Introduction to the Constitution of India PDF

Introduction Constitution of India brought into force on 26/1/1950 A Constitution means a document having a special legal sanctity which sets out the frame work and the principal functions of the organs of the government of a State and declares the princi...

Introduction Constitution of India brought into force on 26/1/1950 A Constitution means a document having a special legal sanctity which sets out the frame work and the principal functions of the organs of the government of a State and declares the principles governing the operation of those organs. ► Constitutional Law means the rule which regulates the structure of the principal organs of the government and their relationship to one another, and determines their functions. The rules consist both of legal rules in the strict sense and of usages, commonly called conventions, which without being enacted are accepted as binding by all who are concerned in the government. Historical backgrou ► All constitutions are the heirs of the past as well as the testators of the future. ► The British period in the history of India began with the incorporation of East India Company in the year 1600 in England. Various growth of our constitution: 1. 1600-1765 2. 1765-1858 3. 1858-1919 4. 1919-1947 5. 1947-1950 1600-1765 The Coming of the British ► Britishers came to India in 1600 as traders in the form of East India company ► Attracted by the stories of the fabulous /tremendous wealth of India and fortified/encouraged adventurous activity of the Elizabethan era Englishmen were eager to establish commercial contacts with the East. ► To facilitate such a venture some of the enterprising merchants of London formed themselves into a company. The company secured for it a Charter from Queen Elizabeth in December 1600 which settled its constitutions, power and privileges. ► The Charter/Agreement vested the management of company in the hands of a Governor and 24 members who authorize to organize and send trading expeditions /journey to the East India. ► The charter granted the company a monopoly of trade with the East. ► It had authority to keep an armed naval force for its security. It had authority to keep an armed force for its security. ► The charter granted for 15 years and was terminated on two years’ notice. ► Fortified/Encouraged with the Charter, the company started establishing its trading centers or factories at several places in India. ► 1612 First settlement of company at Surat with the help of Jehangir who granted land and other concessions. ► 1639 – Madras ► 1693 – Hariharpur ► Bombay, Madras and Calcutta became chief settlements or presidencies of company. Legislative power ► The Charter of 1601 granted to the Governor and the company the power to make, ordain and constitute such and so many reasonable laws, constitutions, orders and ordinances for the good governance of the company. ► The legislative power of the company was very limited in its scope and character. ► They were no contrary to the laws, statutes or customs of England. ► It was not a power to legislate for some territory because the company was purely a trading concern and not political sovereign acquiring foreign territory. The Charter of 1726 ► Great legislative significance. ► The legislative power was vested to the court of directors in England. ► The charter also established the Mayor’s courts at Calcutta, Bombay and Madras and expressly introduced English laws into these presidencies. ► Britishers had not become a ruling power in India until the second half of 18th century. It was a period of disintegration of Moghul Empire. Its last Emperor Aurangazeb was dead. ► The East India company took full advantage of this chaotic situation and gradually established. ► 1757 : East India company won the battle of Plassey against Sirajuddaulla, Nawab of Bengal, had laid foundation of the British Empire in India. ► In 1765 Shah Alam granted Diwani i.e. responsibility to collect revenue to the company, which automatically involved the administration of civil justice. 1765 was turning point. II – 1765-1858 Beginning of British Rule ► Regulating Act 1773: grant of Diwani made the East India Company real masters of Bengal, Bihar and Orissa. - Company became responsible for administration of civil justice and collection of land revenue. - It was difficult so taken over and left to Indians. ► The Company appointed two English officers to supervise the working system. ► This system proved to be harmful to the country ► The Indian official who were responsible for administration had no effective power to enforce their decisions. ► Company’s servants were real rules had on responsibility and they exploited the situtation for their selfish ends. ► Officers were directly responsible to the court of directors of England. ► The Governors and Councilors were appointed from among the servants of the company. ► After the Battle of plassey ,the administration of company deteriorated. ► The servants of company exploited the Indian, amassed/collected wealth and returned to England. ► Bengal famine – company approach British Govt. for a huge loan. ► Servants of company were getting richer ► Company heading bankruptcy ► These led the British public to suspect that something was wrong with the administration of company. ► 13/4/1772 secret committee was appointed. ► Committee in its inquiry reports, exposed several defects and deficiencies in the administration of East India Company and must suggested that the affairs of the company must be regulated by Parliament. ► Consequently, the Parliament passed the Regulating Act of 1773. ► This Act is the first Act of British Parliament which established a definite system of Government of India. It did the following things: 1. Changed the constitution of the Company in England.  