BOOK REVIEW

Constitutional Law of India by V. D. Mahajan, Eastern BookCompany, Lucknow, (Sixth Edition-1984), pp. 570, Rs. 451,

The Constituent Assembly, which gave shape to the Con-stitution of India, took the Government of India Act as thebasic framework. ,It added on to it the principles and theoriesemerging from the sovereignty of the people and from the re-cognition of Human Rights. The authors have taken care toincorporate into it a long chapter on guaranteed and enforce-able rights of the individual which can only be affected in anemergency involving the safety of the country or in the publicinterest.

Recent judgments reflect new bearings in the interpretativeprocess flowing from new heights of the judicial pyramid. Onecan see the judge, even in a codified legal system, as a sensitiveindicator of social change, sometimes merely registering anexisting consensus, sometimes moulding it, aware of the currentsof contemporary society, yet himself moulded by the valuesembedded in the laws which he administers. The Court doesnot reject socially useful legislative policy; rather it seeks themost efficient way to implement the policy, consistent with theconstitutional goals. Legislature and Court must be joined ina co-operative enterprise to accommodate regulatory purposewith constitutional protections.

India which started with a written Constitution—and, per-haps, the lengthiest in the world, guaranteeing the internationallyrecognised basic human freedoms, has now suffered an alarm-ing erosion of those freedoms. Our Constitution has beenamended in such a careless and cavalier fashion that one istempted to think it were an innocuous or insignificant enact-ment like the Cattle Trespass Act. Mobocracy has displaced

418 COCHIN UNIVERSITY LAW REVIEW

democracy in the minds of the people as the instrument formitigating their unbearable burdens. As Nani Palkhivala asksin his Introduction to his Our Constitution Defaced and Defiled,"The question is whether the sanctity of the Constitutionwill survive or whether the rule of law will give way under thepressure of anarchy which always gives the crown to the mobwith the loudest voice, the biggest sticks and the readiest fists.There is need in our time and land to remind ourselves that theConstitution is intended not merely to provide for the exigenciesof the moment, but to endure through a long lapse of years."

The staying power of a democracy varies from country tocountry. The timing of political break-downs or upheavals de-pends upon the strength and resilience of the political institu-tions and the seriousness and severity of the economic crisis.But, the most potent peril to a country's Constitution and free-dom is from the politicians in power, who after taking theiroath of office owing allegiance to the Constitution, view theinstrument as so pliant to be capable of being bent in any ma-nner according to the caprices of the ruling clique. Politiciansare able to get away with it only because of the people's apathy,complacency and ignorance. Our people have to be alerted outof their apathy and stirred out of their stupor to make themguard the Constitution and the spirit it permeates. As NaniPalkhivala has again said, we must get accustomed to a spaciousview of the great instrument.

Sri. Mahajan's book avowedly and apparently is intendedto cater to the requirements of students. It must be said infairness that it does that job well.

Sri. Mahajan has divided the book under review into 40chapters running into more than 550 pages. After Introduction, hetraverses through the Nature and Salient Features of the Consti-tution, the Preambular Prescriptions, the Union and Its Terri-tories, Fundamental Rights in General and Rights to Equality,Freedoms Guaranteed to Citizens and Protection to Accusedand Protection of Life and Liberty and Against Arrest andDetention, Rights of Religion, Culture, Education and Property,Right to Constitutional Remedies, Limitations of FundamentalRights and Directive Principles of State Policy, Fundamental

BOOK REVIEW 419

Duties, Executive, Legislature and Judiciary at the Union andState Levels, Legislative Privileges, Services under the State,Union-State Relations, Property, Contracts, Rights, Liabilities,Obligations and Suits, Freedom of Trade and Commerce, Spe-cial Provisions Relating to Certain Classes, Emergency Provi-sions and Constitutional Amendments etc. The book, within itslimits, carries the running theme of the new and revolutionarylaw totally committed to the society as one finds in our Consti-tution. One cannot, however, expect a minute analysis in abook of this character.

The author has selected carefully and well his materialand arranged it in consonance with the scheme of the Consti-tution. He has taken care to give the text or summary of therelevant articles at the beginning of each topic and to explainthe implications thereof with appropriate reference to consti-tutional documents, judicial dicta etc. Theme and material areharmoniously blended by the author in the book thus addingreadability to the book.

