Constitutional Development
Part 1
By – Dr.Mahipal Singh Rathore
Topics Covered:
• Introduction – What is a constitution?
• Why do we need a constitution ? (significance)
• Constitutionalism
• Constitutional development of the Indian Constitution
Introduction
WHAT is a constitution?
• ‘Constitution’ is a compact document that comprises a number of
articles about the state, specifying how the state is to be constituted
and what norms it should follow.
(When we ask for the constitution of a country we are usually referring to this document.
But some countries, the United Kingdom for instance, do not have one single document
that can be called the Constitution. Rather they have a series of documents and
decisions that, taken collectively, are referred to as the constitution.)
• Fundamental law of the land
• “Legus legum” - law of all laws
• Fundamental law in accordance with which a nation/state is governed.
• Constitution gives us the framework of polity, the so-called ‘Trinity’ of our
state- LEGISLATURE, EXECUTIVE and JUDICIARY.
• Constitution provides the norms that govern the relationship within the
trinity.
• Determines the relationship between the state and the citizenship.
• It is not a static document. Constitution is an organic one. It GROWS
through:
– Amendments
– Judicial interpretations
– Conventions. (not written or codified, non punishable by law if it’s
violated)
– Statutes or laws made by the Legislature.
Why we need a constitution?
1. Constitution allows coordination and assurance: A constitution
provides a set of basic rules that allow for coordination amongst
members of a society.
2. Specification of decision making powers: A constitution specifies who
has the power to make decisions in a society. It decides how the
government will be constituted.
3. Limitations on the powers of government: A constitution sets some
limits on what a government can impose on its citizens. These limits are
fundamental in the sense that government may never trespass them.
4. Aspirations and goals of a society: A constitution’s purpose is to enable the
government to fulfill the aspirations of a society and create conditions for a just
society.
5. Fundamental identity of a people: a constitution expresses the fundamental
identity of a people. This means the people as a collective entity come into being
only through the basic constitution. It is by agreeing to a basic set of norms about
how one should be governed, and who should be governed that one forms a
collective identity. It showcases our ideals and aspirations as also our conflicts. It
creates and reflects an Indian identity and conveys as to what it means to be an
Indian
6. It gives us the structure of the polity and distributes/ specifies decision-making
powers.
7. What ‘birth certificate’ is to a child, constitution is to a country.
8. Constitution is a common normative home for the diverse elements of
Indian society. It is a set of basic rules for minimum co-ordination
between various sections. E.g.- ‘Dhamma ‘ of Ashoka and ‘DIN-I-ILLAHI’
of Akbar.
9. It imposes legally enforceable restrictions on the state. It also gives
legitimacy to the state and its actions.
10. A written constitution is essential for a federal set up. It deals with
many complicated contracts and to avoid conflicts, these must be
codified in writing.
Constitutionalism
A system of government based largely on the ideals of western liberal
democracy, the essence of which is restrictions and limitations on the
absolute powers of the state. It is envisaged in the writings of J S MILL,
DICEY, JAMES MADISON,MONTESQUE etc.
Components of Constitutionalism
1. RULE OF LAW- DICEY: “All manner of people are equally subject to
the ordinary law of the land as administered through ordinary
courts.”
Exceptions:
• Existence of quasi-judicial bodies outside the regular courts. e.g.-
administrative tribunals.
• Provisions for affirmative action (RESERVATION).’
• Art-361: immunity to president and governor from criminal proceedings.’
(the provision also carries potential to abuse as was alleged in the case of
SHIELA DIXIT being appointed as governor of Kerala.) . Immunity from
criminal prosecution amounts to a blind aping of the west as under the
British constitutional philosophy, all institutions are creations of the
crown. Thus, ‘ the creation cannot question the creator’. In contrast, in
India, all the institutions are the creations of the constitution.
*Affirmative action is a term coined by J F KENNEDY. It refers to any
specific policy to help the underprivileged.
• Diplomatic immunity
• Section 499 of IPC deals with ‘defamation’ by speech (slander) and by words
(Libel). Exception to this is Article -105: immunity against section 499 of IPC given
to legislators with respect to anything said on the floor of the house. Article –
105: Members of the Parliament, Article -194: Members of the State Legislature.
2. ABSENCE OF ARBITRARY POWER: Constitutionalism abhors absolutism.
Delegation of the powers must be complimented with appropriate norms
guiding its use and safeguards to prevent its abuse.
3. CONSTITUTION IS THE CONSEQUENCE, NOT THE SOURCE OF RIGHTS: It implies
that people can enjoy un-enumerable rights as well. But, this dictum is not
largely followed in Indian constitutional philosophy. Indian constitution is
uncomfortable with the idea of customary rights or rights outside the
constitution and statutes. For eg: in India, only after FRA, 2006, tribal acts were
recognized.
4. SEPERATION OF POWERS: Functional separation into the TRINITY-
Legislature, Executive and Judiciary. Law making, implementation and
adjudication respectively.
Benefits-
It preserves democracy and civil liberties
It promotes division of labor, specialisation and efficiency.
It institutionalises the system of checks and balances.
It promotes debates and constructive friction between the 3 organs often
leading to a better decision.