2. Recognized the Government of Calcutta 3. Brought the Presidencies of Bombay and Madras to some extent under the control of the Governor General of Bengal 4. Established a Supreme Court at Calcutta. (a) Home government : (b) Form of Government in India (c) Legislative Power (d) Supreme Court: The 1773 also provided for the establishment of a Supreme Court at Calcutta consisting of Chief Justice and 3 other judges who were to be barrister of at least 5 year’s standing. - They were to be appointed by Crown – hold office during crown pleasure. - Court vested civil, criminal, admiralty and ecclesiastical/religious jurisdiction - SC jurisdiction extended to all British subjects residing in Bengal and Orissa - The Governor-general, Councilors and Judges of SC were exempt from arrest - Appeal from the SC lay to the King-in-Council in England. The court was to try cases by jury/Bench. - The objects of Act was good but the system it establish was imperfect. ► 1773-Act Suffered from many defects 1. Did not define relationship of the governor-general and his council and Supreme court 2. Did not make clear as to what law the SC was to administer 3. Placed the Governor-General at the mercy of his Council The Act of Settlement, 1781 ► Parliament passed this Act to remove the defects of 1773 1. Exempted action of public servant of company done in official capacity 2. Tried to settle the question of jurisdiction of the court over servants of company and native inhabitants/residents. 3. It made it clear as to what law to be applied by the SC 4. The Act recognised and confirmed the appellate jurisdiction of the Governor-General-in- Council in cases decided b the Mufassil Courts. 5. It empower the Governor-General-in-Council to frame regulations for the Provincial Courts and Councils also. The Pits India Act, 1784 ► The Act of Settlement of 1781 could not cure the defects of the Regulating Act and agitation for an effective control over the Company’s Indian affairs continued. ► The matter raised in Parliament and Parliament appointed two committees. ► The Committee recommended for the recall of the Governor-General Warren Hastings and the Chief Justice Impey. ► But Court of Proprietors refused to recall them. ► This demonstrated the inadequate degree of parliamentary control over the company and its administration. ► To remedy this situation the Pits India Act was passed by the Parliament. ► Act distinguished between commercial and political functions of the company The Charter Act of 1793 ► The Charter Act of 1793 renewed the company’s monopoly of trade for a further period of 20 years. The Charter Act of 1813 ► It took away the exclusive right of the company to trade in India. ► The Indian trade was thrown open to all British Merchants. ► By this charter the British Crown asserted greater control over the power of the Councils ► Henceforth the regulations made by the three Councils in India were required to be laid before the Parliament. ► The monopoly of East Indian Company taken away The Charter Act of 1833 ► The Act led to the centralization of power in the hands of the Governor-in-General-Council by vesting the legislative power solely in him. ► the Governor-in-General-Council was empowered to make laws and regulations for all persons whether British or native, foreigners or others, places and things within the territory of the Company. ► The laws made under previous Acts were called Regulations but the law made under 1833 called Acts of Parliament. The Charter Act of 1853 ► Last Charter Act enacted between 1793-1853. ► Took decisive step in separating the Legislative machinery from the executive. ► Act created a separate legislative Council for India consisting of 12 members. ► The Council of the Governor-General was enlarged for legislative purposes by the addition of 6 new members. ► Mutiny of 1857 only accelerated this process and brought the career of the East India Company to an end. 1858-1919 – End of Company’s Rule ► The object of Pits India Act to introduce double government failed. ► Board of control failed to have proper control over company’s affairs. ► As a result, the Company’s Government in India became thoroughly irresponsible. ► Circumstances going against the company, the Mutiny of 1857, the first word war of Independence gave death blow to the Company’s rule. ► As a result of all this, British Parliament passed the Act for the better Government, the Government of India Act, 1858. ► The Act of 1858 transferred Government of India from the Company to the British Crown. ► India henceforth to be governed by and in the name of her majesty. ► The Board of Control and the Court of Directors were abolished and their powers were transferred to one of Her Majesty’s Secretary of State. ► The power of the Crown were