In fine, it will be silly of a student of a law school to bewithout a copy of Sri. Mahajan's book.

S. PARAMESWARAN*

Lawyer, High Court of Kerala, Ernakulam.

Writ Jurisdiction under the Constitution, by B. L. Hansaria, N.M. Tripathi Private Ltd., Bombay (1984), pp. 300, Rs. 901-.

In the Indian constitutional scheme the writ jurisdiction isdesigned to make the stream of justice pure by preventingpublic authorities from abusing power. The power to issue writis a hall-mark of rule of law, which among other things, postu-lates that no one, however high or low, is above the law. InIndia, significantly, this vital jurisdiction is vested in the higherjudiciary. How these judicial organs are looked up by the teem-ing millions of India in times of their sorrows and despair isillustrated by the ever increasing number of cases coming upbefore the Supreme Court and the High Courts. Essentially, wecan hardly imagine a Constitution devoid of this power of judi-cial review. And yet, like any other power flowing from theConstitution, this power is not unbridled; it is properly guidedby jurisdictional limitations and self-imposed restrictions.

The author has brought home the scope and ambit of thewrit jurisdiction under the Indian Constitution. In the introduc-tory chapter he says: "The Supreme Court of India (thus)enjoys larger powers than its counterpart in the United Statesor the United Kingdom. It has passed through various stressesand strains during the last 30 years and more of its existence.The subject matter of this book is not to deal with these pro-blems. What has rather been attempted is to focus the legalaspects faced while dealing with a petition for enforcement offundamental rights." The purpose of the book is to project themulti-dimensional problems confronted by a lawyer in a courtroom.

The present book is a revision of the author's earlier work,Principles Governing Article 226 (1968).

A wide range of topics concerning judicial reviewabilityhas been dealt with. Different topics have been discussed under

BOOK REVIEW 4 21

appropriate headings and sub-headings to make it useful tolawyers. The author makes it clear that no attempt has beenmade to present a digest of the case law as that would haveadded to the volume of the book without enhancing its utility.The glimpses of contemporary legal thoughts on conceptionslike locus standi, public interest litigation, natural justice,habeas corpus, jurisdictional error and promissory estoppel arepresented in the work in beautiful style.

Chapter one gives a historical perspective of Article 226.Chapter two is a general discussion on a matter of technical im-portance vis-a-vis filing and admissibility of writs. This chapterexplains the legal position in regard to general issues that maycrop up in the conduct of cases. The author speaks about thirty-one such issues, each one being exposed with reference torecent cases of the Supreme Court or the High Court. The gistof the decisions given is excellent. Judicial and academic viewsfrom a comparative angle are stated in appropriate places.

The discussion on public interest litigation in pages 15-21is illuminating. The Indian law on the point is highlighted bygiving the principles established by the Supreme Court in K. R.Shenoy v. Udipi Municipality, (A.I.R. 1974 S.C. 2177), Muni-cipal Council, Ratlam v. Vardhichand, (A.I.R. 1980 S.C.1622), Fertiliser Corporation Kamgar Union v. Union of India,(A.I.R. 1981 S.C. 344) and S. P. Gupta v. Union of India,(A.I.R. 1982 S.C. 149). A few High Couft Judgments are alsodealt with. The development of the theory in the U.S.A. istraced through notable cases like Data Processing Service v.Camp, (397 U.S. 150; 25 L. Ed. 2d. 184), Barlow v. Collins,(397 U.S. 159; 25 L. Ed. 2d. 192), Sierra Club v. Morton,(405 U.S. 727; 31 L. Ed. 2d. 636), United States v. Scrap,(412 U.S. 669; 37 L. Ed. 2d. 254) and Simon v. Eastern Ky.Welfare Rights Organisation, (426 U.S. 26; 48 L. Ed. 2d.450). Examining the English position on the subject matter,the author refers to Lord Denning's The Discipline of Law andcites land mark cases like Blackburn v. Attorney General,[1971] 1 W.L.R. 1037, R. v. Commissioner of Police, ex parteBlackburn, [1968] 2 Q.B. 241, R. v. Greater London Council,ex parte Blackburn, [1976] 1 W.L.R. 550, Gouriet, [1978] A.C.

