Indian constitution

General principles of Constitutional Law

What is a Constitution?A document having a special legal sanctity

which sets out the frame-work and the principal functions of the organs of the Government

• What is constitutional law?The structure of the principal organs of the government and their relationship to one another, and determines their principal functions- consists of both legal rules in the strict sense and of usages, commonly called conventions.

Historical background

It is not a political revolution but the research and deliberations of a body of eminent representatives of the people who sought to improve upon the existing system of administration.

Various phases of the growth of Indian Constitution: 1600-1765- ‘The coming of the British’-• East India Company –charter from Queen Elizabeth in

Dec 1600 to settle its constitution, powers & privileges. (Legislative Powers)

• monopoly of trade with the East, by management of a Governor & 24 members to organize and send trading expeditions to the East India.

• Had authority to keep an armed naval force for its security

Trading Centers or Factories of the Company

-at Surat in 1612, Musulipattam(Madras), in 1639, Hariharpur in Mahanadi Delta in 1690.• Bombay, Madras & Calcutta became the Chief settlements or

presidencies of the Company.• The administration of these companies were carried by a

president & a Council composed of the servants of the company.• The ‘legislative power’ was designed to enable the company to

regulate its business & to maintain discipline among the servants.

• Legislative powers of the company are the ‘germ out of which the Anglo-Indian Codes’ were ultimately developed .

• The Charter of 1726 –-legislative powers were vested with the Court of Directors in England.(they were not conversant with the conditions prevailing in India)-Governor and Council of three presidencies were authorized to make rules, ordinances, bye-laws for the good governance of the company and impose punishment for their contravention.-The laws cannot be contrary to the laws and statutes of England.

Mayor’s Courts-at Calcutta, Bombay & Madras Mayor’s Courts were established and expressly introduced English laws into these Presidencies.- Till the half of 18th century(death of Aurangzeb), the Britishers

had not become ruling power in India.- The victory of the company in battle of Plassey in 1757 against

Sirajuddaulla laid the foundation of the British Empire in India.- 1765 Shah Alam granted Diwani i.e. collection of revenue to

company, which automatically involved the administration of civil justice.

- By this the company threw the mask of traders & appeared in the true garb of rulers.

1765-1858 – Beginning of the British Rule

the grant of Diwani made the Company real masters of Bengal, Bihar, Orissa.It was difficult to maintain the civil justice and collection of revenue – resulted in appointment of Indians under the supervision of English Officers.Indians were given responsibilities without any authority, they were paid salary which was ridiculously small.

Regulating Act 1773

made the following changes: (a) changed the constitution of the Company in

England.(b) Recognized the Government of Calcutta(c) Brought the Presidencies of Bombay and

Madras to some extent under the control of the Governor-General of Bengal

(d) Established a Supreme Court at Calcutta.

• Supreme Court was established by the authorization of the British Crown under the 1774 Charter, became an institutional which was disliked and dreaded equally by the officers of the Government and especially Indians.

• The Supreme Court was established at Fort William, Calcutta.

• Composition: Chief Justice + 3 Judges who were barristers of England with 5 years experience.

Nanda Kumar Case (A judicial murder)

• Raja Nanda Kumar, was residing in Bengal and was big Zamindar.

• In March,1775 he laid a letter before the Council member with charging allegations against Warren Hastings.

• According to the letter Warren Hastings received bribe from former Nawab wife Munni Begam for granting a Zamindari.

• Immediately council members arranged meeting to issue summons to Nanda Kumar to attend before council to produce vouchers in support of his charges of bribery against Hastings.

• With the summons of Council, Nanda Kumar produced a letter in person which was written to him by Munni Begum.

• The Council majority decided that Hastings received a sum of Rs.3,45,105 as bribe and directed him to refund the money to the company’s treasury.

• While charges against Warren Hastings were still in pending which were subsequently dropped, Nanda kumara was suddenly arrested at the instances of a Calcutta merchant Mohan Das on a charge of forgery.

• He was also implicated in a case of conspiracy when in the absence of proof was dropped. he was put on trial before the Supreme Court presided over by the Sir.Elijah Emphey on the charges of forgery.

• The trail began on 7th June 1775 & continued for a period of 8 days without any adjournment.

