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Indian Polity (Part - 2)

SOURCES OF INDIAN CONSTITUTION

Sources of the Constitution

11. Weimar Constitution of Germany Suspension of Fundamental Rights dur­ing Emergency.

CONSTITUTIONAL HISTORY

British rule in India ended on 15th August 1947 and India emerged as an independent and sovereign republic. Certain features of Indian Polity or Constitution can be understood better with a brief review of the constitutional set up in the preceding periods. As modern political institutions originated and developed in India mainly during the British rule, the origin and growth of the Indian Constitution has its roots in the British period of Indian history. The British came to India in the 17th century as traders. From 1773 onwards, various Acts were passed by the British Government for the governance of India.

Main provisions of important Acts passed in British India

The British Government started to regulate the affairs of India by a series of consti­tutional reforms. These constitutional reforms were totally guided towards ensuring irresponsible governance in India. The basic purpose was to control the Indian administration through the Governor-General/Viceroy. In this process, the British Government never tried to dilute the position of the Governor-General. They only inducted indigenous elements to save their face and the concept of the ‘Pax Britannica’.

Regulating Act 1773

(i) First attempt by the British Parliament to regulate the affairs of the East India Company;
(ii) Centralised the administration of Company’s territories in India;
(iii) Governor of Bengal was designated as the Governor General of Bengal and Council of 4 members was appointed for Bengal; (1) Barwell, (2) Clavering, (3) Philip Francis (wanted to replace Hastings) and (4) Monson (later replaced by Wheeler).
(iv) Bombay and Madras Presidencies were subordinated to Bengal Presidency;
(v) Company’s servants were forbidden from accepting bribes or doing private trade.
(vii) A Supreme Court was set up at Calcutta; the Chief Justice, alongwith 3 Judges, was appointed by the Crown.The Supreme Court was constituted in 1774. Sir Elijah Impey was Chief Justice. Chambers, Lemaister and Hyde as the Puisne Judges.

Powers of Supreme Court

(a) All the public servants of the Company were made amenable to its juris­diction;
(b) It could also entertain suit, actions and complaints against persons in the Company’s service;
(c) The Court was given both original and appellate jurisdiction.

Charter Act, 1813

i. The monopoly of trade of the East India Company was abolished except in Tea and its trade with China.
ii. The Church establishment was placed under a Bishop maintained from Indian revenue.
iii. Provision was made for granting permission to English men to settle and hold land in India; to the missionaries for introducing useful knowledge and propagating religious and moral improvement and to traders for their lawful purposes, under a system of licences.
iv. Proclaimed sovereignty of crown over possessions (territorial and rev­enue).
v. One lakh grant for the improvement of education.

Charter Act, 1833

(i) Governor-General of Bengal became the Governor General of India;
(ii) Company was asked to close its business at the earliest;
(iii) It put an end on Company’s trade monopoly even in tea and opium with China;
(iv) Government of Madras and Bombay was deprived of legislative powers;
(v) A fourth member (Law Member) was added to the Council of Governor-General; Macaulay was the first incumbent.
(vi) Government Service was thrown open to the people of India;
(viii) All laws made by Governor General-in-Council, henceforth came to be known as Acts and not regulations;
(viii) Provision was made for appointment of Law Commission for codification of laws; and
(ix) Slavery was abolished.
(x) Law Commission under Macaulay was constituted;

Charter Act of 1853

i. Laid foundation of Parliamentary system of Government, the executive and legislative separated, Legislative Assembly functioned in the model of British Parliament;
ii. Renewed the term of East India Company for an indefinite period;
iii. Reduced the number of Board of Directors from 24 to 18 and 6 out of them were nominated;
iv. The 4th member became at par with other members as right to vote was conferred; and further added, 6 members known as ‘Legislative Council­lors’; Six Members were the Chief Justice and a puisne judge of Calcutta Supreme Court, and four representatives, one each from Bengal, Madras, Bombay and NWFP. Therefore, the total number of members became 10.
v. Now it became: Governor-General + 6 members (Legislative Councillors) + 4 members (Governor-General-in-Council) + Commander-in-Chief (C-in-C);
vi. Indian Civil Service became an open competition. Macaulay made Chair­man of the Committee.
vii. The Act for the first time introduced local representation in the Indian (Central) Legislative Council. The Governor-General’s Council had six new legislative members were appointed by the local (provincial) governments of Madras, Bombay, Bengal and Agra.
viii. The Act separated, for the first time, the legislative and executive functions of the Governor-General’s Council.

