V.N. SHUKLA*S THE CONSTITUTION OF INDIA. By D. K.

Singh
(Ed.). 6th ed. 1975. Eastern Book Company, Lucknow. Pp. lxxxxvi
+714. Rs. 55.
THE CONSTITUTION of India is a growing Constitution. As the child
grows, so also the constitution grows, and like the child it has to pass through
the roughs and toughs of life. The constitutional developments of the last
twenty-five years in India constitute a "full-fledged study."
Late V. N. Shukla needs no introduction to students of constitutional
law. He was probably the first one to introduce the Constitution through his
treatise, 'The Constitution of India\ which was published on June 1,
1950 when the Constitution was just about four months old. And since then,
his book has been much in demand. The next four editions of the book
appeared in 1955, 1960, 1964 and the 1969. The 1969 edition was reprinted
in 1972.
Shukla's treatment of the Constitution is 'article-wise'. No doubt, it helps
the reader in understanding each article of the Constitution, but this kind
of treatment is problematic also. Each aspect of the Constitution may involve
different articles and to co-relate them may be a big exercise, particularly for
those who are 'new' to the Constitution. It is like the doctor's dilemma. He
finds the patient suffering from different ailments but is unable to co-relate
them in order to give him a 'full treatment'. In spite of this handicap, the
author has dealt with the subject in a well-knit manner. This book indeed
speaks of his masterly treatment of the subject. Another worthy feature of
the book is that it carries a very useful and informative 'Introduction*. In the
first edition, the introduction had been divided into two parts, 'Historical
Retrospect' covering the constitutional developments up to the framing of the
Constitution and 'Fundamental Aspects of the Present Constitution'. In the
second edition, the third part dealing with 'Judicial Interpretation' was added.
This introduction as a whole covers the journey of the Constitution from the
past to the present,
Shukla wrote in the preface to the first edition of the book :
It is only proper to remark that the best commentary on the cons-
tutition of a country is provided by its actual working. It is only
after a constitution has been tried for some time that one can be in
a position to say something definite about it and arrive at sound con-
clusions as regards its good and bad points. Time will thus provide
the best commentary on the Constitution of our country.
How true these words are ! The Constitution of India has been tried for
ttiore than twenty-five years now. A definite constitutional jurisprudence has
developed over the years which indeed needs an expert's treatment.

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184 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 18 :1

The present sixth edition of Shukla's book has come on the occasion of
the Silver Jubilee of the Constitution and of the book itself, but after the sad
demise of the celebrated author. This edition has been brought out by a well-
known student of Shukla, D.K. Singh, Professor of Law at the Delhi Uni-
versity Law Faculty. A comparison of the two editions bears testimony to
the fact that D.K. Singh's main concern was not to tamper with the original
scheme of the work and at the same time to bring the book up-to-date. To
be sure, there has been an overall improvement in the book. The dissection
and analysis of some portions of the book will help us in appreciating the
book better.
(0 Certain changes have been introduced in parts II and III of the
introduction. The sub-titles 'Democratic Republic' and 'Sovereignty' have
been changed to 'Sovereign Democratic Republic—The Preamble.' Then
there is a change in order. The sub-title 'The Form of Government' has been
brought after the subtitle. "Form of the Constitution". This was necessray
because from the form of the Constitution, one comes to know the form of
government. Certain new sub-titles have been added: Rule of law,1 Legislative
Intent,2 Marginal Note,3 Expressio Unius est exclusio alterius,3a Doctrine
of severability36 and Doctrine of prospective overruling.4 These additions
are indeed vital in the development of Indian constitutional jurisprudence.
Besides these additions, certain parts of the introduction have been re-written5
which not only make it up-to-date but give a much clearer analysis of the
fundamentals of the Constitution.
(ii) The 'place' of the preamble in the Indian Constitution has been
explained by referring to the latest fundamental rights case8 where it has
been held by the Supreme Court that the preamble is a part of the Consti-
tution.7 The learned author could have also dealt with an important question
which arises from this position: Can the preamble be amended like any other
provision of the Constitution under article 368 or not ? Can the preamble be
treated as one of the 'provisions' of the Constitution considering that Parlia-
ment under its Constituent powers can amend only the provisions of the
Constitution? The preamble contains the basic postulates of the Constitution.

