Indian Constitution : historical underpinnings - Jammu&Kashmir PCS Exam Notes

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Constitution

Constitution is the fundamental law of a country which ordains the fundamental principles on which the government (or the governance) of that country is based. It lays down the framework and principal functions of various organs of the government as well as the modalities of interaction between the government and its citizens. With the exception Of United Kingdom (U.K.), almost all democratic countries possess a written constitution. India also possesses an elaborate written constitution which was enacted by a constituent assembly specifically set up for the purpose. Our Constitution was adopted by the Constituent Assembly on 26 January, 1949. It came into full operation with effect from 26 January, 1950. The Constitution as originally adopted had 22 parts, 395 articles and 8 schedules. Its present text is as amended from time to time.

? Preamble :

“We, the people of India, having solemnly resolved to constitute India into a

Sovereign Socialist Secular Democratic Republic and to secure to all its citizens :

Justice, social, economical and political;

Liberty, of thought, expression, belief, faith and worship;

Equality of status and of opportunity;

And to promote among all

Fraternity assuring the dignity of individual and the unity and integrity of the nation;

In our constituent assembly this twenty-sixth day of November, 1949, do hereby adopt, enact and give ourselves this constitution”

? 42^nd amendment: “Socialist Secular and integrity” was added to preamble.

? Drafting Committee was appointed on 1947, August 29. First draft published on 1949, February. Members : BR Ambedkar(Chairman), N Gopalaswamy Ayyangar, Alladi Krishnaswamy Ayyar, KM Munshi, Sayed M Saadullah, N Madhav Rao(replaced BL Mitra), TT Krishnamachari (replaced DP Khaitan)

Evolution of Indian Constitution

Although the systems of ancient India do have their reflections in the Constitutions of India, the direct sources of the Constitution lie in the administrative and legislative developments of the British period.

Regulating Act of 1773

This Act was based on the report of a committee headed by the British Prime Minister Lord North.
Governance of the East India Company was put under the British Parliamentary control.
The Governor of Bengal was nominated as Governor General for all the three Presidencies of Calcutta Bombay and Madras. Warren Hastings was the first such Governor General.
A Supreme Court was established in Calcutta (now Kolkata)
Governor General was empowered to make laws, regulations and ordinances with the consent of the Supreme Court.

Pitts India Act of 1784

It was enacted to improve upon the provisions of Regulating Act of 1773 to bring about better discipline in the Company’s system of administration.
A 6 member Board of Coordinators was set up which was headed by a minister of the British Government. All political responsibilities were given to this board.
Trade and commerce related issues were under the purview of the Court of the Directors of the company.
Provinces had to follow the instructions of the Central Government and Governor General was empowered to dismiss the failing provincial government.

Charter Act of 1793

Main provisions of the previous Acts were consolidated in this Act.
Provided for the payment of salaries of the members of the Board of Controllers from Indian revenue.
Courts were given the power to interpret rules and regulations

Charter Act of 1813

Trade monopoly of the East India Company came to an end.
Powers of the three Councils of Madras, Bombay and Calcutta were enlarged; they were also subjected to greater control of the British Parliament.
The Christian Missionaries were allowed to spread their religion in India.
Local autonomous bodies were empowered to levy taxes.

Charter Act of 1833

The Governor General and his Council were given vast powers. This Council could legislate for the whole of India subject to the approval of the Board of Controllers.
The Council got full powers regarding revenue, and a single budget for the country was prepared by the Governor General.
The East India Company was reduced to an administrative and political entity and several Lords and Ministers were nominated as ex-officio members of the Board of Controllers.
For the first time the Governor-General’s Government was known as the ‘Government of India’ and his Council as the ‘Indian Council’.

Charter Act of 1853

This was the last of the Charter Acts and it made important changes in the system of Indian legislation.
This Act followed a report of then Governor General Dalhousie for improving the administration of the company.
A separate Governor for Bengal was to be appointed.
Legislative and administrative functions of the Council were separately identified.
Recruitment of the Company’s employees was to be done through competitive exams.
British Parliament was empowered to put Company’s governance of India to an end at any suitable time.

Government of India Act, 1858

British Crown decided to assume sovereignty over India from the East India Company in an apparent consequence of the Revolt of 1857, described as an armed sepoy mutiny by the British historians and remembered as the First War of Independence by the Indians.
The first statute for the governance of India, under the direct rule of the British Government, was the Government of India Act, 1858.
It Provide for absolute (British) imperial control over India without any popular participation in the administration of the country.
The powers of the crown were to be exercised by the Secretary of State for India, assisted by a council of fifteen members, known as the Council of India.
The country was divided into provinces headed by a Governor or Lieutenant-Governor aided by his Executive Council.
The Provincial Governments had to function under the superintendence, direction and control of the Governor- General in all matters.
All authority for the governance of India was vested in the Governor- General in Council who was responsible to the Secretary of State.
The Secretary of State was ultimately responsible to the British Parliament.