922 COCHIN UNIVERSITY LAW REVIEW

435], R. v. Inland Revenue Commissioners, [1980] 2 AllE.R 378], Inland Revenue Commissioners v. National Federa-tion of Self-employed and Small Business Ltd., [1982] 2 AllE.R. 93. The author has given only the substance of these deci-sions without any comment of his own. He, however, holdsthe view that the court has to exercise greater amount of dis-cretion in entertaining public interest actions. In support herefers to the following views of the eminent jurist Dr. S. N.Jain, who was the Director of the Indian Law Institute, appear-ing in an article, 'Standing and Public Interest Litigation'. (Thesource of this article is not given in the book.)

"(1) Where mal-administration exists on a vast scale,Courts handling of public interest litigation may lead togreater confrontation between executive and judiciary andso some caution is necessary in this regard. (2) Theselitigations may raise complex economic, social, techno-logical issues for which the courts may not possess enoughexpertise. (3) Affirmative orders in this context may notonly affect the prestige of the court where these orders aredisregarded, but also put a pressure on the already over-worked court system. This may also paralyse the admini-stration which itself will not be in the public interest. (4)The area being vast what courts can do in this regardcould be of marginal help only. . . . If carefully and pru-dently used, the public interest litigation has great potentialin correcting administrative wrong, but if liberally andindiscriminately used in all kinds of cases it may turn intoan engine of destruction."

It is worth mentioning in this context that Prof. Jain hasexamined the issue elaborately in the Chapter on "Standing andPublic Interest Litigation," in a recent book, Consumer Pro-tection and Legal Control, a compilation of papers presentedat the U.G.C. sponsored national seminar held in the Universityof Cochin Department of Law.

Chapter three is a fairly detailed treatment of certiorariaccompained by case law. The widening horizones of the con-cept of natural justice are illuminated. Chapter four touchesupon the exercise of discretionary power. The legal aspects of

BOOK REVIEW 423

malafide use of power are discussed in chapter five. The prin-ciples governing the issue of writ of prohibition are examinedin chapter six. Chapters seven and eight deal with the basicprinciples of mandamus and the recent judicial trends in res-pect of habeas corpus. Chapter nine is a brief survey on quowarranto. The last four chapters highlight contemporary thougthson Articles 226, 32 and 136 of the Indian Constitution. Therules of the Supreme Court relating to application under Article32 are furnished in an appendix. The book contains a table ofcases and detailed index. One may, however, feel that the methodof citing cases and materials in the text, and not in footnotes,may not facilitate quick reading.

With a lot of information and thought-provoking scholarlytreatment, this book is not simply to be chewed or tasted, butis to be read and assimilated. The direct and simple style makesthe task easier. The book has the merit of a companion referencevolume.

K. B. MOHAMED KUTTY*

B.A. (Delhi), LL.B. (Kerala), LL.M. (Cochin); Lawyer, Part-timeLecturer, Govt. Law College, Ernakulam.

Administrative Law by S. P. Sathe, (Fourth Edition - 1984),N. M. Tripathi, Bombay, pp. 495 + Ixiii, Rs. 501,

Administrative Law is one of the fast developing branchesof law in India. This new edition of the book by Prof. S. P.Sathe includes recent developments in the area.

The book contains eleven chapters covering introduction,legislative powers of the administration, control of delegatedlegislation, classification of administrative action, fair hearing,judicial review of administrative action and discretion, reliefsand remedies against the administration, suits against the admini-stration, public enterprises and ombudsman.

Each chapter is further divided into easily digestible sec-tions. There are addenda containing treatment of recent cases,an appendix consisting of certain constitutional provisions andan index exhaustively indicating the subject matter of the book.

With the growth in the functions of the State, the executivehas to perform many a task originally belonging to the legis-lature, for example, the law-making function by way of dele-gated legislation. How can the constitutional theory of sepa-ration of powers be reconciled with delegated legislation? Therole of the court in identifying the problems is important. Thisis aptly described by the author as follows:

"Although the courts have laid down the rule that theessential legislative function cannot be delegated, the courtsseem to be reluctant to strike down a law on the groundof excessive delegation. Even a very general statement ofpolicy has satisfied the courts. Where rules are required tobe laid down before the legislature, the courts have heldthat this was sufficient to control the delegated legislation."