Government of India Act 1858

The first war of Indian Independence in 1857 brought the career of East India Company to an end. In 1858, the Government of India was placed directly under the crown through the Secretary of State for India and all the matters were to be seen by him. This Act had three parts:

(i) The East India Company’s control came to an end as:

(a) The Board of Directors was abolished.
(b) The basis of Court of Proprietors came to an end.

(ii) Secretary of State:

(a) He will be a member of British Cabinet.
(b) He will be drawing salaries and emoluments from Indian revenue.
(c) He will be responsible directly to British parliament.
(d) He will have his own Council consisting of 15 members - 8 nominated by the Crown and 7 would be elected by the outgoing Board of Directors.
(e) All decisions were taken by majority vote by the Secretary of State’s council but Secretary of State for India was given the power to override the decision of the Council as he felt necessary.
(f) The Secretary of State was required to lay before the parliament an ac­count for the Financial year containing the statement of the revenues and expenditure of India and also a statement showing the moral and material progress made by the Indians.

(iii) Governor-General of India

(a) He was placed under the Secretary of State as the consent of Secretary of State was important/necessary for implementation.
(b) The internal position of Governor-General remained unchanged. His power of veto remained undiluted.

Indian Council Act 1909 (Morley-Minto Reforms)

(i) Introduced, for the first time, an element of elections to the Legislative Councils;
(ii) In Provincial Legislative Councils, non-official members were to be in majority; and
(iii) This Act introduced the system of separate electorates (for Muslims).

‘DIARCHY’ AND ‘DEVOLUTION RULES’

In Indian administration, these terms were used for the first time in the Government of India Act, 1919 (Montague­Chelmsford Reforms)

Diarchy: It meant Dual Government. The Provincial subjects of administration were to be divided into two categories - “Transferred” and “Reserved”. The transferred subjects were to be administrated by the Governor with the aid of Ministers responsible to the Legislative Council. The reserved subjects were to be administered by the Governor and his Executive Council without any responsibility towards the Legislature.

Devolution Rules: Through these Rules, subjects of administration were divided into two categories - “Central’ and “Provincial”. Subjects of all-India importance (like Railways, Finance) were brought under the category of Central, while matters relating to the administration of the provinces were classified as provincial.

• Councils were enlarged and direct elections were introduced. An Indian ; was to be appointed member of Governor General’s executive council. There­fore the total number of members of Governor-General in-Council increased to 9 (7 executive members and 1 extraordinary member and Governor-Gen­eral).

• 60 additional members were increased for legislative purposes. They consisted of: 28 officials and 9 ex-officio members, and therefore total official membership was 37. Out of it 28 were nominated by Governor-General.

• 32 non-officials consisting of: 5 nominated by Governor General, 27 elected which consisted of: (i) 2 by special electorates, (ii) 13 by general electorates, (iii) 12 by class electorates consisting of: (a) 6 elected by land holders and (b) 6 elected by Muslim constituencies.

• Satyendra Prasad Sinha became the first Indian to join the Viceroy’s Executive Council’. (iii) The separate electorate was introduced. Lord Minto has been known as ‘Father of Communal Electorate’.

Government of India Act 1919 Montagu-Chelmsford Reforms

• The salary of Secretary of State was transferred from Indian to British Exchequer.
• Some of the functions of Secretary of State were taken away and given to the High Commissioner of India who was to be appointed and paid by the Govern­ment of India.
• The number of the Indians in the Governor-General’s Executive Council was raised to three in a Council of 8. The Indian members were entrusted with departments like that of law, education, labour, health and industries.

• The new scheme of Government envisaged a division of subjects into the Central List and the Provincial List.

• Instead of single-bicameral house was created: the Council of State and the Legislative Assembly,

Dyarchy was introduced in Provinces

• Subject of Administration was divided into two lists: (i) Transferred and (ii) Reserved

(i) The Transferred list was administered by the Governor acting with ministers appointed by him from among the elected members of the legisla­ture and who were to be responsible to the legislature and were to hold office during his pleasure. The Transferred Lists are (1) Education, (2) Libraries, (3) Museums, (4) Local Self-Government, (5) Medical Relief, (6) Public Health and Sanitation, (7) Agriculture, (8) Coop­erative Societies, (9) Public Works, (10) Veterinary, (11) Fisheries, (12) Excise, (13) Industries, (14) Weights and Measure, (15) Public Entertainment, (16) Religion and Charitable Endowments, etc.

