Wednesday, 16 October, 2019

INDIAN CONSTITUTION- HISTORICAL UNDERPINNINGS, EVOLUTION, FEATURES, AMENDMENTS, SIGNIFICANT PROVISIONS AND BASIC STRUCTURE

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INDIAN CONSTITUTION- HISTORICAL UNDERPINNINGS, EVOLUTION, FEATURES, AMENDMENTS, SIGNIFICANT PROVISIONS AND BASIC STRUCTURE

PART 1

INTRODUCITON

Constitution

 

The constitution of a country lays down the basic structure of the political system under which the citizens are governed. It may also be defined as the foundational law of the country which ordains the fundamentals of its polity and on the alter of which all other laws and executive acts of the state are to be tested with regards to their validity and legitimacy. It leads to the establishment of the main organs of the state such as the legislature, the executive and the judiciary, defines their power, their responsibility and regulates their relationships with each other and with the people.

In a democracy, sovereignty is vested in the people and ideally they govern themselves. But, with the continuously growing complexities of administration and the size of the nation-states, direct democracy is no more feasible. In the present representative democracies, people exercise their right to decide how and by whom they want to be governed. The primary and the most important fundamental application of their sovereignty by the people is providing themselves a constitution which outlines the ground rules under which certain power are transferred to various organs of the state and are to be exercised by them. Every constitution represents the vision and values of its founding fathers and is based aspirations of the people.

Functions of the constitution         

In the border sense, the function of a constitution includes the following:-

  • To provide a basis structure of rules that in turn allow for minimal co-ordination amongst the members of a society.
  • To specify that who will have the decision making powers in a society and to decide the procedure by which the government would be constituted.
  • To specify the limits on what a government can impose on the citizen. These limits are fundamental in the sense that the government may never trespass them.
  • To enable the government to fulfill the aspirations of the society and create favorable conditions for a just society.

INDIAN CONSTITIUON: HISTORICAL UNDER PINNINGS, EVOLUTION

The British came to India in 1600 as traders in the form of East India Company, which had the exclusive right of trading in India under a charter granted by Queen Elizabeth I. In 1765, Clive the them Governor of Bengal secured from Shah Alam II, the powerless and effete Mughal emperor the Diwani (rights over revenue and civil justice) of Bengal, Bihar and Orissa, stipulating in return to pay the emperor an annual subsidy of 26 lakhs of rupees. Also, the Nawab of Bengal became a mere pensioner; the company was to pay him a fixed annual sum of Rs. 53 lakhs for the support of the Nizamat. Clive thus established a Double Government with the Company as Diwan, and the Nawab as Nazim.

The acquisition of the Diwani of Bengal and the introduction of the Double Government system by Clive in 1765 provide the Key to the development of the British Indian Constitution which has been explained further in the subsequent paragraphs.

In England, the aspect of this dual governance which attracted chief attention was the immense wealth which the company was expected to derive from the revenues of Bengal, estimated at £4, 000,000 per annum. Some, Including Pitt, held even that the crown should now take over the governmental authority which the company has now assumed, but this view was held by few and the first intervention of parliament in the company affairs came in 1767 in the form of a demand for a share of the plunder to the extent of £400, 000 per annum. 

 However, under the dual system, The Nawab was limited to the position of a figurehead and the administration was in the hands of the Deputy Nawab, whose was the nominee of the company and an English resident posted at the Durbar and the used to decide every matter of significance in the arrangement (Dual Govt.) a fatal divorce of power from responsibility was inherent which lead to most of the scandals and abuses speedily to their appearances. In the first place, the abuses of private trade reached its peak because the Indian administrators in this arrangement were open to illegitimate pressure, and unable to restrict the misconduct of the company’s servants. And secondly, the ongoing demands of the company for increasing the revenue eventually resulted in gross oppression of the peasantry. The collection of the revenue from land that though theoretically removable had in most cases became hereditary. They often paid very little especially when the government was weak.

