Editorial Committee of the Cambridge Law Journal

The Indian Constitution, 1950-65 by M. C. SetalvadReview by: J. G. CollierThe Cambridge Law Journal, Vol. 26, No. 1 (Apr., 1968), pp. 141-142Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505210 .

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Cambridge Law Journal, 26* I, April 1968, pp. 141-172 Printed in Great Britain

BOOK REVIEWS

The Indian Constitution, 1950-65. By M. C. Setalvad, former Attorney- General of India. [Bombay: at the University Press. 1967. xiii and (with index) 239 pp. Rs. 12.75 net]

This book contains a series of lectures given at the University of Bombay in 1965. Its distinguished author is no stranger as a lecturer; one recalls his excellent Hamlyn Lectures of 1960 on the Common Law in India. The work is both timely, when new stresses and strains seem to threaten democracy in India, and is a most useful companion to those to whom the Indian Constitution looms large and complex.

The author's aim is to givo an account of those parts of the Constitution dealing with the fundamental liberties of the individual. He puts the matter in context by demonstrating the forces at work in the Indian body politk, with an analysis of the main features of the Constitution. This is very well done indeed.

In Chapters 2, 3 and 4 he deals with the fundamental liberties enshrined in Article 19 (1) of the Constitution. These are, personal freedom, equality and the right to property and trade. Chapter 5 is concerned with the Supreme Court, but in fact all the central chapters are also concerned with it, for the court was given the power of judicial review of legislation and one of its main features is to act as the guardian of the fundamental liberties.

How well has the court fulfilled this high responsibility? Fifteen years is not a long time, but the result of a systematic inquiry into the paths that have been trodden may suggest the way ahead. The court has been faced with formidable obstacles. It started its existence in the aftermath of the serious troubles which accompanied independence, and it has to work in a country struggling perpetually against fearful odds to advance itself and its people quickly both socially and economically, whilst threatened externally. The judges themselves have had to adapt to a new task, since they were inheritors of a legal tradition that knows not judicial review. It k small wonder that the Supreme Court has seemed to veer uncertainly at times between efforts to advance the interests of individuals on the one hand and those of the state on the other.

But this has not always been the fault of the judges. In respect of the right of property the blame for difficulties which have arisen is more properly to be laid at the door of those who drew up the Constitution. It is somewhat odd to find this right stated at all as a fundamental liberty. If anyone was asked to state the fundamental human rights he would almost certainly mention freedom of expression and opinion, but perhaps not property. In a country like India it is obvious that the entrenchment of the right to individual property may, by keeping the ownership of the land in the hands of the few, deny in the end to millions the most fundamental right of all, the right to life. In this regard the Constitution makers were at fault for, by enshrining the right of property and by making elaborate provisions or conditions

141

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142 The Cambridge Law Journal [1968]

under which property might be taken by the state, they were almost

inviting a divergence between the court and the policy of the state in

promoting one of the avowed objects of the Constitution itself, the attainment of economic and social justice. To attain this, the Constitution has had to be altered frequently.

All this is most interesting; a vast mass of case law has been digested into a readable form. But it is the last chapter which is most revealing and to an outsider most interesting. In it, consideration is given to the future prospects for democraey in India. Here it is not the court which is important, but the activities of the Indians themselves, for even the most beautifully designed Constitution is booted unceremoniously into the dustbin when people have ceased to make it work, as too many sad

examples show. The author investigates those factors which have enabled the democratic spirit of constitutionalism to survive with a stable government in India. In a way India has been fortunate in having been led by at least one great man and having a strong political party supported, at any rate until recently, by the vast majority of the people. But these advantages bring concomitant disadvantages. The author is not biinded by Nehru's greatness to his weaknesses; Nehru, Congress, Parliament are all subject to criticism and sometimes scathing comment as the author denounces corruption, overweening ambition and any tendency to the entrenchment of political power. He poses starkly the choice before India; democraey or Communism. Shri Setalvad has no idols save justice, liberty, equality and fraternity. And it is a tribute to men like him that a man can say the things he does freely; India is still, warts and all, a democraey.

