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Constitutional and Legislative Development in the Indian Republic
Published online by Cambridge University Press: 24 December 2009
Extract
Cowell in his Tagore Law Lectures in 1872 said: ‘Constitutional history in this country has nothing to do with steady spontaneous growth of national activities. It is a record of experiment made by foreign rulers to govern alien races in a strange land, to adapt European institutions to Oriental habits of life, and to make definite laws supreme among peoples who had always associated government with arbitrary and uncontrolled authority.’
Rankin in 1946 wrote: ‘The influence of the common law in India is due not so much to a “reception” … as to a process of codification … not merely with a view to putting into form a system which was already in force, but to lay down a rule of decision where there seemed to be none, or where different rules were competing for the same ground.’
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- Bulletin of the School of Oriental and African Studies , Volume 20 , Issue 1 , February 1957 , pp. 267 - 278
- Copyright
- Copyright © School of Oriental and African Studies 1957
References
page 267 note 1 Cowell, The history and constitution of the courts and legislative authorities in India, 3.
page 267 note 2 Rankin, Background of Indian law, 19, 20.
page 268 note 1 See e.g. Raj Narain v. D.M., A.I.R. [1956] All. 481, N. B. Khare v. Delhi, A.I.R. [1950] S.C. 211. The gist of the distinction is that in restricting the first three rights mentioned, the rules of ‘natural justice’ must be observed.
page 268 note 2 By 149 votes to 2 a State legislature in 1953 withdrew press facilities from a newspaper which had condemned questions as to which High Court judges had liquor permits. The Constitution forbids discussion of the conduct of a judge in a legislature.
page 270 note 1 In Bihar v. Kameshwar [1952] S.C.R. 889 it was held that compensation for expropriation must be a fair equivalent; in W. Bengal v. Subodh, A.I.R. [1954] S.C. 92 and Dwarkadas v. Sholapur Spinning Co., A.I.R. [1954] S.C. 119 it was held that the individual deprived of property by the State was entitled to compensation, whether or not the title or right to possession vested in the State. The effect of the Constitution (Fourth Amendment) Act 1955 is to supersede these decisions. The First Amendment Act 1951 purported to remove constitutional restrictions on the nationalization of trade, business, or industry.
page 271 note 1 See, for instance, (i) Motilal v. U.P., A.I.R. [1951] All. 257; the State Government, to nationalize road transport, ordered Road Transport Authorities to misuse their statutory powers of licensing motor coaches, by refusing licences to private owners; (ii) Bombay Educational Society v. Bombay, A.I.R. [1954] Bom. 468; with the object of making Hindi the language of instruction, the Bombay Government, in violation of the fundamental rights of the Anglo-Indian community to preserve its English language and culture and to maintain schools, and of the constitutional ban on refusing admission by its state-aided schools to non-members of the community, forbade all state-aided schools using English to admit pupils other than Anglo-Indians and non-Asiatics. The schools controlled by the Bombay Educational Society used English, and the majority of the pupils were Indians.
page 272 note 1 Secretary of State v. Hari Bhanji, (1882) 5 Mad. 273.
page 274 note 1 Thangal Kunju v. Venlcatachalam, A.I.R. [1956] S.C. 246.
page 274 note 2 [1952] All E.R. 122.
page 274 note 3 Hari Vishnu, A.I.R. [1955] S.C. 233.
page 277 note 1 (1927) 54 I.A. 248.
page 277 note 2 (1856) 6 M.I.A. 393.