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Indian Polity with Indian Constitution & Parliamentary Affairs
Indian Polity with Indian Constitution & Parliamentary Affairs
Indian Polity with Indian Constitution & Parliamentary Affairs
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Indian Polity with Indian Constitution & Parliamentary Affairs

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I have great pleasure in placing this book before the aspirants of the top administrate services. The book has been written to meet the growing requirement of the candidates appearing for the Civil Services Examination (Preliminary and Main) conducted by The Union Public Services Commission. In 2011 and 2013 the UPSC changed the pattern and Syllabus of the preliminary and main examinations, respectively. In both the changes, the scope of Indian Polity has been considerable increased. Hence this new edition of the book is more relevant now and is aimed to meet the expanded needs of the aspirants. This comprehensive volume would enable the readers to acquire a complete and detailed understanding of the subject. It covers all dimensions (constitutional, nonconstitution political and administrative) of the subject. My first hand experience of coaching the candidates for the Civil Services Examinations has been a great source of inspiration and has helped me immensely in writing this book. An efforts has been made to make the contents of the book relevant, authentic and upto date. The constitutional provision are explained in the light of the debates of the constituent Assembly of India as well as the judgement of the supreme Court and the high courts. I have also used tables to make the presentation more clear. The Appendices, Provide at the end of the book. Serve as a reference section. I welcome all constructive comments and concrete suggestion from the readers of this book.

LanguageEnglish
PublisherBook Circle
Release dateDec 8, 2022
ISBN9798215141311
Indian Polity with Indian Constitution & Parliamentary Affairs

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    Indian Polity with Indian Constitution & Parliamentary Affairs - Virendra Singh

    Preface

    I have great pleasure in placing this book before the aspirants of the top administrate services. The book has been written to meet the growing requirement of the candidates appearing for the Civil Services Examination (Preliminary and Main) conducted by The

    Union Public Services Commission.

    In 2011 and 2013 the UPSC changed the pattern and Syllabus of the preliminary and main examinations, respectively. In both the changes, the scope of Indian Polity has been considerable increased. Hence this new edition of the book is more relevant now and is aimed to meet the expanded needs of the aspirants.

    This comprehensive volume would enable the readers to acquire a complete and detailed understanding of the subject. It covers all dimensions (constitutional, non-constitution political and administrative) of the subject. My first hand experience of coaching the candidates for the Civil Services Examinations has been a great source of inspiration and has helped me immensely in writing this book.

    An efforts has been made to make the contents of the book relevant, authentic and upto date. The constitutional provision are explained in the light of the debates of the constituent Assembly of India as well as the judgement of the supreme Court and the high courts. I have also used tables to make the presentation more clear. The Appendices, Provide at the end of the book. Serve as a reference section.

    I welcome all constructive comments and concrete suggestion from the readers of this book.

    —Virendra Singh

    iii

    To

    My Guru’s who made me

    Deepesh Jain

    (Publisher Arihant Publications)

    &

    Rajat Manocha

    (Publisher Trueman Book Company)

    iv

    Contents

    v

    vi

    1CHAPTER

    Framing of Indian

    Constitution

    Constitution

    What is Constitution?

    It is in short, a rule of book of a nation, codifying rule of law.

    Constitution is a legal document having a special legal sanctity, which sets out the framework and the principal functions of the organs of the government of a state, and de-clares the principles governing the operation of those organs. Like every other Constitution, the Indian Constitution also seeks to establish the fundamental organs of government and administration, lays down their structure, composition, powers and principal functions, defines the inter-relationship of one organ with another, and regulates the relationship between the citizen and the state, more particularly the political relationship. The states have reasserted certain principles of law through written Constitutions.

    As a democratic Constitution, the Indian masterpiece also reflects the fundamental political values in substantive ways by guaranteeing Fundamental Rights to the citizens, and in procedural ways by providing remedies. It mirrors basic values about who shall govern, and in what direction. Constitution means the structure of a body, organism or organization, or we can also say, what constitutes it or what it consists of. Because the nation is one of the biggest in the would with most of varieties of the people and the cultures, India needs an expressly written code of governance, more specifically when the people chose to have different institutes, estates, mechanisms and levels of sovereignty. And thus we have the longest written constitution, which is one of the essential features of democratic federation.

    1

    2 Indian Polity

    Functions of the Constitution

    The Constitution is a political structure, whether it is written or not and followed or not. They have several functions.

    Expression of Ideology. It reflects the ideology and philosophy of a nation state.

    Expression of Basic Law. Constitutions present basic laws which could be mod-ified or replaced through a process called extra ordinary procedure of amendment. There is a special law also which usually focus upon the rights of the citizens, for instance, rights concerning language, speech, religion, assembly, the press, property and so on.

    Organizational frame work. It provides organizational framework for the governments. It defines the functions legislature, executive and judiciary, their inter-relationship, restrictions on their authority etc.

    Levels of Government. Constitution generally explains the levels of different organs of the Government. Whether it is federal, confederal or unitary will be described by the Constitution. They delineate the power levels of national and provincial governments.

    Amendment provision. As it would not be possible to foretell all possibilities in future with great degree of accuracy, there must be sufficient provisions for amendment of the Constitution. It should contain a set of directions for its own modifications. The system might collapse if it lacks in scope for modification. Inherent capacity to change according to changing times and needs help any system to survive and improve.

    Soviet Constitution was mostly an expression of ideology and was less an expression of organizational set up. The American Constitution is more an expression of governmental organization and a guideline for the power relationship of the regime than an expression of the philosophy of the regime.

    What is Constitutionalism?

    One needs to know the ‘Constitutionalism’ and Constitutional Law before understanding the philosophy of Constitution of India. Having a Constitution itself is not Constitutionalism. Even a dictator could create a rulebook calling it Constitution, which never meant that such a dictator had any faith in Constitutionalism. Recognizing the need for governance, the Constitutionalism equally emphasizes the necessity of restricting those powers.