• On the basis of Mohan Prasad evidence, the verdict of guilty was returned by the jury and RajaNanda Kumar was condemned to death under the statute passed by the British parliament in 1729.

• The death sentence was duly exeuted on 5th August, 1775

Peculiar features of trail

• Charge preferred against Raja Nanda Kumar was shortly after he had leveled charges against Warren Hastings.

• Chief Justice imphy was a close friend of Hastings.• Every judge of the Supreme Court cross examined the

defense witness due to which the whole defense of Nanda Kumar collapsed.

• After the trail, when Nanda Kumar was held guilty by the Court he filed an application for granting leave to appeal to the King-in-Council but the same was rejected.

Judicial Murder

• Nanda Kumar committed the offence of forgery nearly 5 years before the establishment of Supreme Court.

• Neither under Hindu Law nor under Mohammedan Law forgery regarded a capital crime.

Patna case 1777-1779

• Shahbah beg khan, native of Kabul came to India and settled down in Patna.

• He married Nadirah Begum & acquired a large amount of money while in the service of company.

• He had no issue, therefore he invited his nephew Bhadur Beg from Kabul to reside with him in the intention to adopt him, but died before he could do so.

• Bahdur Beg took the first step and filed a suit against the Begum in the Patna Provincial Council getting right over the property.

• In the provincial court the case placed before Muhammadan law officers, the officers after full hearing reported to the council that gift deeds were forged documents and no gift was made in favour of Nadirah Begum by deceased.

• They also reported that the nephew, bahadur beg court not be adopted under Muslim law.

• Therefore, recommended that property be divided into 4 parts out of which 3 parts were to be given to Bahdur Beg on the basis of Consanguinity and also heir of the deceased and the 4th part be given to the widow.

• Nadirah Begum was dissatisfied with the decision of the provincial council, and she filed an appeal before the Sadar-Diwani-Adalat at Calcutta.

• Later on the order she went in appeal before the Supreme Court against Bahdur Beg, Kazi & Mufti for assault, battery, unlawful imprisonment and claimed 6 lakhs as damage.

• The Supreme Court issued ordered to arrest Bahadur Beg, Kazi & mufti.

• The Supreme Court decided that the documents were genuine & that Kazi & Mufti did not act in good faith.

• The court awarded the damages of Rs. 3,00,000 in favour of Nadirah Begum and the law officers were imprisoned.

• The whole case was bitterly criticized on the grounds that which law Bahadur beg and law officers were subjected to the jurisdiction of the Supreme Court.

• The Supreme Court justified his jurisdiction over Bahadur Beg as a former and paying land revenue tit the company.

• Both the parties were Muslims to which the Mohammedan Law of inheritnece was to apply. It was purely a matter of personal law to Mohammedans.

• There were no written agreement between the parties to submit the case to the Supreme Court for a decision.

Kamalludin Case1775• Kamamaluddin a farmer of Hugli was court’s control by the

Calcutta Revenue Council on the ground of arrears of revenue.

• The revenue council released to orders to arrest kamaluddin.• He approached the Supreme Court for a writ of habeas

corpus & court given bail till the enquiry as his obligation to pay was completed.

• Same time court directed the council to accept bail for Kamaluddin’s appearance in the Diwani court & not to take him into custody until his under renter had been called upon to pay the rent.

• The council thought that according to the 1773 Act, the court had no right to interfere in revenue collection.

• 3 members of the council suggested that court order should not be recognized & obeyed.

• But some time later Kamalluddin was arrested again and he again obtained writ of Habeas Corpus and he was finally discharged by the Court.

• Chief Justice Imphy in a letter to the Court Director justified court’s action on 2 grounds:

-it is the usual practice for the Revenue Council to take bail and so the court made the direction for taking bail. -it has been established practice to demand rent from the under tenant before demanding much less imprisoning the former and the court order was consistent with the practice.

Cossijurah Case

• Raja Sunder Naraine Zamindar of Cossijurah took a very big amount from kasinath who was a financer of Calcutta.

• The loan remained unpaid for a considerably long time, consequently kasinath brought a suit against the Zamindar in the Supreme Court.

• The Zamindar went under ground to abvoid his arrest.• The collector of Midnapur informed the Governor

General due to the Zamindar absence, the revenue collection was suffering.