1. S. P. Sathe, Administrative Law, (4th edn. 1984), p. 58 (The bookunder review, herein after be referred to as S. P. Sathe).

BOOK REVIEW 425

However, the author has canvassed wider judicial discretion withjudicial restraints.

In England and U.S.A., there are statutes requiring publi-cation of delegated legislation. But India lacked such a legislationfor a long time. The Supreme Court adhered to publication in theofficial gazette. The Committee on Subordinate Legislation hassuggested improvement of the publication. The author suggestsa general provision requiring publication applicable also to sub-delegated legislation to be included in the General Clauses Act.However, there are practical difficulties in making the publica-tion of all delegated and sub-delegated legislation compulsory.That may be the reason why the new legislation in the field,The Delegated Legislation Provisions (Amendment) Act 1983,enumerated in its schedule, the list of legislation where publica-tion and laying down of the rules and delegated legislation there-under is necessary and made amendments in the specific legi-slation to that effect. The author correctly argues for accessi-bility of delegated legislation to the common man Law shouldbe made knowable to the community.

Formerly, right to be heard was available only in quasi-judicial actions and not in administrative actions. This forma-listic dichotomy was discarded in Ridge 2 in England and inKraipak 3 in India. Maneka 4 went a further step in incorpor-ating the right to be heard in the concept "procedure establishedby law" under Article 21 of the Constitution of India. It forti-fied the concept of post decisional hearing. But this would beresorted to only in exceptional circumstances where pre-deci-sional hearing is not feasible. The Supreme Court opened newvistas of duty to hear in post Maneka period. National Textile

Workers Union 5 holds the view that workers should be givenan opportunity of being heard in the winding up proceedings ofa company. Judicial activism coupled with pragmatic realism

Ridge v. Baldwin, [1964] A.C. 40.

A. K. Kraipak v. Union of India, A.I.R. 1970 S.C. 150.

Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.

National Textile Workers Union v. P. R. Ramakrishnan, A.I.R.1983 S. C. 75.

426 COCHIN UNIVERSITY LAW REVIEW

identifies this universal principle in its proper perspective. Theauthor has succeeded in pointing out the uptodate developmentsin this field.

The traditional concept of locus standi has been muchwatered down in the present times. This has resulted in theemergence of public interest litigation. The courts assume adynamic role in tune with the new awareness of social account-ability especially in the field of poverty oriented jurisprudence.This was clearly exhorted by the Supreme Court in People'sUnion for Democratic Rights 6 thus:

"The legal aid movement and public interest litigation

seek to bring justice to these forgotten specimens of hum-

anity who constitute the bulk of the citizens of India and

who are really and truly the "People of India", who gave

to themselves this magnificient Constitution . . . . The time

has now come when the courts must become the courts of

the poor and struggling masses of this country. They must

shed their character as upholders of the established order

and the status quo. They must be sensitised to the need of

doing justice to the large masses of people to whom justice

has been denied by a cruel and heartless society for gen-

erations".'

Processual justice is an area where there are plethora of

cases in which the court accepted the public interest litigation.8

The discussion of the new developments in the area of public

interest litigation in this new edition is quite illuminating.

Tortious liability of the State is an unsettled area. The pre-

sent law is laid to be outdated, antiquated and a historical

People's Union for Democratic Rights v. Union of India, A.I.R.1982 S.C. 1473.

Id., p. 1478.

See for example Hussainara Khatoon v. State of Bihar (A.I.R. 1979S.C. 1360, 1369, 1377); Kadra Pahadia v. Bihar (A.I.R. 1981 S.C.939); Khatri v. Bihar (A.I.R. 1981 S. C. 928); Bandhua MuktiMorcha v. Union of Lydia (A.E.R. 1984 S.C. 802).