    The Constitutional law means the rule, which regulates the structure of the principal organs of the Government and their relationship to each other, and determines their principal functions. The rules consist both of legal rules enacted or accepted as binding by all who are concerned in Government. All the Constitutions are the heirs of the past as well as the testators of the future. Constitution of Indian Republic is not the product of a political revolution but of the research and deliberations of a body of eminent representatives of the people who sought to improve the existing system of administration.

    Thus the Constitutionalism, in brief, is specific limitations on general governmental powers to prevent exercise of arbitrary decision-making. Unlimited powers concentrated

    in a few hands at the helm of affairs and their exercise would jeopardize the freedom of the people. These powers have to be checked and balanced with equally powerful alternatives in a system, where it will be nearly impossible for dictators to emerge. In one word ‘Limited Governance’ is the Constitutionalism, which is supposed to reflect in the Constitutional Law of a democratic state. Constitution of India is the Constitutional Law incorporating the Constitutionalism. The listed fundamental rights and guaranteed remedies, creation of judiciary as an impartial arbiter with all independent powers besides broad based legislative check on the executive are the reflections of such constitutionalism. From these essential characters the doctrines of judicial review, rule of law, separation of powers, universal franchise, transparent executive, fundamental right to equality and quality of life emerged and consolidated.

    At the same time, the rulebook has a responsibility to check anarchy and possibility of people misusing freedom to resort to violent means of overturning the constitutionally governing institutions. That responsibility is undercurrent in the reasonable restrictions placed on the exercise of fundamental rights of the people. The founding fathers of the Constitution made restrictions specific while the rights appear in general terms, paving a way for independent judiciary to expand the scope of freedoms and reading emerging rights into the sacred statements of rights under fundamental rights chapter. At the same time specification of restrictions operate as powerful restraints on the powers of the rulers.

    The right as the individual power in the hands of people and authority as the ruling pow-er in the hands of institutions cannot go arbitrary and anarchic undermining the democrat-ic peace. The democratic constitutionalism is three pronged in Indian Constitution, one-guaranteeing freedoms, two- restricting governing institutions, three- empowering the independent arbiter of judiciary with power to review the executive and legislative orders affecting the interests of people in general or afflicting basic norms of rule of law.

    Development of the Indian Constitution

    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

    Regulating Act, 1773

    First attempt by the British Parliament to regulate the affairs of the East India Company;

    Centralised the administration of Company's territories in India;

    4 Indian Polity

    Governor of Bengal was designated as the Governor General of Bengal and Council of 4 members was appointed for Bengal;

    Bombay and Madras Presidencies were subordinated to Bengal Presidency;

    Supreme Court was set up at Calcutta; and

    (viii) Company's servants were forbidden from accepting bribes or doing private trade.

    Amending Act, 1781

    It settled the question of jurisdiction of the Supreme Court :

    Pitt's India Act, 1784

    It was the first effective substitution of Parliamentary Control over East India Company as it transferred the Indian affairs of the Company into the hands of the British Government;

    Abolished dual system of governance.

    Board of Control consisting of 6 Parliamentary Commissioners was constituted to control civil, military and revenue affairs of India;

    Court of Directors had to comply with the orders and directions of the Board;

    Strength of Governor-General's Council reduced to 3;

    Control of Governor-General-in-Council on Bombay and Madras Presidency was enlarged and made more effective.

    Act of 1786

    Governor-General became the Commanderin-Chief of Indian Forces.

    Charter Act, 1793

    East India Company's monopoly over trade was extended for 20 more years

    Expenses and salaries of the Board of Control to be charged on Indian Revenue; and

    Governor-General could over-ride his Council.

    Charter Act, 1813

    East India Company was deprived of its trade monopoly in India except in tea and opium trade with China;

    All Englishmen could trade with India subject to certain restrictions;

    Rules and procedures were made for use of Indian revenue; and

    A sum of Rs. 1 lakh was earmarked annually for education.

    Charter Act, 1833

    Governor-General of Bengal became the Governor-General of India;

    Company was asked to close its business at the earliest;

    It put an end on Company's trade monopoly even in tea and opium with China;

    Government of Madras and Bombay was deprived of legislative powers;

    A fourth member (Law Member) was added to the Council of Governor-General;

    Government Service was thrown open to the people of India;

    All laws made by Governor General-in- Council, henceforth came to be known as Acts and not regulations;

    Provision was made for appointment of Law Commission for codification of laws

    Slavery was abolished.

    Charter Act, 1853

    For the first time a separate legislative machinery consisting of 12-member Legislative Council was created;

    Law Member was made a full member of the Executive Council of the Governor-General. Six additional members were added for legislative purposes; and

    Recruitment of Civil Services was based on open annual competitive examination.

    Government of India Act, 1858

    Rule of company in India ended and that of the Crown began;

    System of double government ended as both the Court of Directors as well as the Board of Control was abolished;

    Secretary of State for India was appointed. He was assisted by a 15-member Council (India Council). He was to exercise the powers of the Crown;

    What do you Understand by The Terms 'Diarchy' & 'Devolution Rules'?

    In Indian administration, these terms were used for the first time in the Government of India Act, 1919 (Montague-Chelmsford 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.

    Secretary of State was to be a member of the British Cabinet;

    Secretary of State governed India through the Governor General;

    Governor-General was to be called the Viceroy and was the direct representative of the Crown in India; and

    A unitary and highly-centralised administrative structure was created.

    6 Indian Polity

    Indian Councils Act, 1861

    Policy of Association of Indians in legislation started;

    Portfolio system was introduced;

    For legislation; Executive Council of Viceroy was enlarged by 6 to 12 members composed of half non-official members. Thus foundation of Indian Legislature was laid down;

    Legislative powers of the Presidency Governments, abolished in 1833, were restored; and

    Viceroy could issue ordinances in case of emergency.

    Indian Councils Act, 1892

    It was the beginning of representative system in India.

    Though the majority of official members was retained, the non-official members of the Indian Legislative Council were henceforth to be nominated by the Bengal Chamber of Commerce and the Provincial Legislative Councils.

    Non-official members of the Provincial Council were to be nominated by certain local bodies such as universities, district boards, municipalities, etc.; and

    Councils were given the power to discuss budget and to question the Executive.