• Based on the advices of advocate general, government directed the Zamindar not to attend before the Court.

• Governor general also stated that no Zamindar was subject to the jurisdiction of the Court. With the absconding of zamindar court issued orders to seize property of Zamindar.

• The sheriff of Calcutta with some forces was sent by the court to execute the orders of Supreme Court and they arrested Zamindar also.

• On hearing about this incident the Governor General in council sent a small forces to arrest sheriff and his party and release the Zamindar from arrest.

• The governor general’s forces arrested the Sheriff along with his party and they were released afterwards.

• The judges were became angry and felt insulted. However, the court took an action against North Naylor, Advocate General, on the plea that the wrongly advised the governor general for defying the orders of the Court and he was tried and sent jail.

The Act of Settlement, 1781To remove the defects of Regulating Act 1773 and to bring about the following changes --it exempted the actions of servants of company done in official capacity from the jurisdiction of the Supreme Court. -redefined the jurisdiction of the Supreme Court over the company servants and the native inhabitants.-made clear as to what law to be applied by the Supreme Court.-recognized & confirmed the appellate jurisdiction of the governor-general-in-council in cases decided by the Mufassil Courts.-empowered governor-general to frame regulations for the provincial courts and councils also.

The Pitts India Act, 1784The act of settlement could cure the defects of regulating act, hence was the Pitts India Act passed- two committees were appointed distinguishing commercial & political functions of the company.Political functions – had Board of 6 commissioners known as ‘Board of control’ appointed by the king & were to hold office during his pleasure.Board was to superintend, direct and control all operations of the civil & military governments of the British possessions in the East India.‘The act 1793’,the next act renewed the company’s monopoly to trade for a further period of 20 years.

The Charter Act of 1813• the monopoly of East India Company was taken away & Indian

trade was thrown open to all British subjects.• British Crown asserted a greater control over the power of the

Councils.• ‘The Charter 1833’: the Governor-General of Bengal was

henceforth to be styled as Governor-General of India – the centralized legislature power was solely vested in him.

• He was empowered to make laws irrespective of British or native, foreigners or others, places & things within the country.

• A person known as ‘law member’ was appointed but he had no power in execution.

The Charter of 1853This was the last charter enacted between 1793-1853 – took a step in separating legislature from executive.-the act created a separate legislative council for India consisting of 12 members.-legislature was for the first time treated as a special function of the Government requiring special machinery and special process.-no law made by the Council could be promulgated without the assent of the Governor- General who had the power to veto any bill of the Legislative Council.-this act paved way for the transfer of Indian Territories to the Crown and the career of East India Company to an end.

1858-1919 – End of Company’s Rule

The Mutiny of 1857, the first war of independence gave death blow to the Company’s rule. As a result for the better administration, government act of India 1858 was passed.-transfer of Government of India from Company’s hand to the British Crown, by a Royal Proclamation made by the Queen of England, which had a great constitutional importance.-India was henceforth to be governed by & in the name of Her Majesty.-the powers of crown were to be exercised by the secretary of State for India assisted by a Council of 15 members known as ‘Council of India’.-Annual produce of the revenues of India were taken into count by the secretary of State & report submitted to President.-the act constituted the Secretary of State in Council as a body corporate, capable of suing and being sued in India and in England.

Indian Council Act of 1861

• This act is of basic importance, which provided India with the framework of Government which lasts till date. For the first time Indians were associated with the work of legislation and it laid down the foundations of the policy of legislative devolution which resulted in the grant of almost complete internal autonomy to the provinces in 1937

• The Governor-General assent on every bill was necessary & then it could become an Act.

Indian Councils Act, 1892

• Achieved three things- increased the number of members(from 12 to 20) in the Central and Provincial Council, introduced the election system partially (no representation of people in real sense), enlarged the functions of the Councils.

• Today’s election system and executive working condition is the out come of Act of 1892

Morley Minto Reforms – The Indian Councils Act of 1909

• Secretary of the State Morley and Viceroy Minto implemented an act in1909-

-size of councils were increased from 16 to 60.-powers of the Legislative Council were empowered to discuss any matter, ask questions & supplementary questions.-had the right of discussing & moving a resolution on the financial statement but they were not given the power of voting

1919-1949-introduction of Self-Government

• Montagu-Chelmsford Report – the Government of India Act 1919: as a result of failure of Morley Minto reforms as it did not favour parliamentary form of Govt and the people of India were aspirants for the reforms in the existing laws, hence act of 1919 was passed.

