This
article will be discussing deeply about the Constitutional History of India. And
this article composed of two parts i.e., Part I & Part II. Part I contains concept
of Constitution and constitutional law, and three Phases of Constitutional
history i.e., Coming of the British, Beginning of British Rule and the ending
of Company’s Rule.
CONSTITUTIONAL
HISTORY OF INDIA: PART - I
CONSTITUTION:
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:
It
means the rule which regulates structure of the principal organs of the
Government and their relationship to one another and determines their
principal functions.
CONSTITUTIONAL
HISTORY OF INDIA
The
Constitution of the Indian Republic is the product not of a political
revolution but of the research and deliberation of a body of eminent
representatives of the people who sought to improve upon the exiting systems of
administration, makes a retrospect of constitutional development indispensable
for a proper understanding of this Constitution.
In
order to study the Constitutional history of India it is not necessary to go to
any period beyond the British Period because modern political institutions
originated and developed in that period only.
The
various phases of the growth of our Constitution from the advent of the English
on Indian shore till this day. We can broadly divide the period as following
five phases: -
A. 1600AD
– 1765AD (The coming of the British)
B. 1765AD
– 1858AD (Beginning of the British Rule)
C. 1858AD
– 1919AD (End of Company’s Rule)
D. 1919AD
– 1947AD (Introduction of Self-Government)
E. 1947AD
– 1950AD (Framing of the Constitution)
Let
us study the same,
A. THE COMING OF THE BRITISH (1600 – 1765):
In
1600, the Britishers came to India as traders in the form of East India
Company. Attracted by the fabulous wealth of India and fortified by the
adventurous maritime activity they were eager to establish commercial contract
with the East. The Company secured for it a Charter from Queen Elizabeth in
December 1600, which settled its constitutions, powers, and privileges. The
Charter vested the management of the Company in the hands of a Governor and 24
members who were authorized to organise and send trading expeditions to the
East India. The Charter also granted monopoly trade of the Company with East.
The Charter was granted in the first instance for 15 years. And could be renewed
if it did not prejudicially affect the interest of Crown and the people.
Fortified
with the Charter, the Company has started to establish its trade Centre and
factories in the several places. The first settlement of the Company was in
Surat on 1612 where the emperor Jehangir granted it land and other concessions.
This was followed by Musulipattam – Madras on 1639 and thereafter at Hariharpur
in Mahandi Delta on 1690. Gradually the
factories at Bombay, Madras and Calcutta became the chief settlement or
presidencies of the Company and the administration of those presidencies were
carried on by the President and Council composed of the servants of the
Company.
The
Company made static their position in the several places in India with the
consent of Indian Rulers and anyhow they secured the permission of the local
Kings to retain their own laws.
Legislative
power: The Charter of 1601 granted the Governor and the
Company to make, ordain, and constitute such and so many reasonable laws,
constitutions, orders and ordinances required for the better governance of
Company. Bur the such power was very limited and narrow in scope and character.
Any law made, as per the granted power, not to be contrary to the laws,
statutes and customs of the England. The legislative power thus granted to the
company to enable the Company to regulate its business and to maintain
discipline among its servants. And the purpose of granting limited legislative
power is to prohibiting any fundamental changes in the principles of English
law.
Though
limited in scope the legislative power of the Company made a significant affect
out of which the Anglo-Indian Codes were ultimately developed.
By
the Charter of 1609 and 1661 similar power were affirmed. The Charter of 1693
makes no mention of legislative powers.
The
Charter of 1726:
The
Charter of 1726 had a great legislative significance. Up to now, the
legislative power was vested in the Court of Directors in England, but they were
not conversant with the conditions prevailing in India. Thus, it was considered
to vest the law-making power in the hands of those who acquainted with the
conditions of India. Accordingly, the Charter authorised the Governor and
Council of the three Presidencies to make laws or required regulations for the
good governance of the Company and to impose punishment for their
contravention. But such laws and regulations and punishment were not to be
reasonable and not contrary to the laws and statues of England and were needed
to be approved and confirmed in writing by the Company’s Court of Director.
The
Charter also established the Mayor’s Court at Calcutta, Bombay and Madras and
expressly introduced English laws into three Presidencies.