to be exercised by the Secretary of State for India assisted by a Council of 15 members. This was known as Council of India. ► 8 of its members were appointed by the Crown. ► Remaining 7 were to be elected by the Court of Directors. ► Future vacancies were to be filled up by the Crown. The Council was an advisory body. ► The Secretary of the State was made the Chairman of Council. ► Accounts of annual produce of revenues of India were required to be submitted before parliament by the Secretary of State. ► The law member and Advocate-General or the Governor-General-in Council of India were to be appointed by the King. ► The Act of 1858 constituted the Secretary of State Council as a body corporate, capable of being suing and being sued in India and in England. ► The transfer of Company’s Government to the British Crown was announced by a “Royal Proclamation” made by the Queen of England. ► The proclamation/declaration had a great constitutional importance. ► Passing of 1858 closed one great period of history and ushered in another great era- the direct rule of the Crown. Indian Council Act of 1861 ► Under this Act, Indians were for the first time associated with the work of legislation ► Legislative Power: The Indian Council Act,1892 ► It achieved 3 things 1. It increased the number of members in the Central and Provincial Council 2. Introduced the election systems partially and 3. Enlarged the functions of the Councils. -The Governor General’s Council was to have not less than 10 and not more than 16 members - He was empowered to make regulations for the nomination of additional members. ► Systems of election was defective. ► It did not give the representation to the people in the real sense. The Indian Councils Act of 1909- Morley Minto Reforms ► First attempt to introduce a representative and popular element was made by Morley Minto Reforms known by the names of the Secretary of State(Lord Morley) and (Lord Minto)which were implemented by the Indian Coucils Act 1909. ► The size of Legislative Council, Central and Provincial increased (16 to 60). ► Powers increased ► Councils empowered to discuss any matter. 1919-1947 – Introduction of Self- Government ► The Government of India Act, 1919- Montagu-Chelsmford Report : ► Next landmark in the constitutional development of India was the Motagu-Chelmsford Report which led to the enactment of the Government of India Act, 1919. ► The Morley Minto Reforms failed to satisfy the aspirations of the Indians as they did not establish Parliamentary system of Government in the country. ► Indian National Congress became very active during the time of the first World War and pressed for reforms. ► In response to this popular demand the British Govt. made a declaration on August, 20, 1947 that the future policy of His Majesty’s Govt. was that of “increasing associations of Indians in every branch the administration and the gradual devt. Of self-governing institutions with a view to progressive realisation of responible Govt. in British India as an integral part of the British Empire”. ► No doubt this was the step which paved the path for Independence of India. Main features of the 1919 Act 1. The Declaration: it Promised a responsible Government to the Indians. 2. Dyarchy in the provinces : Dyarchy means double rule. The object of the Dyarchy was to train the natives in the act of self-government. 3. In matter of legislation subjects were divided into Central and Provincial/State. Shortcoming of Act of 1919 ► The Reforms of 1919 however failed to fulfill aspirations of the people of India which led to an agitation by the Congress for “Swaraj” or “Self—Government” to be attained through non-co-operation. Its reasons were: ► (1) Non-fulfilment of the demand for responsible Government: ► (2) The failure of Dyarchy: Simon Commission: ► British Government appointed a Statutory Commission known as Simon Commission. ► The Government of India Act had provided for the appointment a Statutory Commission after the expiry of ten years of the passing of the Act to inquire into and report on the working of the Act in 1927. ► The commission headed by Sir John Simon submitted report in 1930. ► The report was considered at a Round Table Conference, consisting of the representatives of the British Government and of British India as well as the Rulers of the States. ► A white paper was prepared ► A white paper was submitted to the Select Committee of Parliament ► In accordance with recommendations of the Select Committee the Government of India Bill was introduced in the Parliament and passed with certain amendments as the Government of India Act, 1935. The Government of India Act, 1935 ► Regarded as a full responsible government ► It was a lengthy document, detailed and complicated having A-321 with 10 schedules ► Basic features of the Act were, the Introduction of partial responsibility at the Centre, Provincial autonomy and an All India Federation. 1. The All India Federation: comprising of the British India Provinces and such Indian State who would desire to come into the Federation. 2. Earlier Govt. Acts, the Govt. of India were unitary. 