1. See D.K. Singh (ed,), V.N Shukla's The Constitution of India Ixxix (6th ed.
1 75; [hereinafter referred to as Shukla].
2. Id. at lxxxiv
3. Id. at lxxxv.
3a. Ibid.
3b. Ibid.
4. Id at lxxxvi.
5* See e g , id. at IxiMxiii ,lxvii,lxx,lxxi-lxxii,lXxiii-lxxiv. Ixxvii-lXxviiiJxxxiv,
6. Kewvananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461.
7. Shukla at 2,

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19761 RtVIEWS 135

And in the reviwer's view, any amendment to the preamble will mean some
change in the fc basic structure' of the Constitution which is not feasible so
long as the Kesavananda BharatVs case8 holds good. So even if the preamble
is considered as one of the provisions of the Constitution (being a part of it),
still no deletions can be made out of it. At best, only additions can be made
to it which may be based on some basic provisions of the Constitution.
(iii) While dealing with article 18 which provides for the abolition of
titles, the learned author has cited with approval the views of Raghvachariar
and Ivor Jennings.9 The reviewer wishes that the author had specifically dealt
with the existing practice of our system. We have an annual feature whereby
a wide range of awards from 'Bharata Ratna' to Tadma Shri' are conferred
by the President. Are these not titles ? And cannot the writ of prohibition or
any other appropriate writ be prayed for against the state prohibiting it from
doing something which under the Constitution it cannot do? Even if no
punishment has been provided for the violation of article 18, cannot the act
be declared null and void? Seervai finds it difficult to believe that Tadma Shri'
or 'Padma Bushan' or Tadma Vibushan', and the like, are academic distinc-
tions.10 Late K. Subba Rao says that a title does not cease to be a title if the
state says that it is not one or calls it an award. In his view, all these awards
are void as they have been given contrary to the provisions of the Consti-
tution.11 And if these are titles, remedies under articles 226 and 32 are
available. V. G. Ramachandran records that article 18 merely enjoins the
state not to give titles other than in recognition of military or academic dis-
tinctions. If the state does grant it, recourse to article 32 could be had for a
writ against the recipient not to use it and against the government not to
grant such titles and declare all prior grant of titles as void.12 Merit, indeed,
deserves to be recognised for otherwise there is no incentive to work. The
conferment of titles is not a sound mode of recognition. It cuts at the root of
equality of treatment. It gives birth to a class of title-holders who may claim
superiority over other men. This needs to be avoided.
(iv) Directive principles of state policy have received a much better
treatment both in the introduction13 as well as in the main body under
article 37.14 The co-relation between the directive principles and the funda-
mental rights has been aptly summed up in tne following words :
Directive Principles of State Policy and Fundamental Rights together
constitute the 'conscience' of the Constitution . .There is no inherent

8. Supra note 6.
9. Shukla at 55.
10. H.M. Seervai, I Constitutional Law of India 283 (2nd ed. 1975-76),
11. K. Subba Rao, Some Constitutional Problems 53 (1970).
12. V. G. Ramachandran I Fundamental Rights and Constitutional Remedies 5l9
(1968).
)3. Shukla at lxxiii-lxxiv
14. Id at 179-182.

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 186 JOURNAL OF THE INDIAN LAW INSTITUTE |Vol. 18 ; I

conflict between the Directive Principles of State Policy and Funda-

mental Rights and both are equally relevant in promoting the aims
and objectives of the Constitution. However, in translating them
into socio-economic reality some degree of compromise is
inevitable.15

It is hoped that the mixture of the two will help in the promotion of the
objectives laid down in the preamble of the Constitution.
(v) Whether the President is bound to accept the advice given by the
Council of Ministers or not has been a question of some controversy.16 The
learned author is of the following view :
Under the parliamentary form of government as embodied in our
Constitution, the President is the constitutional or formal head of
the Union and he exercises his powers and functions conferred on
him by or under the Constitution on the aid and advice of his
Council of Ministers.17

The author draws support for his view from Shamsher Singh v. State of
Punjab,18 where the Supreme Court has held that

the satisfaction required by the Constitution is not the personal satis-

faction of the President or Governor but the satisfaction of the
President or Governor in the constitutional sense in the Cabinet
system of government, that is, satisfaction of his Council of Minis-
ters on whose aid and advice the President or the Governor generally
exercises all his powers and functions.180

Generally, it is true to say that the President in a parliamentary system

has to act on the advice of his Council of Ministers, who in turn is answe-
rable to Parliament, but there are certain situations where the President has
discretionary powers. The reviewer wishes that the author had dealt with
articles 60 and 61 in a little more detailed manner, Seervai observes ;
There are two other provisions of the Constitution—Arts. 60 and
61—which necessarily imply discretionary power in the President in
certain exceptional situations. Under Art. 60 the President swears

15. Id. at lxxiv.

16. See K. M. Munshi, The President under the Indian Constitution 39 (1963);
K. Subba Kao, Some Constitutional Problems 2^0-81 (1970) ; Alan Gledhill, The Republic
of India 115, 121 (1*64).
17. Shukla at 192.
18. (1974) 2 S.C.C. 831.
18a. /</. at832.