    Indian Councils Act, 1909

    Also known as the Morley-Minto Reforms

    ᜀĀᜀĀ  Introduced, for the first time, an element of elections to the Legislative Councils;

    ᜀĀᜀĀ  In Provincial Legislative Councils, nonofficial members were to be in majority; and

    ᜀĀᜀĀ  This Act introduced the system of separate electorates (for Muslims).

    Government of India Act, 1919

    Popularly known as Montague-Chelmsford Reforms

    The idea of Responsible Government was stressed;

    Office of the High Commissioner of India was created in London;

    Indian Legislature became bicameral for the first time;

    Communal representation was extended to Sikhs;

    Secretary of State for India was now to be paid from British revenue;

    Diarchy was introduced in provinces by dividing subjects of administration between official members and elected members.

    Government of India Act, 1935

    It provided for the establishment of an All-India Federation consisting of the British Provinces and the Princely States. The joining of Princely States was voluntary. The Federation never came into being.

    Diarchy was introduced at the Centre. Diarchy in Provinces was replaced by 'Provincial Autonomy' and they were granted separate legal identity. Responsible

    governments were set up in States under Prime (Chief) Ministers elected by Legislatures;

    Governor was given special responsibilities (or discretion) in several matters;

    Three-fold division of powers was done- Federal, Provincial and Concurrent Lists. Residuary powers were to be with the Governor-General;

    The India Council of Secretary of State for India was abolished;

    Principle of separate electorate was extended further to include Anglo-Indians, Indian Christians and Europeans also; and

    A Federal Court was to be constituted with a Chief Justice and 10 other Judges. This was set up in 1937.

    Making of The Indian Constitution

    India from the beginning of recorded history, had to face a long succession of foreign invasions. In the 16th century, the wealth of India attracted a host of European traders to India. The Dutch, the French and the British merchants became the favorable rivals to the earlier traders, the Portuguese. All of them were attracted to India by its fabulous wealth, and none came to settle here. The British traders came to India in the 17th century and certain British traders approached their Queen for a charter to carry on trade with East Indias. The charter was granted in December 31, 1660 and there by the East India Company was given exclusive right to carry on trade with India. During the 17th century the Mughal Empire expanded and reached its zenith in India. After the death of Aurangazeb, the Mughal Empire rapidly disintegrated. This gave East India Company a chance to establish its dominion in India. It began its career of conquest in 1757, the battle of Plassey. A hundred years after the battle, the East India Company established its undisputed sovereignty over the whole of India. By the great revolt of 1857, the company’s rule was terminated and the country passed under the direct rule of the British Crown; under the Government of India Act. 1858. The Act was dominated by the principle of absolute imperial control without any popular participation of Indians in the administration of India. The subsequent history of India upto the making of the constitution (1949) is of gradual relaxation of imperial control and the evolution of responsible government.

    An Analysis of National Movement

    The Constitution of India was adopted in, November, 1949 and enacted in January 1950. It was influenced by numerous political system of the world and numerous Acts passed by British Government, especially the Government of India Act 1935.

    The English East India Company was founded in London in 1600, whose one share holder was Queen Elizabeth I, to have trade with India. Within a span of about 150 years, the company became a territorial power. The company’s commercial activities came under cloud and the British Government sought to regulate its affairs and assert sovereignty over the company's expanding territories, until the British Government finally took over region of India in 1958. But for the people of India the rule continued to be the same suppressive and exploitive.

    8 Indian Polity

    Social and religious renaissance made a ground for political awakening in India. Raja Ram Mohan Roy rightly regarded as the prophet of Indian Renaissance, was, indeed, the father of modern India. The Indian dailies like Amrit bazar Patrika, the Indian Mirror, the Hindu, the Kesari, the Bengali and like contributed a lot to the growth of Indian nationalism. The English language, the means of transport and communication bring the Indians closer.

    Before the birth of Indian National Congress, there had emerged numerous provincial organisations in the country. They were the British Indian Society, the British Indian Association, the Bombay Presidency Association, and the Mahajan Sabha etc. The Indian National Congress was founded in 1885 by an English East India Company’s retired official, A O. Hume. The first session of Indian National Congress began in Bombay, on December 28,1885 with W C. Bannerjee, who was the first president, in the chair.

    The Indian liberation struggle, spearheaded mainly by the Indian National Congress, witnessed a fairly long period of struggle, passed through reforms (1885– 1905 ), the demand for Swaraj (1906-1928 ), and sought independence (1929–1947 ), largely a peaceful and non-violent movement. The three major stages through which the Indian national movement passed were: (a) the moderate period, (b) the extremist period, and (c) the Gandhian period.

    The moderate period, from 1885 -1905, was led by Hume, Naoroji, Mehta, Rande, Gokhale and the like. These leaders thought of English rule in India as a blessing and related India’s social economic development to the just rule of British in the country; their method is limited prayers, petitions, and sending deputations to the authorities in India as well as in England in order to build a favorable public opinion for India.

    Extremism, was led by Bal Gangadar Tilak, Lala Lajpath Rai, Bipin Chandrapal, and Aurobindo Ghosh . The partition of Bengal which was revoked in 1905 gave birth to the protest movement engulfing whole nation. Together with the anti- partition feelings, there spread swedesi and boycott activities; the whole country was ablaze with sentiments full of nationalism. The nationalist movement came to be led by the extremists demanding Swaraj with measures such as passive resistance and national wide protests.

    The Gandhian era the nationalist liberation struggle began around 1917 and covered almost three decades. With the techniques of non-violent Satyagraha–Gandhi rose from local mass struggle at Champaron, Kheda and Ahamadabad to the nationalist movements. He used the methods including the Non-Cooperation Movement (1920-1922), the Civil Disobedience Movement (1930-34), the Individual Satyagraha (1940), and the Quit India Movement (1942).Truth was his goal; non – violence, his means; humanity, his religion. Rabindranath Tagore gave Gandhi the title of Mahatma, and the nation, the ‘Father’.

    So many legislative provisions were made and administrative reforms were implemented by British India through Indian Council Acts 1861, 1892 etc. The first attempt of British administration to introduce a representative and popular government was made by the Minto-Moreley reforms of 1909.