3. The Act of 1935 proposed a Federation taking the Provinces and the Indian State as one unit. ► But the accession of the States the Federation was optional. ► It could not be established until the States had given their assent to joint the Federation. ► At the time of joining it, each ruler of the State was required to sing a Instrument of Accession mentioning therein the extent to which it consented to surrender its authority to the Federal Government. 2. Dyarchy at the Centre ► The Act of 1935 abolished Dyarchy at the Provincial/state level and introduced it at the Centre. ► The Executive Authority of the Centre was vested in the Governor-General. ► The federal subjects divided into two categories: “reserved” and the “transferred” ► Reserved: Defence, external affaires, ecclesiastic(Religion) and tribal area 3. Provincial/State Autonomy ► It marked the beginning of Provincial Autonomy ► An advance on the Act of 1919 ► Divided legislative power between State and center ► The Governor was to required to act with the advice of ministers responsible to the Legislature 4. Federal Legilsature ► Two houses : Council of states and Legislative Assembly ► Legislative House (Lower House) to consist of 375 members, 250 of British Indian Provinces and 125 representing the Indian States ► Upper House : 260 members out of which 156 embers were to represent British India, 6 representative to be nominated by Governor-General and rest elected directly. ► 104 members were to be nominated by the Princes of Indian States ► Power of the Federal Legislature were extremely limited. ► Demands of supply of and financial were to originate in Lower House ► If there was any difference between two houses, joint session of the two houses for solving the deadlock. 5. Provincial/State Government ► Consist of Governor & Council of Ministers to advise him. ► Governor was head of Executive ► 3 types of powers: a. discretionary b. power exercised in the individual judgment c. powers to be exercised to be exercised on the advice of the members ► Matters involving his special responsibility Governor had right to override the advice given by ministers 6. Provincial Legislature ► After this Act, the Legislatures of Bombay, Bengal, Madras, Bihar, Assam and United Provinces were made bicameral (two houses) ► And in other provinces unicameral. 7. Distribution of Legislative power between the Centre and the Provinces ► Three fold division: federal list, provincial list and concurrent list The Federal Court(SC) ► The Act established a Federal Court. ► One chief justice and not more than 6 other judges – the retiring age 65 years ► Necessary qualifications also stated in Act ► The judges were appointed by the Crown Jurisdiction of Federal Court ► Original, appellate and advisory ► An appeal could go to the Privy Council (highest court of British) from decisions of Federal Court ► In 1939 the 2nd World War broke out in Europe. The British govt. declared India as belligerent/aggressive country at war with Germany. This was done without consulting Indian leaders and Indian Legislatures. Consequently the Indian leaders resigned from office on the issue of participation of India in war. The Cripps Mission ► In the year 1942 the British Govt. realised that it was difficult to remain indifferent towards the Indian problem any longer. ► Therefore, on march 22, 1942, the British Govt. sent Sir Stafford Cripps to negotiate with Indian leaders and secure their co-operation in the prosecution war. ► Sir Stafford Cripps suggested proposals for settlement of Indian problem. 1. Immediately after the end of the war steps shall be taken to set up in India an elected body for framing a new Constitution of India. 2. Provision shall be made, as set out below for participation of Indian states in the Constitution-making body. ► The Labour party came into power in England. The labour govt. was more sympathetic towards Indian and wanted to resolve the Indian problem. With this end in view, the Cabinet Mission was sent to India. The Cabinet Mission, 1946 ► Came to India 4th March 1946 ► Three British Cabinet Ministers – Lord Pethic Lawrence, Sir Stafford Cripps and Mr. Alexander. The mission recommended the following proposals: 1. There should be India embodying both British India and states and with exceptions of certain reserved subjects, all were to be retained by the States 2. The paramountcy of Crown was to lapse 3. For the purpose of framing a new Constitution a Constituent Assembly was to be elected. 4. An Interim Govt. was to set up having the support or more political parties The proposal were accepted and in July 1946 elections to Constituent took place. The Indian Independence Act, 1947 1. The Act provided for the creation of two independent Dominions, India and Pakistan from 15 August, 1947. 2. Each dominion was to have a Governor-General who was to be appointed by the King 3. The Constituent Assemblies of both Dominions were empowered to frame laws for their respective territories till the new Constitution came into force. 4. After August 15, 1947 the British was not to control the Dominion or the Provinces 5. For the time being, till the new Constitutions were framed, each of the Dominions and the Provinces were to be governed by the Government of India Act, 1935 6. The Post of Secretary of the State for India was to be abolished and was taken over by Secretary of the Commonwealth of Nations 7. The Act proclaimed lapse of British paramountcy Indian States