy of the Constitution and sovereignty of the Legislature is illustrated by the novel declaration of Fundamental Rights which our Constitution embodies.

    • he idea of incorporating in the Constitution a ‘Bill of Rights’ has been taken from the Constitution of the United States. But the guarantee of individual rights in our Constitution has been very carefully balanced with the need for the security of the State itself.

    • American experience demonstrates that a written guarantee of fundamental rights has a tendency to engender an atomistic view towards society and the State which may at times prove to be dangerous to the common welfare. Of course, America has been saved from the dangers of such a situation by reason of her Judiciary propounding the ‘doctrine of ‘Police Powers’ under which the Legislature is supposed to be competent to interfere with individual rights wherever they constitute a ‘dear danger’ to the safety of the State and other collective Interests.

  • Instead of leaving the matter to the off-chance of judicial protection in particular cases, the Indian Constnunon makes each of the fundamental rights subject to legislative control under the terms of the Constitution itself, apart from those exceptional cases where the interests of national security, integrity or welfare should exclude the appllcation of fundamental rights altogether. Example, [Arts. 31A-31C].

Quiz

Score more than 80% marks and move ahead else stay back and read again!

Q1:Total schedules in our constitution are
1.10
2.11
3.13
4.12

Q2:Division of Powers is mention in Schedule
1.4
2.5
3.6
4.7

Q3:Anti defection belongs to Schedule
1.8
2.9
3.10
4.11

Q4: Administration and control of scheduled areas and tribes is schedule
1.4
2.5
3.6
4.7

Q5: Law within this schedule are protected from judicial review.
1.9
2.10
3.11
4.12