    Indian Councils Act 1909

    The Indian Councils Act 1909 is commonly known, as the Morely-Minto Reforms. It was an Act of the Parliament of the United Kingdom that brought about a limited increase in the involvement of Indians in the governance of British India.

    John Morley, the then Secretary of State for India, and the Governor general of India Minto believed that cracking down on terrorism in Bengal was necessary but not sufficient for restoring stability to the British Raj after Lord Curzon’s partitioning of Bengal. They believed that a dramatic step was required to put heart into loyal elements of the Indian upper classes and the growing westernized section of the population.

    They produced the Indian Councils Act of 1909 (Morely –Minto reforms). These reforms did not go any significant distance towards the Indian National Congress demand for ‘the system of government obtaining in Self-Governing British Colonies’.

    The Act of 1909 was important for the following reasons.

    It effectively allowed the election of Indians to the various legislative councils in India for the first. Previously some Indians had been appointed to legislative councils. The majorities of the councils remained British government appointments. Moreover, the electorate was limited to specific classes of Indian nations.

    The deliberative functions of the Legislative Councils were also increased by the Act. It gave them the opportunity to move resolutions on the Budget and any matter of public interest. An element of election was also introduced in the Legislative Councils at the Centre.

    The system of election introduced by the Act provided for separate representation for Muslim Community. It sowed the seeds of separation which led to the partition of the country. The Act provides that

    Indian Muslims be allotted reserved seats in the Muncipal and District Board, in the Provincial Councils and in the Imperial Legislature;

    the number of reserved seats be in excess of their relative population (25 percent of the Indian population); and

    only Muslims should vote for candidates for Muslim seats (separate electorates)

    The number of the members of the Legislative Council at the center was increased from 16 to 60

    The number of the members of the Provincial Legislatives was also increased. It was fixed as 50 in the provinces of Bengal, Madras and Bombay, and for the rest of the provinces it was 30.

    The member of the Legislative Councils, both at the Centre and in the provinces, were to be of four categories ie, ex-officio members (Governor General and the members of their Executive Councils) nominated official members (those nominated by the Governor General and were government officials), nominated non-official members (nominated by the Governor General but were not government officials and elected members (elected by different categories of Indian people)

    The right of separate electorate was given to the Muslims.

    Official members were to form the majority but in provinces non-official member would be in majority.

    The members of the Legislative Councils were permitted to discuss the budgets, suggest the amendments and even to vote on them; excluding those items that were included as nonvote items. They were also entitled to ask supplementary questions during the legislative proceedings.

    The Secretary of State for India was empowered to increase the number of the Executive Councils of Madras and Bombay from two to four.

    10 Indian Polity

    Two Indians were nominated to the Council of the Secretary of State for Indian Affairs.

    The Governor General was empowered to nominate one Indian member to his Executive Council.

    Subsequently, to this, the Government of India Act 1919, as passed merely to consolidate all the preceding Government of India Acts.

    Government of India Act 1919

    The Indian National Congress, which established in 1885, became more active during the first world war and started its campaign for self-government . In response to this popular demand, the British government declared its policy in 1917 through Montagu (Secretary of state) and Chelmsford (Governor General) report. This led to the enactment of an Act called Government of India Act 1919. The main features of the Act, were as follows.

    Introduction of ‘Dyarchy’ in the Provinces. The Act introduced an absurd system of administration in the Provinces known as ‘Dyarchy’. The subjects of administration were to be divided: Central and provincial. The ‘Central’ subjects were exclusively kept under the control of Central govern-ment. The ‘provincial subjects’ were sub-divided into ‘transferred’ and ‘reserved’ subjects. The ‘transferred’ subjects assigned to the provinces were to be administered by the ‘Governor’ with the aid of ministers, who were responsible to the legislative councils. The ‘reserved subjects’ were to be administered by the Governor and Executive Council, without any responsibility to the Legislative Council.

    Relaxation of central control over the Provinces. The rules made by the Govern-ment of India Act of 1919 were known as ‘Devolution Rules’. It separates the sub-jects of administration into two categories: Central and Provincial. The subjects which were brought under the category ‘Central’ were subjects of all India impor-tant. The matters relating to the administration of ‘provinces’ were classified as ‘provincial’. This was actually a relation of control over provinces, even in legisla-tive and financial matters. The provinces could run the administration with the aid of revenues collected by provinces themselves. The provincial budgets were separated from central budget. The provincial legislature was empowered to present its own budget and levy its own taxes.

    The devolution of power should not be like a ‘Federal’ distribution of powers. The provinces got power by way of delegation from the Centre. The central legislature, retained be power to legislate for the whole of India. The control of the ‘Governor General’ over provinces was also retained by laying down a provincial bill which would not because the law unless it was also assented by be Governor General. The Act empowered the Governor to reserve a bill for the consideration of Governor General.

    The Indian legislature made more representative. The Central Government, led by the Governor General continued to remain responsible only to the British Par-liament, through the Secretary of state. Nevertheless, the Indian legislature was made more representative and bicameral. The Indian Legislative Council was trans-formed into a bicameral legislature existing of council of states (upper house) and Legislative Assembly (Lower house) The elections were arranged on a communal and social basis, developing the ‘Morely-Minto’ device.

    The reforms of Act 1919, failed to fulfil the aspirations of the people in India and led to an agitation by the Congress under the leadership of Gandhiji (Non –cooperation movement)

    Government of India Act 1935

    The non–cooperation movement led the British Government in 1927, to appoint a statutory commission, as envisaged by the Government of Indian Act 1919. The commission was appointed to enquire into and report on the working of the Act.

    The commission was headed by Sir John Simon and reported in 1930. The report was considered by the round table conferences consisting the delegates of British government, and of British India and the rules of Indian states. A white paper was prepared on the basis of this conference.

    The British government gave the joint select committee the task of formulating the new Act for India. Lord Linlithgow was appointed as the president of the committee, which consisted of members from the two houses of British parliament, representation of British India and princely states. The bill, after proper discussion and passage in two house of British Parliament, was enforced as the Government of India’ Act 1935, in July 1935.