When the company was in debt of about £ 6 millions, a dividend of 12.5% was declared, though the Directors had to conceal facts and falsify accounts. And when the News of the famine and Haider Ali’s successful onslaught into the carnatic war reached England, the company’s stock showed a spectacular decline and before long rumours got abroad of the company’s true financial position. In sheer desperation, the Directors of the company applied to the Bank of England for a loan of £ 1,000,000 and while doing so they signed the death warrant of the company’s independence. As this resulted in the appointment of a select committee to enquire into the company’s affairs which was presided over by general Burgoyne who while proposing a resolution for the appointment of the committee declared: “The most atrocious abuses that even stained the name of civil government called for redress… if by some means sovereignty and law are not separated from trade, India and great Britain will be suck & overwhelmed never to rise again”.

They declared another dividend of 120.5% and in August they asked the Government for a loan of £ 1 million the Discrepancy was so glaring that it caused the House of Commons to appoint a second (secret) committee to investigate the reasons for it. It became a very debatable and interesting question that why should a company go bankrupt, when its servants were returning with their pockets bulging with gold.

Consequently in the spring of the following year the committee issued their reports. As expected these were highly condemnatory in nature. Subsequently two Acts of Parliament were passed. The first granted the company a loan of £ 1, 400, 00 at 4% interest on certain terms and conditions. While the second was the Regulation Act of 1773. This act is of great constitutional significance as it was the first move by the British Government towards the centralization of administration n India and to control and regulated the affairs of the East India Company.




 

(1773-1858) THE COMPANY RULE (REGULATING ACT OF 1773) FEATURES OF THE ACT:

The Act remodeled the constitution of the company both in England and in India. in England, the right to vote in the court of Proprietors was raised from Rs. 500 to Rs. 1000. Also, it was provided that the Court of Directors, hitherto elected every year, was henceforth to be elected for four years.

The number of Directors was fixed at 24, out of which 1/4th retiring every year. Also, they were required to lay before the treasury all correspondence from India dealing with the revenues and before the secretary of State everything dealing with civil and military admonition. Thus for the first time the British Cabinet was given the right of controlling the India affairs.

The Act designated the Governor of Bengal as the ‘Governor General’ of Bengal and created an executive council of four members to assist him. The first such Governor General was lord warren Hastings and the councilors war Philip Francis, claverin, monsoon and Barwell. They were to hold office for a period of five and could be removed earlier only by the king on the recommendation of the court of Directors further, the Governor General in council were wasted with the civil and military government of the Presidency of Fort William in Bengal.

  • The Act for the establishment of a Supreme Court at Calcutta in 1774 with Sir Elijah Impey as Chief Justice and Chambers, Lemaister and Hyde as the pusine judges.
  • It made the Governors of Bombay and Madras presidencies subordinate to the Governor of Bengal.
  • The Act also prohibited the servants of the company from engaging in any private trade or accepting gifts or bribe from the natives. Thus, laying down the foundational principle of honest administration.

Assessment/critical analysis of the Act of 1773:

The Regulating Act of 1773, tried to sail in an unchartered sea. As it left the details of administration in India to the devices of the company. However, it tried to organize an honest and efficient supreme authority in Bengal, Madras & Bombay and to provide against the abuse of their powers by the servants of the company. It was a failure and only added to Hastings difficulties instead of strengthening him. The Act was in operation for 11 years till it was superceded by the Pitt’s India Act of 1984.

Pitt’s India Act of 1784

Features of the Act

  • The Act constituted a department of state in England Known as the “Board of Control”. Whose special function was to control the political affairs of the Court of Directors. However, the Act allowed the Court of Directors to manage the commercial affairs. Thus introducing the Dual System of governance by the company and by a parliamentary Board which lasted till 1858.
  • The Act empowered the Board of Control to have access to all the company’s papers and its approval was mandatory with regards to all the dispatches that were not purely commercial, also, in case of emergency the Board could send its own draft to the secret committee. Thus, the Act placed the civil and military government of the company in the subordination in England.
  • The Act reduced the number of members of the Executive council to three, of whom the commander in chief was to be out. It also modified the councils of madras and Bombay on the pattern of that of Bengal.

The act was significant mainly for two reasons. first the company’s territories in India were for the first time called the British possessions in India, and second the British Government was given the supreme control over the company’s affairs and its administration in India.