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I<tf6l REVIEWS 187

that to the best of his ability, he will "preserve, protect and defend
the Constitution and the law", and Art. 61 provides a sanction for
the fulfilment of the oath, because under Art. 61 the President can
be impeached "for violation of the Constitution". It is a necessary
implication of Arts. 60 and 61, that if the Council of Ministers should
advise the President to take action which is admittedly contrary to
the Constitution and the law, or which the Ministers are driven to
admit is contrary to the Constitution and the law, the President
should reject such advice, and if necessary, dismiss the Ministry if it
persists in its advice. And if he is unable to form another Ministry,
he can direct a dissolution of the House of the People and order a
fresh general election.19
(vr) The office of the Vice-President of India has not received the
treatment it deserves. The comments on article 70 have merely been repro-
duced from the previous edition.20 The learned author should have referred
to the President (Discharge of Functions) Act, 1969 which provides that in
the event of the occurrence of vacancies in the office of both the President and
the Vice-President, by reason in each case of death, resignation or removal, or
otherwise, the Chief Justice of India or in his absence, the senior-most judge
of the Supreme Court of India available shall discharge the functions of the
President.20" The Constitution provides for the impeachment of the President
when he violates the Constitution whereas the Vice-President can be removed
on any ground. The Vice-President is not even required to take an oath to
preserve, protect and defend the Constitution. He is only required to have
true faith in and allegiance to the Constitution.21 When a Vice-President is
acting as the President, will he be impeached under article 61 or be
removed under article 67 (b) ? The author has not dealt with this aspect of
the problem. No doubt, in the constitutional history of India this problem
has not come up so far, yet the possibility cannot be ruled out. The reviewer's
own view is that since article 65(3) provides that the Vice-President shall,
during, and in respect of, the period while he is so acting as, or discharging
the functions of, the President, have all the powers and immunities of the Presi-
dent he can only be impeached under article 61 and cannot be removed under
article 67 which is much easier. Even the Vice-President, when he takes over
as the President, is required to take the oath to preserve, protect and defend
the Constitution. In view of these provisions, it can be concluded that he
will be impeached under article 61 and not be removed under 67.
Mi) The author has dealt with the constitutional position of the
Governor fairly in detail22 which in the earlier edition had not received due

19. Supra note 10, vol 2 at p. 1069*

20. Shukla at 202.
20a. Sees. 3 (l)of the Act.
21. Art. 69 of the Constitution*
22. Shukla at 300-2*
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188 JOURNAL OF THE iNDtAN LA W INSTITUTE [VoL 18 : 1

consideration. The areas in which the Governor can "act in his discretion"
have been very carefully catalogued as also the functions in respect of which
he has no discretion. The role of the Governor has been brought out much
more 'pointedly' while dealing with the provisions of article 356.
(viii) Under article 217 (3), the author has referred to Union of India v.
G.P. Mitter™ and has summed up the position in the following words :

[T]he mere fact that the President is assisted by the machinery of the
Ministry of Home Affairs in serving communication to the judge of
the High Court, whose age is in question, does not affect the
independence of his decision. The President while determining the
age of a High Court judge exercises judicial power. Though rules of
natural justice have to be followed, oral hearing is not mandatory.24

In the reviewer's opinion, the learned author's statement does not seem
to be correct with regard to the question of oral hearing as the court had
stated in the above mentioned case :
[NJormally an opportunity for an oral hearing should be given to the
Judge whose age is in question, and the question should be decided
by the President on consideration of such materials as may be placed
by the Judge concerned and the evidence against him after the same
is disclosed to him.25
The court had also stated :
But we do not think that because the President was assisted by the
machinery of the Ministry of Home Affairs in serving notices, and
receiving communication addressed by him it can be inferred that he
was guided by that Ministry.26
On facts, however, it is difficult to say that the Ministry of Home Affairs
had only helped in exchange of communications in view of the established
fact that after the Chief Justice of India recorded his advice, the file was
received in the President's secretariat but it was not immediately submitted to
the President but was sent to the Secretary of the Ministry of Home Affairs
for putting up before the Home Minister. The Home Secretary put up the
matter before the Home Minister with the following endorsement;

A summary of the case will be found at slip 'Z'. The Chief Justice
of India has offered his odvice in his minute...after going into the

23. (1971) 3 S.C.R. 483 (the respondent's name is J.P. Mitter and not as given).
24. Shukla at 34%.
25. Supra note 23 at 505
26- M a t 493.