    The main features of the Act of 1935 were:

    The Act promised a federation of India, comprising both the provinces and the Indian states as units. It was optional for the Indian states to join the federation. Since a specified number of rulers of Indian states had not signed the ‘Instruments of Accession’ the Federation envisaged by the Act of 1935, never came to being. The central government continued to function in accordance with the 1919 Act

    A Federation of India was promised for, comprising both provinces and states. The provisions of the Act establishing the federal central government were not to go into operation until a specified number of rulers of states had signed ‘Instrument of Accession’. Since, this did not happen, the central government continued to function in accordance with the 1919 Act and only the part of the 1935 Act dealing with the provincial governments went into operation.

    The Governor General remained the head of the central administration and enjoyed wide powers concerning administration, legislation and finance.

    No finance bill could be placed in the Central Legislature without the consent of the Governor General.

    The Federal Legislature was to consist of two houses, the Council of State (Upper House) and the Federal Assembly (Lower House).

    The council of State was to consist of 260 members, out of whom 156 were to be elected from the British India and 104 to be nominated by the rulers of princely states.

    The Federal Assembly was to consist of 375 members; out of which 250 were to be elected by the Legislative Assemblies of the British Indian provinces while 125 were to be nominated by the rulers of princely states.

    The Central Legislature had the right to pass any bill, but the bill required the approval of the Governor General before it became Law. On the other hand, Governor General had the power to frame ordinances.

    12 Indian Polity

    The Secretary of State was not expected to interfere in matters that the Governor dealt with, with the help of Indian Ministers.

    The provinces were given autonomy with respect to subjects delegated to them.

    Dyarchy, which had been established in the provinces by the Act of 1919, was to be established at the Centre. However, it came to an end in the provinces.

    Two new provinces Sindh and Orissa were created.

    Reforms were introduced in N.W.F.P as were in the other provinces.

    Separate electorates were continued as before.

    One-third Muslim representation in the Central Legislature was guaranteed.

    Autonomous provincial governments in 11 provinces, under ministries responsible to legislatures, would be setup.

    Burma and Aden were separated from India.

    The Federal Court was established in the Centre.

    The Reserve Bank of India was established.

    Both the Indian National Congress and the Muslim League opposed the Act, but participated in the provincial elections of winter 1936-37, conducted under stipulations of the Act. At the time of Independence, the two dominions of India and Pakistan accepted the Act of 1935, with few amendments, as their provisional constitution.

    The Period after Government of India Act, 1935

    The demand for a competition made by the people of India, without outside interference, was officially asserted by the INC in 1935 itself. Even though the Act of 1935 were opposed by the prominent parties, viz, INC and Muslim League, elections to the provincial assemblies were held in 1937. The INC formed ministries in major provinces and history proves that the ministries were able in administration and tackled the problems of basic education and adult literacy. In 1938, Pandit Nehru definitely formulated the demand for Constituent Assembly and the Working Committee of Congress in 1938 reiterated it. In 1940, the coalition government in Britain recognized this demand and in 1942, sent Sir Stafford Cripps to India with a draft declaration of proposals (Cripps proposals). The Cripps offered Dominion Status to India and the right of secession from the common wealth. It also proposed that the provinces and states would be given the option of not acceding to any constitution and again the right to keep themselves as states independent of the Indian Union. INC rejected the proposal and encountered the opposition of the entire range of Indian public opinion.

    Cabinet Mission Plan

    After the rejection of the Cripps Proposals, followed by the dynamic Quit India Movement various attempts were made to reconcile the Indians ‘Simla conference’ was held at the instance of the Governor General, Lord Wavell (Wavell Plan). All these having failed, the British Cabinet sent three of its members, including Cripps, to make another attempt. The Cabinet Mission arrived in India in March 1946. The members of the mission together with Wavell, carried on long negotiations with Indian leaders on the two issues of an interim government and principles and procedures of framing a new constitution

    giving India freedom. The Cabinet Mission came out with a plan but the Congress and Muslim League could not reach an agreement on the future constitution. The plan rejected the Jinnah’s demand of Pakistan. Initially the long term plan envisaged in the proposal was accepted by both Congress and Muslim League, but the League withdrew its acceptance of the long-term plan and called on the Muslim to go in for the ‘Direct Action’ to achieve Pakistan.

    Interim Government

    The Cabinet Mission plan also contained a provision for setting up a short-term interim government. After the failure of care-taker government a Congress dominated government under the leadership of Nehru was sworn in on September 02, 1946. Muslim League also joined the government on October 26, without giving up its Direct Action Programme. In July 1946, elections to the Constituent Assembly were held and the Congress and League were returned with an overwhelming majority. The League refused to attend the Cabinet Assembly which had started its functioning, from December 09, 1946.

    The programme of ‘Direct Action" inaugurated by Muslim League transformed the whole of Indian scene to communal riots on an unprecedented scale. Large scale Muslim attacks began on the Hindus at different Muslim dominated parts of India. Thousands were killed. The widespread riots and massacres changed the views of the Interim government led by Nehru and they had began to think in terms of two dominions.

    Prime Minister Attlee who came to power in Great Britain, after IInd world war, made a speech in the British Parliament, and fixed 1948 June as deadline for the transfer of power to Indians, whether as a whole or in some areas or in such other way as may seen reasonable for the best interest of the Indian people. Viceroy Wavell was replaced by Mount Batten who had given plenipotentiary powers and charged with the task of transferring power to India. Mountbatten after discussions with the Congress leaders and convinced them that the only alternative was the partition of India. This agreement has come to be known as the ‘3rd June plan’ or Mountbatten plan. The 3rd June Plan of 1947 included the principles:

    Principle of partition of India was accepted by British Government.

    Successor governments would be given dominion status.

    Implicit right to secede from the British common wealth

    The Governor-General announced that the transfer of power would take place by August 15, 1947. This Mount Batten Plan became the basis of Indian Independence Act 1947 which ratified the British Parliament on July 18 and implemented in 15th August 1947.