Till
the half of the 18th Century the Britishers had not become a ruling
power in India. It was the period of gradual disintegration of Moghul Empire.
Its last strong Emperor Aurangzeb was dead and India became a battleground of
rival contesting principalities. The East India Company took the full
advantages of the chaotic situation and gradually established itself as the
unrivalled master of the Indian sub-continent. The victory of Company in the
Battle of Plassey in 1757 against Sirajuddualla, Nawab of Bengal, had laid the
foundation of the British Empire in India.
In
1765 Shah Alam granted the Diwani, i.e., the responsibility of the collection
of revenue to the Company which automatically involved the administration of
civil justice. The Company henceforth threw off the mask of traders and
appeared in the grab of true rulers.
B.
BEGINNING OF THE BRITISH RULE (1765 – 1858):
Regulating
Act of 1773 –
The
grant of Diwani made the East India Company real master of Bengal, Bihar and
Orissa and the Company became responsible for the administration of civil
justice and collection of land revenue. But it was difficult for the Company to
administer the vast territory, it did not, therefore, take over these functions
immediately. The responsibility was, therefore, left to Indians. The Company,
however, appoint two English officers to supervise the working of that system
but the system proved to be harmful for the country. The Indian officials who
were responsible for the administration had no effective power to enforce their
decision, a part from that, the Company’s servants who were real rulers had no
responsibility and they exploited the situation for their selfish ends and they
were responsible to the Court of Director in England.
The
Governor and Councilors were appointed from the senior servants of the Company,
and they had many businesses to perm. Under the Governor and Council there was
body of Civil and Military servants. The salary of those servants of the
Company was very less. In that situation, the low-paid servants used their
official position freely to get rich quickly and extracted, presents, bribes
and levies from the poor people. In the result of that tyranny the whole
district which were populous, and flourishing became depopulated.
That
was the administration of Company after the Battle of Plassey. The servant of
the Company exploited Indians, amassed wealth and returned to England. And the
result was great famine in Bengal and the Company was heading towards
bankruptcy. That led the British public to suspect that there is something
palpably wrong in the administration of the Company. Hence, the House of
Commons appointed a Secrete Committee in 1772 to do inquiry into the administration
of the Company. The Committee in its inquiry report exposed several defect and
deficiencies in the administration of the Company and suggested that the
affairs of the Company must be regulated by the Parliament. Consequently, the
Parliament passed the Regulation Act of 1773.
This
was the First Act of the British Parliament which established a definite system
of Government of India. It did the following things: -
a)
Changes the constitution of company in
England.
b)
Recognized the Government of Calcutta.
c)
Brought the Precedencies of Bombay and
Madras to some extent under the control of Governor-General of Bengal.
d)
Established a Supreme Court at Calcutta.
a)
Home Government:
Earlier
to the Regulating Act, the affairs of the Company were managed by the Court of
Directors containing 24 members elected annually by the Court of Proprietor.
The tenure of the appointed director was only one year. The Regulating Act
increased the term of office of Director for 4 (four) years, 1/4th
of them retire every year and also restrict the voting right to those
shareholders who held more share worth.
The
directors were required to submit all the correspondence from the
Governor-General of India relating to revenue to the Treasury ad those relating
to the Civil and Military Government to one of Secretary of State. Thus, the
Act strengthened the control of the British Government over the Company.
b)
Form of Government in India:
Before
passing of Regulating Act, the three Presidency were separate and independent
in their own and had a direct dealing the with Court of Directors. But passing
with Act it appointed a Governor-General and four Councilor for the Presidency
of Fort William in Bengal and endowed with full Civil and Military Government
of the Calcutta Presidency. And itself
named first Governor-General and his four Councilors. Warren Hastings was
to be the first Governor-General. Tenure of office for Councilors were 5
years and could not remove earlier except by the King on the recommendation of
the Court of Directors. The Council was needed to take decision by majority.
The Council was also vested with power of superintendence and control of
Government of Bombay and Madras Presidencies in the matter of peace and war but
in case of emergency they were needed to take order from Directors in London.