(ii) The reserved subjects were administered by the Governor with the help of the members of the Executive Council who were nominated by him and who were not responsible to the legislature. The Reserved Items are: (1) Land Revenue, (2) Famine Relief, (3) Justice, (4) Police, (5) Pensions, (6) Criminal Tribes, (7) Printing Presses, (8) Irrigation and Waterways, (9) Mines, (10) Factories, (11) Electricity, (12) Labour Welfare and Industrial Disputes, (13) Motor Vehicles, (14) Minor Ports, etc.

Changes on the Legislative Side

• Now the Provincial Legislatures was to be called Legislative Councils.
• Of the total number of a members of a Provincial Council, at least 70 per cent were to be elected, while not more than 20 per cent were to be officials; the remaining 10 per cent were to be nominated non-officials.

Powers of Governor-General

• The prior sanction was required to introduce Bills relating to certain mat­ters;
• He had the power to veto or reserve for the consideration of crown any Bill passed by the Indian legislature;
• He had the power of certifying any Bill or any grant refused to be passed or made by the legislature;
• He could make ordinances;
• He had the power to amend, refuse, accent but Governor General in Council could restore it by simply declaring that it was essential to discharge of his responsibilities;
• So far as transferred subjects in the provinces were concerned, the power of superintendence, direction and over local Governments, vested in the Governor General in Council could be exercised only by specific purposes mentioned in the rules.

Government of India Act 1935

Provincial Autonomy

This Act had three important features:

(1) An All-India Federation;
(2) Responsible Government with safeguards;
(3) Separate representation of communal and other groups; and 1
(4) It had 321 sections with 10 Schedules.

• Aimed at federal structure, the Governor General was to have a Council of Ministers, not exceeding 10 in number, “ to aid” and “advise him” in the exercise of his functions in his discretion or in his individual judgement.
• Dyarchy was rejected by the Simon Commission, was provided for in the Federal Executive.
• The administration of Defence, External Affairs, Ecclesiastical affairs and Tribal areas, was to be made by Governor General in his discretion with the assistance of maximum three councillors appointed by him, who were not responsible to the legislature;
• With regard to matters other than the ‘reserved subjects’, the Governor General was to act on the advice of a Council of Ministers, who was respon­sible to legislature;
• As regards the special responsibilities and Governor General was to act under the control and directions of the SOS.

Federal Structure

(1) The Council of State was to be a permanent body with one-third of its membership being vacated and renewed triennially.
(2) The Federal Assembly whose duration was fixed for five years.

Features of Federal Legislature:

(a) Ironically, in the Upper House the election was to be direct while in the Lower and theoretically more popular house was indirect.
(b) The princes were to nominate 1 / 3rd of the representatives in the Lower House and 2/5ths in the Upper House.
(c) There was a provision of Dyarchy at the Centre. As regards the subject matter of Federal and Provincial laws, there were three lists:

i. Federal Legislative Lists; consisted of 59 items like External Affairs, De­fence, Currency and Coinage, Naval, Census, Ecclesiastic Affairs, etc.
ii. Provincial Legislative Lists; consisted of 54 items of local interest like, Education, Public Services, Police, etc., and
iii. Concurrent Legislative Lists; consisted of 26 subjects like Criminal Law, Criminal Procedure, Civil Procedure, Marriage and Divorce, Arbitration, etc.

(d) Residuary Legislative powers were vested in the Governor-General to decide in his sole discretion as to under which list a particular subject fell.
Federal Lists: Federal Subjects were divided into two categories: (a) the reserved and (b) transferred

(a) the reserved subjects like defence, external affairs, ecclesiastic affairs, and tribal areas, was to be made by the Governor-General in his discretion with the help of the Councillors appointed by him who were not responsible to the legislature.

(b) the transferred subjects were to be administered by the Governor-Gen­eral who was to act on the advice of the Council of Ministers who were responsible to the Legislature.

Federal Court

The Act established a Federal Court with a Chief Justice and not more than six judges. The retiring age of these judges was sixty-five years. The Judges were appointed by the Crown.

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