The Charter Act of 1833

  • This Act is considered the final Step towards the centralization in British India. The company was asked to close its all commercial activities.
  • The Governor General in Council was given the power to control, superintend and direct the civil and military affairs of the company. Lord Willam Bentick became the first Governor General of India.
  • Bombay, Madras, Bengal and other territories were placed under the complete control of the Govener-General-in- Council.
  • Now, all revenues were to be raised under the authority of the Governoer-General-in Council who was to have complete control over the expenditure also.
  • The act also brought about legislative centraisation. Now the Governments of Madras and Bombay were drastically deprived of their powers of legislation and left only with the right of proposing to the Governor-General-in-council projects of the laws which they thought expedient.
  • Also, the act enlarged the executive council of the Governor General by the addition of Law Member for legislative purposes. He was entitled to sit and vote at the meetings of the council only for the purpose of law making. Also a law commission was constituted with the purpose of consolidating, codifying and improving India laws. Lord Macaulay was the first Law Member of the council.
  • Also, the Act attempted to introduce a system of open competition for selection of civil servants and stated that the Indians should not be debarred from holding any place, office and employment under the company. However, this provision was neglected after strong opposition from the court of Directors.
  • It also enjoined the Government of India to take measures of amelioration of the condition of slaves and abolition of slavery in India.



Assessment of the Charter Act of 1833

The act of 1833 undoubtedly brought about significant and far reaching changes in the constitution of India. The company having lost its commercial privileges could now concentrate on administration. Also, the provision for the codification of law was of great consequence as before 1833, the laws were so imperfect that in most of the cases it was almost impossible to ascertain what exactly the law was. There were several types of laws enforceable in India and at times it used to become a difficult question to decide which law was applicable in a particular case.

Also, the provision concerning the abolition of slavery irrespective of religion, place of birth, descent and colour is another lendable feature of the Act. However, it might have been passed.

The Charter Act of 1853

Possessing a Significant constitutional landmark, this act was the last of the series of Charter passed by the British Parliament. As the time approached for the renewal of the company’s Charter, there was a growing demand that the double Government of the company should be put to an and this demand was being made for the reason that the Court of Directors had outlived its usefulness and the existence of the Court of Directors along with the Board of Control only resulting in unnecessary delay in the dispatch of business and under expenditure. It was also felt that the existing legislative machinery under the charter Act of 1833 was inadequate. Voice was also raised against the Governor- General of India continuing also as the Governor of Bengal, fearing that as long as he combined these functions he could not be free from a bias in favour of Bengal. Also, great territorial and political changes had taken place since the charter Act 1833. Then there was a growing demand for the decentralization of powers and for providing the people of India a share in the management of their own affairs for which there was some support in England also.

Thus, it was under these circumstances that the British Parliament was called upon to renew the charter of the company in 1853. The parliament had in the preceding year appointed two committees to look into the affairs of the company and on the basis of their reports; the charter Act of 1853 was framed and passed.




 

Features of the Act

  • The Act renewed the powers of the company and allowed it to retain the possession of the India territories and that is too not for any specified period as the previous Acts had done but only until the Parliament should otherwise provide. Also the Act provided that the salaries of the members of the Board of Control, Secretary and other officers would be fixed by the British Government but would be paid by the company.
  • The number of the members of the court of Directors was reduced from 24 to 18 out of which 6 were to be nominated by the crown.
  • The court of Directors was dispossessed of its power of patronage as the services were now made open to competitive examinations, in which no discrimination of any kind was to be made. And to enforce this scheme a committee with Lord Macaulay as its president was appointed in 1854.
  • The Court of Directors were now empowered to constitute a new presidency or to alter the boundaries of the existing ones to incorporate the newly acquired territories.
  • The Act Also empowered the crown to appoint a law commission in England to examine the reports and the drafts of the Indian law commission which had by then ceased to exist, and recommended legislative measures.
  • It introduced for the first time, local representation in the India (control) legislative council. Out of the 6 new legislative members of the Governor- General’s council, four members were appointed by the local (provincial) governments of Madras, Bombay, Bengal and Agra.



 

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