    The Indian Independence Act, 1947

    The Prime Minister of Britain, Clement Attlee announced on 20 February 1947 that:

    The British Government would grant full self government to British India by June 1948,

    The future of princely states would be decided after the date of final transfer is decided and

    The Indian Independence Act was the implementation of June 3 plan.

    14 Indian Polity

    On the basis of Mount Batten plan (3 June Plan), the British Parliament passed an Act, called the Indian Independence Act, 1947. The Act partitioned India into two independent dominions of India and Pakistan. The Act received the royal ascent on 18th July, 1947 and the two dominions came into being on 15th August, 1947. The most important provisions of the Act were:

    The division of British India into the two new and fully sovereign dominions of India and Pakistan, with effect from 15 August 1947.

    The partition of the provinces of Bengal and Punjab between the two new countries.

    The establishment of the office of Governor- General in each of the two new countries, as representative of the Crown.

    The conferral of complete legislative authority upon the respective Constituent Assemblies of the two new countries.

    The termination of British sovereignity over the princely states with effect from 15 August 1947 (this was intended to encourage the various rulers to accede to one or other of the two new countries).

    The Act also made provision for the division of joint property, etc. between the two new countries, including in particular the division of the armed forces.

    Lord Mountbatten, the last Viceroy, was retained as the Governor-General of India. Jawaharlal Nehru became the Prime Minister of India and Sardar Vallabhbhai Patel became the Deputy Prime Minister of India.

    Mohammed Ali Jinnah became the Governor-General of Pakistan, and Liquate Ali Khan became the Prime Minister of Pakistan.

    Three princely states geographically inalienable to Pakistan joined the Dominion.

    The Constituent Assembly of India

    The idea of Constituent Assembly is the American contribution to the science of Government. The Philadelphia Convention of the United States was the first constitutionalconvention which was the direct inspiration of the French Nation and Philosophers like John Locke, Montesque andRousseau. Theconcept of Constituent Assembly rests on the doctrine of Sovereigntyof the People through the expressions like We the People of India.According to the proposals of the Cabinet Mission Plan, theelections to theConstituentAssembly were held in July 1946. Out of the 296 seats for British India, the Congress secured 209 seats and the Muslim League secured 73 seats. 93 seats were allotted to the Indian states were not filled. The Constituent Assembly was a galaxy of top ranking leaders of the Indian National Congress and the Muslim League and statesmen fromvarious fields like Administration, Law, Education, Journalism, Literature etc.

    The first session of the Constituent Assembly was held from 9th December 1946 to 25th January 1947. Dr. Rajendra Prasad was elected as the permanent chairman of the Constituent Assembly. The objective resolutionwas passed on 22nd January 1947, which the Muslim League refused to join. This resolution declaredthe fundamental objectives which were to guide the Constituent Assembly in its deliberations. It gave expressions to the ideas and aspirations of the people of India. However it was to be observed that "the

    Constituent Assembly was not a sovereign body and it was to work within the framework of the Cabinet Mission Plan".

    The second session of the Constituent Assembly set up 8 committees namely Rules Committee, Steering Committee, Advisory Committee, Drafting Committee, Union Subject Committee, Union Constitution Committee, Provincial Constitution Committee and States committee. Unanimous approval was given to a resolution moved by Nehru recommending a redistribution of the provinces so as to make them homogeneous units based on linguistic, cultural, administrative and economic consideration as soon as possible after the new constitution had been enforced.

    The third session of the Constituent Assembly lasted from 22ndApril 1947 to 2ndMay 1947. During this session the report of the Union Constitution Committee and the Advisory Committee on Fundamental Rights and minorities were submitted. The Constituent Assembly started debates on the Fundamental Rights.

    The fourth session of the Constituent Assembly was held from 14th July 1947 to 31st July 1947. The report of the Committee on Union Constitution, Provincial Constitution, theSub- committee onminorities and Fundamental rights and the addition of the Scheduled Caste were presented. This session also adopted the National Flag on 22ndJuly 1947.

    The fifth session of the Constituent Assemblywas held from 14thAugust 1947. According to the provision of the Indian Independence Act of 1947, the Constituent Assembly became a sovereign body. It was not to work within the framework of the Cabinet Mission Plan. It was to enact ordinary laws for theland and it was to make the new Constitution. During the session all the previous reports of the Union Committees were discussed in the light of the Indian Independence Act. There was no limitation of the work of the Constituent Assembly. On 29th August 1947, a Drafting Committee of the seven members was set up with DrB. R. Ambedkar as chairman.

    On 21st February 1948, the Drafting Committee submitted its report.The Draft Constitution was presented to the Constituent Assembly on November 4 1948 which thereafter started debates.The consideration of the Draft Constitution took 114 days. About 7635amendments were proposed and 2973 amendments were actually discussed by the Constituent Assembly. This alone will show the manner in which the Constituent Assembly conducted its business. Toanyonewho goes through the proceedings of the Assembly, it will be clear that it was a great democratic exercise of which Indians can be proud.The Draft Constitution had 315 articles and 13 sections and after final discussions it contained 395 articles and 8 schedules. The constitution was adopted by the Constituent Assembly on 26th November 1949 and it was inaugurated on 26th January 1950.

    Constituent Assembly: A Sovereign Body

    The roots of the formation of the Constituent Assembly and the framing of the Constitution are relevant to understand its philosophy and evolution. The Constituent Assembly was formulated under the Cabinet Mission Plan prior to Independence. The elections to the Constituent Assembly were conducted under the system of separate electorate based on the community. After such an election too, it could not become a sovereign body. Thus its authority was limited in respect of the basic principles and procedure. The British Government brought it into existence in their process of conceding

    16 Indian Polity

    less and retaining the most of the authority with itself as counter strategy to the revolutionary raising. The Constituent Assembly was expected to work within the framework of the Cabinet Mission scheme alone. However, these limitations were removed by the Indian Independence Act, 1947 under which it was made free to frame any constitution it pleased.