BOOK REVIEW 427

anachronism. 9 The feudalistic distinction between sovereign andnon-sovereign functions expounded in P & 0 Navigation"° still

reigns the field. It seems that Vidyavathi ll is in the expectedright path while Kasturilal 12 is an exception. There is muchjuristic and judicial opinion in favour of formulating a legis-lation like that of Crown Proceedings Act 1947 in England orFederal Tort Claims Act 1946 in the U.S. To make the Stateliable for tortious acts, courts now-a-days put the State actionsin the category of non-sovereign functions. It is a rising trend.The State has come to be held liable for wrongful imprisonmentof undertrial and other prisoners and for atrocities committedon them. The recent case, Rudal Sah 13 is a landmark in thisrespect. Discussing the case in the addenda, the author hopesthat the court will openly overrule the Kasturilal and lay downsounder legal propositions in the very near future.

Promissory estoppel is an area where lot of confusion andcontroversy still exist." The author correctly points out thatwhile the public interest doubtlessly needs to be safeguarded,the government and its officials should not be allowed to break

M. P. Jain and S. N. Jain, Principles of Administrative Law, (3rdedn. 1979), p. 593.

P and 0 Navigation Co. v. Secretary of State for India in Council,(1861) 5 Bom. H.C.R. App. 1.

Rajasthan v. Vidyawathi, A.I.R. 1962 S.C. 933.

Kasturilal v. U.P., A. 1. R. 1965 S. C. 1039.

Rudal Sah v. Bihar, A.I.R. 1983 S. C. 1086, where the SupremeCourt ordered Rupees 35,0001- as compensation for illegal impri-sonment for over 14 years.In Union of India v. Anglo Afghan Agencies (A.I.R. 1968 S.C.

718) the Supreme Court considered and applied the doctrine to theCentral Government. Later, in a few cases, the Court applied thedoctrine, but in many, the Court discarded it. Motilal Padampathv. U. P. (A.I.R. 1979 S.C. 621) was a turning point, where JusticeBhagwati held, that the State was bound by its promise. The posi-tion has been much watered down by lit Ram Shivkumar v. Har-yana (A.I.R. 1980 S. C. 1285) in which Jutice Kailasm observedthat the plea of promissory estoppel should be available only whenan official acts within the scope of his authority and has given anassurance or promise, relying upon which the other party has actedand he is likely to suffer if the promise is not kept.

428 COCHIN UNIVERSITY LAW REVIEW

their prothises without any scruples in the name of publicinterest. 15

The present edition is an improvement over the earliereditions of the book. Prof. Ralph F. Fuchs has given an excel-lent Foreword to the text. Although the author in his prefacehas said that the book is to acquaint the students with theprinciples of Administrative Law, the usefulness of the bookgoes beyond. It is of immense value not only to the studentsbut also to judges, lawyers, administrators and laymen.

Perhaps the absence of a bibliography is a glaring defectof the book.

D. RAJEEV*

15. S. P. Sathe, p. 430.* M.A. (Kerala), LL.M. (Cochin); Lecturer, Department of Law,

University of Cochin, Cochin-682 022.

Public Enterprises and Fundamental Rights, by Laxmi Narainand B. S. Murty (Ed.), N. M. Tripathi Private Limited, Bom-bay (1984), pp. 143 + xvi, Rs. 551-.

The book under review is mainly a collection of the 'basicpapers' presented at a seminar held under the auspices of theUniversity College of Commerce and Business Management,Osmania University. The central issue, discussed at the seminar,claimed as an issue of national importance, has been the impactof judicial decisions in interpreting the term 'other authority'in Article 12 of the Constitution of India as including publiccorporations and companies.

Besides the 'basic papers', eleven in number, the bookcontains a summary of seminar discussions, with an introduction,a foreword and a preface.

In his lengthy foreword, Justice Jagmohan Reddy identifiessome issues not discussed in the seminar and pleads for a fullerassessment of the several aspects surmounting the issue by aConstitutional Bench of the Supreme Court. An enthusiasticreader delighted by the brilliant account by Professor B. S.Murty in his introduction about the principal strands in thediscussion may get disappointed when he goes through theBook. The comment by Justice Chinnappa Reddy in his inau-gural address that "there is no well-informed criticism of thejudgments of the Supreme Court" seems to indicate the factthat neither the judges do pay any regard for available criticismprobably under the mistaken assumption that the same is not`well-informed'. The contribution by Professor Madhava Reddyin his presidential address is valuable. The account by ProfessorLexmi Narain of the summary of the seminar discussion con-tains nothing worth commenting.