Indian Councils Act, 1861

This is an important landmark in the constitutional history of India. By this Act, the powers of the Crown were to be exercised by the Secretary of State for India, assisted by a council of fifteen members (known as the Council of India). The Secretary of State, who was responsible to the British Parliament, governed India through the Governor General, assisted by an Executive council.
This Act enabled the Governor General to associate representatives of the Indian people with the work of legislation by nominating them to his expanded council.
This Act provided that the Governor General’s Executive Council should include certain additional non-official members also while transacting legislative business as a Legislative Council. But this Legislative Council was neither representative nor deliberative in any sense.
It decentralized the legislative powers of the Governor General’s Council and vested them in the Governments of Bombay and Madras.

Indian Councils Act, 1892

The non-official members of the Indian Legislative Council were to be nominated by the Bengal Chamber of Commerce and Provincial Legislatives Council while the non-official members of the Provincial Councils were to be nominated by certain local bodies such as universities, districts boards, municipalities, zamindars etc.
The Councils were to have the power of discussing the Budget and addressing questions to the Executive.

Morley-Minto Reforms and the Indian Councils Act, 1909

Reforms recommended by the then Secretary of States for India (Lord Morley) and the Viceroy (Lord Minto) were implemented by the Indian Councils Act, 1909.
The maximum number of additional members of the Indian Legislative Council (Governor- General’s Council) was raised from 16 (under the Act of 1892) to 60 (excluding the Executive Councilors).
The size of Provincial Legislative Councils was enlarged by including elected non-official members so that the official majority was gone.
An element of election was introduced in the Legislative Council at the centre also but here the official majority was maintained.
The Legislative Councils were empowered to move resolutions on the Budget, and on any matter of public interest except certain specified subjects such as the Armed forces, Foreign Affairs and the Indian States.
It provided, for the first time, for separate representation of the Muslim community and thus sowed the seeds of separatism.

The Government of India Act, 1915

This act was passed to consolidate the provisions of the preceding Government of India Acts.

Montague-Chelmsford Report and the Government of India Act, 1919

The then Secretary of State for India Mr. E.S. Montague and the Governor General Lord Chelmsford formulated proposals for the Government of India Act, 1919.
Responsible Government in the Provinces was to be introduced, without impairing the responsibility of the Governor (through Governor General), for the administration of the province, by resorting to device known as ‘Diarchy’ or dual government.
The subjects of administration were to be divided into two categories Central and Provincial.
Central subjects were those which were exclusively kept under the control of the Central Government.
The provincial subjects were sub-divided into ‘transferred’ and ‘reserved’ subjects.
The ‘transferred subjects’ were to be administered by the Governor with the aid of Ministers responsible to the Legislative Council in which the proportion of elected members was raised to 70 percent.
The ‘ reserved subjects’ were to be administered by the Governor and his Executive Council with no responsibility to the Legislature.
The previous Central control over the provinces in the administrative, legislative and financial matters was relaxed. Sources of revenue were divided into two categories so that the provinces could run the administration with the revenue raised y the provinces themselves.
The provincial budget was separated from the central budget.
The provincial legislature was empowered to present its own budget and levy its own taxes relating to the provincial sources of revenue.
The Central Legislature, retained power to legislate for the whole country on any subject.
The control of the Governor General over provincial legislature was retained by providing that a Provincial Bill, even though assented to by the Governor, would become law only when assented to also by the Governor General.
The Governor was empowered to reserve a Bill for the consideration of the Governor General if it was related to some specified matters.
The Governor General in Council continued to remain responsible to the British Parliament through the Secretary of State for India.
The Indian Legislature was made more representative and, for the first time ‘bi-cameral.’
The Upper House was named the Council of State. This composed of 60 members of whom 34 were elected.
The Lower House was named the Legislative Assembly. This was composed of about 144 members of whom 104 were elected.
The electorates were arranged on a communal and sectional basis, developing the Morley-Minto device further.
The Governor General’s overriding powers in respect of Central legislation were retained as follows:
His prior sanction was required to introduce Bills relating to certain matters;
He had the power to veto or reserve for consideration of the Crown any Bill passed by the Indian Legislature;
He had the converse power of certifying Bill or any grant refused by the Legislature;
He could make Ordinances, in case of emergency.

