FEDERATION VERSUS FREEDOM 335
Indian politicians have expressed their sense of sorrow and resentment over the fact that the Indian Legislatures have not been given by the Act any constituent powers.
Under the Government of India Act neither the Federal Legislature, nor the Provincial Legislature have any powers of altering or amending the constitution. The only thing, which the Act by virtue of section 308 does. is to permit the Federal Legislature and Provincial Legislature to pass a resolution recommending any change in the constitution, and make it obligatory upon the Secretary of State to place it before both Houses of Parliament. This is contrary to the provisions contained in the Constitutions of the United States, Australia, the German Federation and Switzerland. There is no reason why constituent power should not have been given within certain defined limits to the Legislatures in India when they were fully representative of all sections and of all interests. Be that as it may, the fact remains that the Indian Legislatures cannot make any changes in constitution, not even in the franchise, much less in making the reserved subjects transferred. The only authority which can change the Constitution is of course the British Parliament. But very few seem to be aware of the fact that even Parliament has no powers to alter the Federal Constitution. This, however, is the truth and the sooner we all realize it the better.
From this point of view the importance of Schedule II cannot be overestimated. I am sorry, it has not received the attention which it deserves. Schedule II is not only a charter but is also a chart along which the Constitution can move. The whole Schedule is worth careful study. What does Schedule II say ? Schedule II says that certain provisions of the Government of India Act may be amended by Parliament and that certain other provisions of the Act shall not be amended by Parliament. That is simply another way of saying that Parliament is not supreme and that its right to alter the Constitution is limited.
What would happen if Parliament did amend those provisions of the Act which Schedule II says shall not be amended by Parliament ? The answer, which Schedule II gives, is that such an Act will have the effect of ‘affecting’ the accession of the States to the Federation, which means it will have the effect of destroying the binding character of the Instrument of Accession. In other words, if Parliament amended any of the provisions of the Act, which Schedule II says shall not be amended, the Princes would get the right to secede from the Federation. I am aware that some eminent lawyers have taken a different view. They hold that the Princes, once they come into the Federation, cannot go out of it. I have mentioned my view for what it is worth and I will say that my view is not altogether baseless.
At any rate the Solicitor-General and Secretary of State gave the same interpretation, as I am giving, in the House of Commons, when the Government of India Bill was being discussed.