5. GRANT OF BASIC CIVIL RIGHTS.
6. FREE PRESS AND MEDIA.
7. TEMPORARINESS OF THE GOVERNMENT (elected every 5 years)
8. INDEPENDENT JUDICIARY.
CONCLUSION:
Right to life, liberty, expression, residence etc., can also be considered as
the components of constitutionalism. The western idea of
constitutionalism is negative in orientation as it principally seeks to
restrict, limit and disempower the state. Ideally, the state must also be
empowered adequately to enable it to deliver on the governance
agenda. Thus the right balance has to be struck between the needs of
checking operation and preventing chaos in the society.
Constitutional Development in India
Company Rule (1773-1858) Crown Rule (1858-1947)
1. Regulating Act – 1773 1. The Government of India Act – 1858
2. Jurisdiction Act – 1781 2. Indian Councils Act – 1861
3. Pitts India Act – 1784 3. Indian Councils Act – 1892
4. Indian Councils Act – 1909
4. Act of 1786
5. Government of India Act – 1919
5. Charter Act of 1793
6. Simon Commission – 1927
6. Charter Act of 1813
7. Communal Award – 1932
7. Charter Act of 1833
8. Government of India Act – 1935
8. Charter Act of 1853 9. Indian Independence Act – 1947
The Company Rule
1. Regulating Act of 1773
Significance:
• This was the first step taken by British Government to control and
regulate the affairs of East India Company in India.
• The political and administrative functions of the company were
recognized for the first time.
• It laid the foundation for central administration in India.
Features:
• Governor of Bengal was designated as the Governor General of Bengal
(Fort William)
• Governors of Bombay and Madras became subordinate to the Governor
General
• Executive Council of 4 members was formed to assist Governor General
• Supreme Court established – Lord Impey was the first chief justice
• Officers were prohibited from private trade or accepting bribe
Facts:
• First Governor General – Warren Hastings
• Supreme Court had one chief justice and three judges
• The court heard cases with the help of Jury of British subjects
• The Court of Directors (24) had to submit report on its Revenue - civil and
military
2. Jurisdiction Act of 1781
Features:
• Exempted public servant’s actions done during official capacity from
scrutiny of Supreme Court
• Jurisdiction over inhabitants of Calcutta and administer personal law
of defendant
• Supreme court to consider religions and social customs while
enforcing decrees
• Appeal from provincial court to Governor General-in-council is final
for cases less than 5000 pounds
• If it is more than 5000 pounds then appeal is sent to King-in-Council
3. Pitts India Act - 1784
Features:
• Demarcated the political and commercial functions of the company
• Commercial affairs to be managed by the court of directors
• Political affairs to be managed by a newly formed Board of Control
• Board of Control can supervise the operations of the government and
revenue
• Executive council’s members were decreased from 4 to 3
Significance:
• For the fist time, company’s territory in India was called as British possessions
in India
• British government got complete control over company’s affairs and its
administration
4. Act of 1786
Features:
• To convince Cornwallis to accept the Governor-Generalship (by Pitt)
• Governor General got powers to override his council is extraordinary
cases on his own responsibility
5. Charter Act of 1793
Features:
• Company’s privileges extended to 20 years
• Power to override Governor General will be extended to all future
Governor Generals and Governors
• All the members salary was to be paid from Indian Revenue.
(practiced up to 1919)
• Permission for East India Company to ship opium from India to China
• Country privileges given to the officials of East India Company to trade
outside India
6. Charter Act of 1813
Features:
• Monopoly ended except for tea trade and trade with China
• Allotted one lakh annually for education and improvement of
literature and Science etc.
• Christian missionaries allowed to preach in India
7. Charter Act of 1833
Significance:
• Came in the wake of Industrial revolution and liberal principles in
England
• The Act created for the first time, a government of India having
authority over the State territorial area possessed by the British
Features:
• Governor General of Bengal was designated as Governor General of
India
• Bombay and Madras prescriptions lost their legislation powers
• Governor General got complete control over civil and military affairs
• A law member was added as the fourth member to the Governor
General’s Council
• Law commission was constituted in 1834
• Laws made from these acts were named as Acts (previously called
regulations)
• East India Company had to end its monopoly over commercial
activities. (became an administrative body mainly*)
Facts:
• First Governor General of India: William Bentick
• T.B. Macaulay became the first law member, also the first law
commission’s chairman.
• This act tried but failed to introduce open competition for civil
services
• Section 87, no discrimination to office under company (between
Indians and British Residents)
• Abolition of slavery by Act V of 1843
8. Charter Act of 1853
Features:
• A separate governor was appointed for Bengal
• Extended the company’s rule to possess Indian territories. (no specific
tenure)
• For the first time separated the legislature and executive functions of
Governor General’s Council
• Open competition was introduced to recruit for civil services
• Macaulay Committee was introduced to recruit for Civil Services
• Number of Court of Directors were reduced from 24 to 18
• Legislation became a separate entity
• Central legislative Council was formed comprising of –
– Six legislative members
– 4 members from local provincial governments
– 2 members appointed by the British
– 1 chief Justice of Calcutta + 1 puisne judge of Calcutta