• gave a way for increasing association of Indians in every branch of the administration and the gradual development of self-governing institutions with a view to progressive realization of responsible Government in British India as an integral part of the British Empire.

• this was the step which paved way for Independence of India.

Main features of Act of 19191. The declaration for responsible government to the Indians.2. Dyarchy in the provinces : di-arche –double rule – central &

provincial, provincial further divided into ‘reserved’ and ‘transferred’

-Jail, police, justice, finance and irrigation were reserved and kept in the hands of Governor-General & his Executive Council.-Education, Agriculture, Local Self-Government, etc., of lesser importance were transferred to the Indian ministers and the Governors.3.Central Government 4. Structure of Government to remain unitary.

The Government of India Act, 1935

• Second mile stone on the highway leading to a full responsible Government.

• A lengthy document, detailed and complicated having 321 sections with 10 Schedules

Salient features of The Government of India Act 1935

1. The All India Federation: - Establishment of All India Federation comprising of the British India Provinces and such Indian State who would desire to come into the Federation.

-under all the previous Government of India Acts, the Government of India was unitary, the act of 1935 proposed a Federation taking the Provinces & the Indian States as one unit.-accession of the States to the Federal was optional & at the time of joining each ruler of the state was to sign an Instrument of Accession.-the rulers of India never gave their consent hence the federation envisaged by the Act never came into being.

2. Dyarchy at Centre: the Act abolished Dyarchy at the Provincial Level & introduced at the Centre. The executive authority of the Centre was vested in the Governor-General.-Federal subjects were divided into ‘reserved’ & ‘transferred’ subjects.-Governor-General were to act on the advice of his Council of Ministers.

3. Provincial Autonomy: resulted in division of Legislative power between the Provincial and Central Legislature and within its defined sphere the Provinces were no longer delegates of the Central Government but were autonomous units of administration.-by this the Government of India assumed the role of a Federal Government, though the Indian States not join the complete scheme of Federation.

4. Federal Legislature: were to consist of 2 Houses, the Council of States &the Legislative Assembly.-the Legislative assembly (Lower House) was to consist of 375 members, 250 of British Indian Provinces and 125 representing the Indian States. Its tenure unless dissolved was for 5 years.-the Council of States (Upper House) was to consist of 260 members, out of which 156 members were to represent British India & 6 representatives to be nominated by the Governor-General and the rest elected directly.-financial bill to get originated from the Lower House.-any differences between the 2 houses, joint session was held.

5. Provincial Government: was to consist of the Governor and a Council of Ministers to advice him. The governor was the head of the executive. -he had 3 types of powers- (a) discretionary (b) powers exercised in his individual judgment (c) powers to be exercised on the advice of the ministers. But in regard to matters involving his special responsibility he had right to override the advice given by the ministers.

6. Provincial Legislatures: the legislatures of Bombay, Bengal, Madras, Bihar, Assam and the United Provinces were made bicameral (i.e.2 houses) and the other 5 provinces were unicameral. -the composition of provincial assembly varied from province to province. The voting qualifications for the members were not same in all provinces. -Normal duration of the assembly was 5 years. -the provincial legislature had power to make laws on the subjects given in the provincial list.-no bill can become an act without the assent of the Governor.

7.Distribution of Legislature power between the Centre & the States: three fold division of power (a)Federal List: 59 subjects of national importance & essential and vital for the existence of federation like external affairs, currency, coins, naval, military etc. (b)Provincial List:54 subjects of local importance like police, provincial public services, education etc.(c) Concurrent List:26 subjects of provincial and local in nature which required uniform policy throughout India like criminal law, criminal procedure, civil law, marriage and divorce etc.

8. Federal Court: the Act established Federal Court consisting of 1 CJ & not more than 6 other Judges. Retiring age was 65 years. Necessary qualification was also prescribed. They were appointed by the Crown.-Jurisdiction- original – dispute between Federation & its units or the units inter se. appellate – from the judgment of any High Court – certified that the case involved a substantial question of law as to interpretation of the Government of India Act, 1935. Advisory – governor could refer any question of law to the Court to obtain its opinion whenever he liked to seek its advice.