    Evolution of the Constitution of India

    Dr. Rajendra Prasad was elected the permanent Chairman of the Constituent Assembly. It met on December 9, 1946. The Muslim League members were not understanding the reason and not agreeing to any viable proposition. The British Authorities were not in a mood to control or convince them. Thus in the initial days, the Constituent Assembly could not deliberate or decide any considerable thing. However, Jawaharlal Nehru moved the Objective Resolution on December 13, 1946 and that was passed on January 22, 1947. It was the expression to the ideals and aspirations of the people of India and so the objectives of the Constitution. These fundamental objectives guided the drafting members in framing a rulebook for the governance of the new nation. This ultimately became the very significant preamble of the Constitution of India.

    After the Independence the Drafting Committee was appointed by the Constituent Assembly in accordance with the decisions on the CA on the reports made by the various Committees. Dr. B.R. Ambedkar was appointed the chairman of the Drafting Committee consisting of Sir Alladi Krishnaswamy Iyer, K.M. Munshi, T.T. Krishnamachari, and Gopalaswami Ayyangar. Sir B.N.Rau prepared the original Draft on which the work of the committee was based. Several eminent personalities were elected to the Constituent Assembly through the indirect method of elections from the members of the Provincial legislatures. Infact, no prominent personality of the country was left out of the Assembly. The members include Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad, Gopalaswami Ayyangar, Govind Ballabh Pant, Abdul Gaffar Khan, T.T.Krishnamachary, Alladi Krishnaswami Ayyar, H.N. Kunzu, H.S. Gaur, K.V.Shah, Masani, Acharya Kripalani, Liaquat Ali Khan, Khwaza Nazimuddeen, Sir Feroze Khan Noon, Suhrawardy, Sir Zafarullah Khan, Dr. Sachchidananda Sinha. Except Gandhi and Jinna almost all prominent public figures figured in this August body. They were elected on a limited franchise. But they were also elected on adult franchise in the first general elections held in 1952.

    The draft Constitution was published in January 1948 and the people of India were given 8 months to discuss it and suggest changes. On November 4, 1948, the general discussions on the draft commenced in the Constituent Assembly and continued for five days. Then there was a thorough discussion clause by clause for about 32 days. As many as 7635 amendments were proposed and 2473 were actually discussed before a third reading was given for another 12 days. The Constitution of India was adopted and signed by the Chairman Dr Rajendra Prasad on November 26, 1949. The draft was considered for 114 days and the Constituent Assembly sat for 2 years 11 months and 18 days. Initially some important Articles came into existence, but the entire Constitution came into force from January 26, 1950.

    There is a criticism that the Constitution would have been adopted by means of a referendum as was done in Ireland. Several old members of the Constituent Assembly were elected to either Parliament or State Assemblies vindicating their contribution to the drafting the Constitution and accepting the principles enshrined therein.

    Glanville Austin wrote, With the adoption of the Constitution by the members of the Constituent Assembly on November 26, 1949, India became the largest democracy in the world. By this act of strength and will, Assembly members began what was perhaps the greatest political venture since that originated in Philadelphia in 1787.

    Self-Government and Equality

    A reference to the history of British rule and Indian Independence struggle provide basic idea of self-governance that emerged into a people's participative democracy. The last em-peror of Moghul dynasty did not mind to delegate the civil administration authority to the East India Company, which was the first historic blunder that paved the way for the Com-pany rule. The merchants who came for tea and other such things were granted not only the business rights but the revenue power to collect their dues from the clients. After some years the Company also could bargain power of administering justice within its colony and started applying the law of their own developing islands of their own sovereignty in India. This means the power of governance and the civil administration. Then imperialistic in-terests improved making it a sovereign with active support of the British Crown. When the officers of the company looted the innocent people and cheated the company too, the Brit-ish Administrators realized that it was no longer good to leave the Indian nation in the hands of company and conveniently took over the reigns of governance. It encouraged the independent princely states if the princes subjugate to British, and if not, they won them over in battles fought by Indian born Crown soldiers backed by English captains.

    Till 1947 they tried to create several states within India and gave them all courage to opt out of acceding to Indian Union apart from inciting communal dissentions. Unification of scattered Indian states within the sub-continent was Herculean task, which made the present Indian Union possible after a violent partition into three pieces. The framers of the Constitution intended to secure the hard-won freedom with integrity and preferred a strong union within a federation, which otherwise appear contradictory. Mahatma Gandhi wrote in January 1922 under the caption 'Independence in his weekly, Young India": Swaraj, therefore will not be a free gift of the British Parliament. It will be expressed through an Act of Parliament is true. But it will be merely a courteous ratification of the declared wish of the people of India. This statement clarifies the doubts about 'independent' origin of Independence of India, if any.

    The Task

    The Constituent Assembly became sovereign body after Indian Independence Act, 1947 was enacted and it was freed from limitations and restrictions imposed by British Parliament earlier under different Acts and plans. The sole task of the Constituent Assembly was framing of the Constitution for Independent India. The search for providing a legal frame and incorporating important systems relevant to India began. The framers looked forward to international documents, progressive democratic constitutions, and constitutional doctrines prevailing in Britain.

    It can be said in one word, what was finally adopted by the framers was British form of Government adapted to a Federal Constitution, as stated by the authority on the Constitutional Law of India, H.M. Seervai.

    18 Indian Polity

    The British has an unwritten unitary Constitution based on two fundamental doctrines:

    Doctrine of supremacy of the Parliament

    Cabinet form of Government with a Monarch as its head

    What the framers drew from UK was the Westminster model of cabinet Government as the system to govern India, according to Supreme Court. This model increasingly demands a high standard of character and conduct from members of Legislative, Judiciary and higher Civil Service.

    Two world wars and consequential trials of war criminals before India achieved Independence marked the international scene. The horrendous thought of extermination of millions of people in gas chambers revealed in Nuremberg trials, war crimes, crimes against humanity, inhuman and barbaric violence over the civil population during wars and civil strife in partition which left a permanent scar reminded the humanity of the need for human life and dignity. Cruelties and infamies during Nazi regime influenced making of the Constitution. Part III with Fundamental rights was generated out of such human suffering and inspired by the Universal Declaration of Human Rights. Fundamental Rights were not included in earlier Constitution i.e., the Government of India Act 1935, because the British parliament was skeptical about the necessity of enshrining Fundamental Rights. The rights declared by UN were not enforceable.