Of the eleven 'basic papers' contained in the Book, onefinds that eight are mere narration of case law. Of the remaining

430 COCHIN UNIVERSITY LAW REVIEW

three, the one by Professor Massey, "A note on the dialectics ofjudicial review and the dynamics of corporate management: asearch for alternatives" is outstading with clarity of thought,soundness of arguments and with logical and pragmatic con-clusions. The essay by Mr. Jayakumar, "Public entreprise andthe expanding concept of 'State'," is also a notable contributionin the field. The paper by Professor Murty, "The legal statusof state corporations: legal and policy issues", is a scholarlytreatment to the subject and covers all the cases decided by theSupreme Court.

The book, especially in view of the above mentioned threepapers, is a worthy addition to any library.

M. RAJAGOPALAN'

Lecturer. Department of Law, University of Cochin.

The Law of Evidence, by P. S. Atchuthen Pillai, (Third Edition-1984), N. M. Tripathi (P) Ltd., Bombay, pp. xxxii + 462,Rs. 501-.

In India, the law relating to evidence is detailed in theIndian Evidence Act 1872. Prof. Atchuthen Pillai's Book on theLaw of Evidence under review deals with the various provisionscontained in this Act very elaborately with the help of case lawboth Indian and foreign.

The book is divided into two parts. Part I deals with thegeneral principles of law of evidence. Part II gives a summaryof the preceding chapters.

Part I is divided into 54 small chapters. The first twochapters are earmarked for dealing with law and evidence ingeneral.

Chapter 3 defines relevant facts. Each important point isdiscussed separately in small chapters. This has helped theauthor to deal with the law of evidence in a chronological order,which in turn works to the advantage of the student.

Chapter 43 contains a general discussion of Part III of theIndian Evidence Act dealing with the production and effect ofevidence. In the Act, the manner in which proof is to be pro-duced is treated under five heads- (1) Burden of proof and pre-sumptions (2) Estopel (3) Witnesses (4) Admission and (5)Rejection of evidence. These heads are elaborately discussed inthe remaining 10 Chapters.

Chapters 46 - 53 deal with witness and their examination.Tender years, extreme old age, disease or infirmity may dis-qualify persons from testifying as witnesses. Examination of awitness is done in 3 stages- (1) Chief examination which is doneby the party who calls him (2) Cross examination by the

432 COCHIN UNIVERSITY LAW REVIEW eigli

adverse party (3) Re-examination by the party who called him.A hostile witness can be cross examined by the party whocalled him. The Judge also may ask any question to the witnessor to the parties. All these aspects have been elaborately dealtwith by the author.

The last section of the Indian Evidence Act lays down thatimproper admission or rejection of evidence is not a ground fora reversal of a judgment or for a new trial of the case if thereis no failure of any substantial justice in the trial of the case.Commenting on the reasonableness of this section, the Authorsays, in chapter 54, that this section reminds us of the ultimatefact that all these rules and regulations are only a means to anend.

In Part II of the Book the summary of the chapters alreadydiscussed in Part I is included. This enables the reader to getan idea of the chapters, at a glance.

The author has also attached two appendices in his book.Appendix I narrates briefly the history of the law of evidencein India. Appendix II consists of further illustrative cases.These indeed add to the usefulness of the book.

As a whole, Prof. Atchuthen Pillai's book is an excellentpiece of work relating to the Law of Evidence in India. Theauthor has carefully arranged the topics by discussing con-nected sections together. The language is simple and unam-biguous. Ideas are clearly expressed. Sections of the IndianEvidence Act are best , illustrated by means of leading judicialdecisions. Both Indian and English decisions are discussed. Theauthor has tried to make his work uptodate by attaching the`Addenda' including latest Indian decisions. Errors in citationsand grammatical errors should have been avoided. The bookis, indeed, a very good aid for students of law at the LL.B. level.

A. PRASANNA*

B.Sc., LL.M.; Advocate, Ponkunnam, Kottayam District, Kerala.