Cripps MissionThe following proposals were made for the settlement of the Indian problem-• Steps shall be taken to set up in India an elected body for framing a new

Constitution for India• Provisions shall be made,• for participation of Indian States in the Constitution-making body• The Constitution making body shall be composed of persons elected by

Provincial Legislatures & nominated by the Indian Princess unless the leaders of Indian origin of the principal communities agreed upon some other form before the end of hostilities

• His majesty’s Government must bear the responsibility for and retain the control and direction of defence of India.

Indians were not satisfied with the above proposals and hence they rejected it.

Cabinet Mission 1946• Came to India on 4th March, 1946,the Mission recommended

the following proposals:1. There should be a Union of India embodying both British

India & the States.2. The paramountacy of Crown was to lapse.3. For the purpose of new Constitution, Constituent Assembly

was to be elected4. An interim Government was to be set up having the support

of major political partiesThe proposals of Cabinet Mission were accepted and in July 1946 elections to Constituent Assembly took place.

The Indian Independence Act, 1947

The provisions of the Act were as follows:a. The act provided for the creation of 2 independent Dominions.

India and Pakistan from 15th August 1947b. Each Dominion was to have a Governor-General who was to be

appointed by the kingc. The Constituent Assemblies of both Dominions were empowered

to frame laws for their respective territories till the new Constitution came into force.

d. After August 15th, the British Government was not to control the Dominions or the Provinces

e. The Act proclaimed lapse of British paramountacy over Indian States.

f. Till the new Constitution were framed, each of the Dominions and the Provinces were to be governed by the Government of India Act, 1935g. The post of Secretary of the state for India was to be abolished and was taken over by Secretary of the Commonwealth of Nations. The Indian Independence Act came into force on 15th August 1947 when the British rule in India came to an end.

1947-1950 framing of the new Constitution

-The Constituent Assembly came into being in November, 1946, elected indirectly by the Provincial Assembly, out of 296 seats for British India, the Congress captured 211 seats & Muslim League 73 seats, the rest were not filled up.-This constituent assembly could not be called a Sovereign body. It was brought about by the British Government and could be abolished by it. - On passing of Independence Act the limitations were removed.

Members of Constituent Assembly

Jawaharlal Nehru,Dr. Rajendra Prasad, Sardar Patel, Maulana Azad, Gopalaswami Ayyangar, Govind Ballabh Pant, Abdul Ghaffar Khan, T.T.Krishnamachari, Alladi Krishnaswami Ayyar, H.N.Kunzru, Sri.H.S.Gour, K.V.Shah, Masani, Acharya Kripakani, Dr. B.R.Ambedkar, Dr. Radha Krishnan, Dr. Jaykar, Liaquat Ali Khan, Khwaia Nazimuddin, Sir. Feroze Khan Noon, Suhrawardy, Sir Zafarullah Khan, Dr. Sachchidnanda Sinha.

Meetings of the Assembly

• First meeting was held on 9th December, 1946 as the Sovereign Constituent Assembly for India.

• On 11 December Dr. Rajendra Prasad was elected its permanent Chairman.

• The Assembly adopted ‘objective resolution’ which later became the Preamble of the Constitution.

• On August 29, 1947, a Drafting Committee of 7 members was set up under the Chairmanship of Dr. B.R.Ambedkar.

Draft Constitution

• Was published in January 1948. • People of India were given 8 months time to discuss

the draft & propose amendments. • 7,635 amendments were proposed and 2,473 were

actually discussed.• The Constituent Assembly held 11 sessions. The Draft

Constitution was considered for 114 days. In all, the Constituent Assembly sat for 2 years, 11 months and 18 days to draft the entire Indian Constitution.

• The new Constitution of India was adopted by the Constituent Assembly on 26th November, 1949 & signed by the President, Dr. Rajendra Prasad.

• Articles 5,7,8,9,60,324,366,372,380,388,391,392, &393 came into force at once. The remaining provisions of the Constitution came into force on 26th January, 1950, which is the date of the commencement of this Constitution.