The
Governor-General-in-Council of Bengal had power to suspend any offending
Governor and his Council. The Governor-General of Bengal and his Council, thus,
became the supreme authority of India. The Act of 1773 thus, took the first
step in the centralization of administrative machinery in India.
c)
Legislative power:
The
Act empowered the Governor-General and Council to make rules and regulations
for the good governance of the Company’s settlement at fort William and
subordinate factories thereto. However, such power was subjected to some
restrictions (similar to above discussed restrictions), such as, i) the laws
made not to be repugnant to the laws of England; ii) they were to be
reasonable; iii) they were to valid until ‘duly registered and published in the
Supreme Court’. Thus, the legislative power was controlled by the Supreme Court
and could be set aside by the King-in-Council.
d)
Establishment of Supreme Court:
The
Act provided for the establishment of a Supreme Court at Calcutta consisting of
a Chief Justice and three other judges who were to be barrister of at least 5
years standing and were to be appointed by the King and hold office during his
pleasure. The Court was vested with civil, criminal, admiralty and
ecclesiastical jurisdictions. The Governor-General and Councilors and Judges
of the Supreme Court were exempted form arrest or imprisonment in any action or
suit or proceedings in the Court. Appeal from the Supreme Court lay to
King-in-Council in England and the Court was to try cases by jury.
The
object of the Regulating Act of 1773, was good but the system that it
established was not proper. It suffered from any defects, viz, i) it did not
define clearly the relationship of the Governor-General and his Council with
the Supreme Court. ii) it did not clear as to what law the Supreme Court was to
administer. iii) it placed the Governor-General at the mercy of his Council.
The
Act of Settlement, 1781: -
To
remove the defects of Regulating Act of 1773, Parliament passed the Act of
Settlement 1781. The Act of Settlement 1781 made the following changes in the
Regulating Act, such as,
-
1. It
exempts the actions of the public servants of the Company done in official
capacity from the Jurisdiction of the Supreme Court.
-
2. It
tried t settle the question of jurisdiction of Court over servants of the
Company and the native inhabitants.
-
3. It
made it clear as to what law to be applied by the Supreme Court.
-
4. The
Act recognized and confirmed the appellate jurisdiction of the
Governor-General-in-Council in cases decided by the Mufassil Courts.
-
5. It
empowered the Governor-General-in-Council to frame regulations for the
Provincial Courts and Councils also.
The
Pitts India Act, 1784: -
The
Act of Settlement 1781 could not cure the defects of the Regulating Act of 1773
and agitation for an effective control over the Company’s affairs.
Consequently, parliament appointed two committee but the Court of Proprietors
refused to complied with the recommendation of the committee. That expressed
the inadequate control of the Parliament over the Company and its
administration. In order to set right the situation Pitts India Act, 1784 was
passed by the Parliament.
The
Act made a distinction between the Company's commercial and political functions.
The Court of Director were allowed to manage commercial affairs of the
Company, but for the control of Political affairs Board of Six Commissioners,
Known as Board of Control, was appointed. The Commissioner was appointed
by the King and hold office upon his pleasure. Court of Directors was still
strong, they had retained their vast patronage and had right to appoint and
dismiss their servants in India. The functions of the Board of Control were
merely to revise and control over the doing of Directors.
The
Charter Act of 1793 renewed the Company’s monopoly of trade for a further
period of 20 years.
The
Charter Act of 1813: -
The
Act further renewed the Charter for a period of 20 years, it took away
the exclusive right of the Company to trade in India. The Charter of 1813
endowed the British Crown a greater control over the power of the Councils and
the regulations made by three Councils in India were required to be laid before
the Parliament. The monopoly of the East India Company was taken away and
Indian trade thrown open to all British subjects.
The
Charter Act of 1833: -
The
Charter of 1833 brought an important change in the constitution of legislature
in India. The Governor-General of Bengal was designated as Governor-General
of India. The legislative power was vested in the hands of
Governor-General-in-Council, by such step the Act led to the centralization of
power. Governor-General-in-Council was empowered to make laws and regulations
in all, subjected to certain specific matters, with the territory of Company.
The
laws made under the previous Acts were called Regulations, but laws made under
the Act of 1833 called Act of Parliament.