The book can be highly recommended to anyone who wishes to understand the Indian Constitution; the reviewer has profited much by it. If in future he hears any pseudo-liberal commentator explaining why it is necessary in an underdeveloped country to have guided democraey, military or revolutionary rule, or a one-party state for the good of the people, and why old-fashioned liberal democraey would merely be a waste of talent which cannot be afforded, the reviewer will be sorely tempted to reply to such justification of dictatorship and the denial of liberty by aiming a copy of Shri Setalvad's book in the direction of the speaker's head in the hope that this account of why such grisly expedients are not necessary will sink in.

J, G, Collier.

142 The Cambridge Law Journal [1968]

under which property might be taken by the state, they were almost

inviting a divergence between the court and the policy of the state in

promoting one of the avowed objects of the Constitution itself, the attainment of economic and social justice. To attain this, the Constitution has had to be altered frequently.

All this is most interesting; a vast mass of case law has been digested into a readable form. But it is the last chapter which is most revealing and to an outsider most interesting. In it, consideration is given to the future prospects for democraey in India. Here it is not the court which is important, but the activities of the Indians themselves, for even the most beautifully designed Constitution is booted unceremoniously into the dustbin when people have ceased to make it work, as too many sad

examples show. The author investigates those factors which have enabled the democratic spirit of constitutionalism to survive with a stable government in India. In a way India has been fortunate in having been led by at least one great man and having a strong political party supported, at any rate until recently, by the vast majority of the people. But these advantages bring concomitant disadvantages. The author is not biinded by Nehru's greatness to his weaknesses; Nehru, Congress, Parliament are all subject to criticism and sometimes scathing comment as the author denounces corruption, overweening ambition and any tendency to the entrenchment of political power. He poses starkly the choice before India; democraey or Communism. Shri Setalvad has no idols save justice, liberty, equality and fraternity. And it is a tribute to men like him that a man can say the things he does freely; India is still, warts and all, a democraey.

The book can be highly recommended to anyone who wishes to understand the Indian Constitution; the reviewer has profited much by it. If in future he hears any pseudo-liberal commentator explaining why it is necessary in an underdeveloped country to have guided democraey, military or revolutionary rule, or a one-party state for the good of the people, and why old-fashioned liberal democraey would merely be a waste of talent which cannot be afforded, the reviewer will be sorely tempted to reply to such justification of dictatorship and the denial of liberty by aiming a copy of Shri Setalvad's book in the direction of the speaker's head in the hope that this account of why such grisly expedients are not necessary will sink in.

J, G, Collier.

French Administrative Law. By L. Neville Brown, m.a., ll.b. (Cantab.), Docteur en Droit (Lyon), Solicitor of the Supreme Court, Professor of Comparative Law in the University of Birmingham, and J. F. Garner, ll.d. (Lond.), Solicitor of the Supreme Court, Professor of Public Law in the University of Nottingham, with the assistance of Nicole Questiaux, Maftre des Requetes at the Conseil d'fitat, Paris. [London: Butterworths. 1967. xiv, 140 and (appendices and index) 20 pp. 30s, net.]

This is a most welcome addition to the small number of students' books by British law teachers on specific aspects of foreign law. It will make much easier the teaching of comparative administrative law. Does it herald a Butterworths foreign law series?

French Administrative Law. By L. Neville Brown, m.a., ll.b. (Cantab.), Docteur en Droit (Lyon), Solicitor of the Supreme Court, Professor of Comparative Law in the University of Birmingham, and J. F. Garner, ll.d. (Lond.), Solicitor of the Supreme Court, Professor of Public Law in the University of Nottingham, with the assistance of Nicole Questiaux, Maftre des Requetes at the Conseil d'fitat, Paris. [London: Butterworths. 1967. xiv, 140 and (appendices and index) 20 pp. 30s, net.]

This is a most welcome addition to the small number of students' books by British law teachers on specific aspects of foreign law. It will make much easier the teaching of comparative administrative law. Does it herald a Butterworths foreign law series?

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