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1976] REVIEWS 189

relevant material. H.M. (Home Minister) may recommend to the

President that the age of Shri J. P. Mitter may be determined in
accordance with the advice of the Chief Justice of India.27
The Home Minister and the Prime Minister countersigned that
endorsement. Then the file was sent to the President who in turn accepted
the advice of the Chief Justice of India. This process which was upheld by
the Supreme Court, it is humbly submitted, is not in consonance with the law
laid down by the court itself :

[T]here must be no interposition of any other body or authority, in

the consultation between the President and the Chief Justice of
India....He cannot act on the advice of his Ministers.28

Though the two concurring judges in Shamsher Singh's case28a doubted

the proposition laid down in Mittefs case that the President in deciding a
dispute about the age of a High Court judge should act by himself without
the aid of the Council of Ministers. >et the reviewer is of the opinion that the
court in Mitter's case was correct on the point.
(ix) Satwant Singh v. Assistant Passport Officer, New Delhi, which
had not been included in the earlier edition has now been added.30 Certain
cases though already a part of the earlier edition, have now received a better
treatment. Two such cases haye been mentioned in the preface itself viz,
Gujarat University v. Shri Krishna31 and In re Sea Customs Act, 187832
Others which can be mentioned are Ram Jawaya Kapur v. State of Punjab**
dealing with the President's constitutional position and Makhan Singh v.
State of Punjab** dealing with the effect of the proclamation of emergency.
Some of the recent cases in the area of fundamental rights which have been
included and deserve special mention are : R.C. Cooper v. Union of India,55
Bennett Coleman v. Union of India36 and Shambhu Nath Sarkar v. State of
West Bengal31 overruling A. K. Gopalan v. State of Madras38 Maganlal
Chagganlal (Pvt.) Ltd. v. Municipal Corporation of Greater Bombay39 overruling

27. Id. at 495.

28a. Supra note 18 at 882.
29. A.I.R. 1967 S.C. 1836.
30. SAwfc/a at 103.
31. A.LR. 1963 S.C. 703 ; see Shukla at 416.
32. A.I.R. 1963 S.C. 1760; see id. at 468-70.
33. A.LR. 1955 S.C. 549; see id. at 192.
34. A.I.R. 1964 S.C. 381; see id. at 554-55.
35. A.I.R. 1970 S.C. 564 ; see id. at 24.
36. A.I.R. 1973 S.C. 106 ; see id. at 58.
37. A.I.R. 1973 S.C. 1425 ; see id. at 112.
38. A.I.R. 1950 S.C. 27.
39* A J.R. 1974 S.C. 2009; shukla at 36.
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190 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 18 :1

Northern India Caterers Ltd. v. State of Punjab*0 and St. Xaviers College
Society v. State of Gujarat.*1 Above all, Kesavananda BharatVs case42 in
which the Supreme Court has probably handed down the lengthiest judge-
ment42" has been very well explained by the learned author by referring to it
at relevant places.43 He has given a clear exposition of one of the most
difficult judgments.
(x) Previous editions contained useful comments on entries in different
lists of the seventh schedule to the Constitution. They should not have been
omitted. Appendix I includes only the 'Latest Constitution Amendments'
from twenty-second to thirty-seventh. The inclusion of first to twenty-first
amendments would have helped the reader inasmuch as he would not have
to refer to the earlier edition for the same and this edition would have been
more wholesome. Appendix III lists 'Selected Readings' which will be of
good use to the reader for further detailed study.
The quality of paper and printing is very good with almost no mistakes.
The publishers have shown keen interest and deserve thanks for the presentable
manner in which the book has been produced.
The book is indeed remarkable for its completeness. The Constitution
has been commented upon from cover to cover in such a lucid language and
an elegant style that the reader gets a real insight into the contours of the
Indian Constitution.
It is hoped that the book will run into many more editions and will
continue to be one of the major text books on the Constitution of India. We
look forward to its 'Golden Jubilee' edition.

Balram K. Gupta*

40. A.LR. 1967 S.C. 1581.

41. A.I.R. 1974 S.C. 1389, see shukla at 136.
42. Supra note 6.
42a. About six hundred pages of the All India Reporter.
43. Shukla at lxii, lxiii, Ixxiv, lxxxi-v, 1, 2, 25, 60, 79, 84, 151, T56, 164, 180, 18?,
581.
* Reader in Law, Panjab University, Chandigarh-14.

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