The
Charter Act of 1853: -
The
Charter of 1853 took a crucial step in separating Legislative machinery from
the Executive. This was the last Charter Acts made between 1793 and 1853.
For the first time in Indian Legislature local representation was introduced
and treated as a special function of the Government requiring special machinery
and process. No law made by the Council could be promulgate prior to assent of
the Governor-General and Governor-General had the power to veto over any Bill
of the Legislative Council. Further, the Act appointed a new Governor-General
for Bengal. It was severe blow to the Court of Directors where they had
deprived from their privileged power of appointment. It opened the door for the
Crown to receive Indian territories.
The
Mutiny of 1857 only accelerated this process and brought the role of
East India Company to an end.
C. END OF COMPANY’S RULE (1858 – 1919):
The
Government of India Act, 1858: -
The
introduction of double government by the Pitts India Act, 1784 failed. Board of
Control failed to have a control over the affairs of the Company. In such when
the situations gone detrimental to the Company, the Mutiny of 1857, the
first war of Independence gave a death blow to the rule of Company. In such
a situation, for the better government, British Parliament passed the
Government of India Act, 1858.
The
Government of India transferred from the Company to British Crown by
that Act of 1858. India was started to govern by and in name of Her Majesty. Board
of Control and Court of Director was abolished, and their power had been vested
to Her Majesty’s Secretary of State. The power of Crown was to exercise by the
Secretary of State assisted by a Council of 15 member, known as Council of
India. The Council was an advisory body.
The
transfer of Company’s Government to the British Crown was announced by a ‘Royal
Proclamation’ made by the Queen of England and that proclamation had a great
importance in constitutional history.
The
Government of India Act, 1858 had closed a great history and started a new
great era – the direct rule of the Crown.
Indian
Council Act of 1861: -
The
Indian Council Act of 1861 was of basic Constitutional importance. That brought
about the initiative of representative institution. It provided India with the
framework of the Government which pasted till the present time. With the hand
if this Act, Indians were for the first time associated with the work of
legislation.
Legislative
power:
The
Act had enlarged the Council of Governor-General i.e., Legislative Council and
Provincial Legislative Council, for the purpose of making laws and regulations.
The Legislative Council was given the power to frame laws and regulations for
all person. Court of Justice, places and things and public servants, inside and
outside of the British India. The Act also restored legislative powers of the Presidency
Government of Bombay and Madras. The Provincial Legislative Council were
empowered to make laws for the benefit of Province. Every bill passed by the
Legislative Council, was needed to get assent of the Governor-General to become
an Act. Along with this, the Governor-General had the power to veto any Bill
and also empowered to issue ordinance and also had power to alter the limits of
the Provinces, Precedencies and territories.
The
Provincial legislature were not empowered to make any laws that might alter the
Acts of Central Legislature.
The
Indian Council Act of 1861, however, suffered from many defects. It gave
unlimited power to the Governor-General.
The
period from 1861 to 1892 was the rise of Indian National Congress. Indian
National Congress was founded in 1885 and in its first session passed
expressing great dissatisfaction at the existing system of Government and
demanded reform. The Viceroy Lord Dufferin felt that the time had come to
accept the demand of the National Congress for reform seriously. Therefore,
appoint a committee and drew up plans for the enlargement of the Council and
association of Indians with the work of Government. Depending on this principle
a Bill was introduced in the British Parliament and became the Indian Council
Act of 1892.
Indian
Council Act, 1892:
That
Act achieved three things: i. it increased the number of members in the Central
and Provincial Council. ii. Introduce the election system partially, and iii.
Enlarged the functions of the Council.
Though
the Act laid down the foundation of the representative Government, but it also
suffered from many defects.
Indian
Council Act of 1909-Morley Minto Reforms. -
The
first attempt to introduce a representative and popular element was made by
Morley-Minto Reforms, known by names of the Secretary of State (Lord Morley)
and the Viceroy (Lord Minto) which were implemented by the Indian Councils Act,
1909. By this Act, the size of Legislative Councils, Central as well as
provincial, was considerably increased and also the power of the Legislative
Councils, both Central and Provincial, was enlarged.
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