    While incorporation of fundamental rights is significant aspect of the new Constitution, the framers deliberated a lot in importing the concept of federalism with changes suitable to Indian circumstances and diversity in unity, rather than unity in diversity. Federalism as a basic philosophy is accepted and provided in the Indian Constitution. The Cooperative Federalism, which is how the character of Indian Constitution was described, has evolved from conflicting situations and controversial background recorded by the history.

    Constitution-making Processes

    The role of a constitution

    An understanding of the role of a constitution is critical to designing the process for making it. And the process is not only for making the constitution but for generating or creating the environment, promoting the knowledge, and facilitating the public participation that are conducive to a good constitution and to the prospects for implementing it. We therefore begin with a short discussion of the importance and role of the constitution.

    Increase in Constitutions

    There has been much concern with constitutions and constitution-making in the last three to four decades. The world order has changed a great deal in this time; the final mopping-up of colonialism, with the emergence of new states, the end of military regimes, the collapse of communism, and efforts to end civil conflicts, particularly in multiethnic states, have all contributed to the production of constitutions. The variety of contexts in which constitutions have been made shows that the primary purposes a constitution serves

    vary considerably: nationbuilding as a new state emerges; the consolidation of democracy as the military retires to the barracks or authoritarian presidents are deposed; liberalism and the creation of private markets with the end of communism; peace and cooperation among communities to end internal conflicts. These purposes determine the orientation of the constitution, and often also the process by which it is made.

    Constitutions are dependent on national contexts in another significant way. The conception and understanding of, and therefore the respect for, constitutions vary, depending in considerable part on national history and the reliance on and respect for law as a key mode of organizing society and state. So the terms constitution and constitutionalism do not always have the same meaning or impact in all countries.

    Importance of, but Difficulty in Implementing,Constitutions

    A new constitution can take root easily if the country has a commitment to and the infrastructure necessary for the rule of law. But other social and political orders of authority may compete with it where charismatic politics or the tradition of the ‘strongman’ prevails, where high authority is ascribed to religious or customary leaders, or where society is closely regulated by social norms, institutions, and hierarchies. In a society that is largely homogenous, with common values and aspirations, and with members who have been part of the same state for a long period, constitutional reform is relatively easy, but not particularly critical (for example, consider the reform of the governmental system in Finland in 2000). Such a country may indeed be able to dispense with, at least, a formal constitution (as is, or at least until recently was, the case in Great Britain and New Zealand) . A state that has several communities with different languages, religions, or modes of social organization is less able to rely on common values and social institutions for the regulation of society. Instead it may have to depend in part on the values, aspirations, rules, institutions, and procedures incorporated in the constitution—and this is not easy, as old loyalties and habits persist but also take on new political significance.

    Sometimes the provisions of the constitution to protect the rights of the people, promote constitutional values of equality and social justice, and ensure the integrity and the accountability of the government fail. One reason is that the state in many developing, and indeed some developed, countries is the principal means by which ministers, bureaucrats, and others with special access to the state accumulate illegal wealth, give state jobs and contracts to relatives and friends, and protect themselves from due process of the law (by impunity, bribery, or intimidating the judiciary). Even when new institutions to promote the accountability of state organs or fight corruption or protect citizens’ rights are established (as they are in many new constitutions), they are corrupted and often rendered ineffective by ministers, bureaucrats, and tycoons.

    A particular difficulty in implementation arises with regard to constitutions that are made in conflict or postconflict situations. They are made under considerable pressure or even coercion, often from powerful Western states, and assume demilitarization, the establishment of consensual institutions and orderly state processes, and an end to violence. But rarely do the antagonisms and the armed forces that led to conflict end, nor does the cease-fire last long. A particular focus of this handbook is constitution-making in conflict situations.

    20 Indian Polity

    Constitutions as symbols and manifestos, and as legal rules

    A constitution has several dimensions. A distinguished authority on constitutions, the late Professor Kenneth Wheare, drew a distinction between those who regard a constitution as primarily and almost exclusively a legal document in which, therefore, there is place only for rules of law and for practically nothing else, and those who think of a constitution as a sort of manifesto, a confession of faith, a statement of ideals, a charter of the land (Wheare 1966). Since he wrote this in 1966, the debate over the proper function of constitutions has intensified.

    Constitutions as Contracts among People or Peoples

    Fundamentally, a constitution is the basis for the organization of the state. The state is the mechanism through which a society provides for the exercise of political, administra-tive, and judicial powers in order to ensure law and order, the protection of the rights of the people, and the promotion and regulation of the economy. As the notion of the sovereignty of people has superseded other beliefs about the source of ultimate authority, the constitution has come to be regarded as a contract among the people on how they would like to be gov-erned. In most cases this is a fiction, as the people may have had no substantive role in making, or even influencing the decisions about, the new constitution. However, due to the notion of people’s sovereignty and the fundamental right of the people to participate in public affairs, there is a tendency, indeed a compulsion, to promote people’s participation in con-stitution-making (which is part of the inspiration for this handbook).

    But the idea of a constitution as a social contract derives from another recent development—a contract not among the people to which each individual is a party, but among diverse communities in the state, often relatively new, where the bonds among the different communities are few and weak. Communities decide on the basis for their coexistence, which is then reflected in the constitution, based not only on the relations of the state to citizens but also on its relations to communities, and the relationships of the communities among themselves. In such situations, the constitution sometimes provides for partnerships among the communities in government and other forms of communal power sharing.

    Orientation of New Constitutions

    In this way—and also because of changing understandings and expectations of the functions of the state, which now include public welfare and policies for a just society, the promotion rather than just the protection of rights, honest administration, and a sustainable environment—the scope of the contemporary constitution goes well beyond its older counterpart. That constitution dealt principally with the structures and powers of the state (and often assumed rather than provided the method for electing the legislature or the government). The constitution did not specify policies of the state but left them to be developed by the political process within the framework of the constitution. With the rise of the middle classes in the nineteenth century, some civil rights of citizens (including property) were incorporated in the framework for policy and lawmaking, but for a long time there were no serious restrictions on state power.

    With the increase in the

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