Simon Commission

This commission, headed by Sir John Simon, constituted in 1927 to inquire into the working of the Act of 1919, placed its report in 1930. The report was examined by the British Parliament and the Government of India Bill was drafted accordingly.

The Government of India Act, 1935

The Act of 1935 prescribed a federation, taking the Provinces and the Indian States (native states) as units.
It was optional for the Indian States to join the Federation, and since they never joined, the Federation never came into being.
The Act divided legislative powers between the Centre and Provinces.
The executive authority of a Province was also exercised by a Governor on the behalf of the Crown and not as a subordinate of the Governor General.
The Governor was required to act with the advice of Ministers responsible to the legislature.
In certain matters, the Governor was required to act ‘in his discretion’ without ministerial advice and under the control and directions of the Governor General, and, through him, of the Secretary of State.
The executive authority of the Centre was vested in the Governor General (on behalf of the Crown).
The councilors of Council of Ministers responsible to the Legislature were not appointed although such provisions existed in the Act of 1935.
The Central Legislature was bi-cameral, comprising a Legislative Assembly and a Legislative Council. In other provinces, the Legislature was uni-cameral.
Apart from the Governor General’s power of veto, a Bill passed by the Central Legislature was also subject to veto by the Crown.
The Governor General could prevent discussion in the Legislature and suspend the proceedings on any Bill if he was satisfied that it would affect the discharge of his special responsibilities.
The Governor General had independent powers of legislatures, concurrently with those of the Legislature.
On some subjects no bill or amendment could be introduced in the Legislature without the Governor General’s previous sanction.
A three-fold division in the Act of 1935 –There was Federal List over which the Federal Legislature had exclusive jurisdiction. There was a Concurrent List also over which both the Federal and the Provincial had competence.
The Governor General was empowered to authorize either the Federal or the Provincial Legislature to enact a law with respect to any matter which was not enumerated in the above noted Legislative Lists.
Dominion Status, which was promised by the Simon Commission in 1929, was not conferred by the Government of India Act, 1935.

Cripps Mission

In March, 1942 Sir Stafford Cripps, a member of the British cabinet came with a draft declaration on the proposals of the British Government.
These proposals were to be adopted at the end of the Second World War, provided Congress and the Muslim League could accept them.
According to the proposals-
The Constitution of India was to be framed by an elected Constituent Assembly by the Indian people.
The Constitution should give India Dominion Status.
There should be one Indian Union comprising all the Provinces and Indian States.
Any Province (or Indian State) not accepting the Constitution would be free to retain its constitutional position existing at that time and with such non-acceding Province British Government could enter into separate Constitutional arrangements.

Cabinet Mission

In March 1946, Lord Attlee sent a Cabinet Mission to India consisting of three Cabinet Ministers, namely Lord Pethick Lawrence, Sir Stafford Cripps and Mr. A.V. Alexander.
The object of Cabinet Mission was to help India achieve its independence as early as possible, and to set up a Constitutional Assembly.
The Cabinet Mission rejected the claim for a separate Constituent Assembly and a Separate for the Muslim.
According to Cabinet Mission Plan there was to be a Union of India, comprising both British India and the States, having jurisdiction over the subjects of Foreign Affairs, Defence and Communication. All residuary powers were to be vested in the Provinces and the States.
The Union was to have an Executive and a Legislature consisting of representatives of the Provinces and the States.
Any decision involving a major communal issue in the legislature was to require a majority support of representatives of each of the two major communities present and voting.
The provinces could form groups with executives and legislatures, and each group could be competent to determine the provincial subjects.

The Mountbatten Plan

The plan for transfer of power to the Indians and partition of the country was laid down in the Mountbatten Plan.
It was given a formal shape by a statement made by the British Government on 3rd June, 1947.

The Indian Independence Act, 1947 of the British Parliament

In pursuance of this Act, the Government of India Act, 1935 was amended by the Adaptation Orders, both in India and Pakistan, for setting up an interim Constituent Assembly to draw up future Constitution of the country.
From the 15th August 1947 India ceased to be a Dependency, and the suzerainty of the British Crown over the Indian States and the treaty relations with Tribal Areas lapsed from that date.
The office of the Secretary of State for India was abolished.
The Governor General and the Governors lost extraordinary powers of legislations to compete with the legislature.
The Central Legislature Of India, composed of the Legislative Assembly and the Council of States, ceased to exist on August 14, 1947.
The Constituent Assembly itself was to function as the Central Legislature with complete sovereignty.

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