Constitution and its types/Constitutional development

Constitution and Types Constitutional Development

Constitution and its types

What is a Constitution?
• A constitution is a basic law of the land which establishes the relations between various organs of the government and also defines the nature and polity of that country. The polity defines the basic structure of law and the rights and obligations of both the state and the citizens.

• On the other hand, the document containing laws and rules which determine and describe the form of the government, the relationship between the citizens and the government, is called a Constitution.

Importance of Constitution:
• To maintain the smooth functioning of modern welfare state, there is a need of a set of codified rules which determines or will determine the form of government, the relationship between the citizens and government in order to sustain and flourish.
• It is the constitution which establishes these relationships and lays down the objectives of the state which it has to achieve. It also describes the rights and duties of the citizens and also limit the powers of the government(s).
• It facilitates the minimal coordination among the members of a society by specifying who has the power to make decisions in a society and also decides how the government will be constituted.
• Thus, a constitution is considered to be the basis for the governance of the country both in terms of goals and objectives as well as their structures and functions.

Functions of a constitution: The constitution whether written or unwritten, is a political structure having several functions:

• Expression of Ideology: It reflects the ideology and philosophy of a nation state. For example: the ideology of Indian Constitution is based on a socialist and secular social system. On the other hand, the U.S.A. follows the ideal of a capitalist -social order.

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

• Organizational framework: It provides organizational framework for the governments. It defines the functions of the 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, quasi-federal 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. An inherent capacity to change according to changing times and needs, help any system to survive and improve.

Types of Constitution:
Broadly speaking, constitution can be of:

Two types based on the nature of document:
• Written: Written in the form of a book or a series of documents combined in the form of a book which is consciously framed and enacted. It is formulated and enacted by a constituent assembly or a council or a legislature whose members are elected by the people for whom the constitution is being written.

• For Example: Indian Constitution (the longest written constitution), Constitution of America etc.

• Unwritten: It is not committed of systematic writing by a particular constituent assembly, rather, evolved or developed due to a number of customs, usages, parliamentary acts and traditions.
• For example, the British constitution has evolved on the basis of all these over a period of many centuries.

Two types based on the nature of polity:
• Unitary: Establishes single authority without dividing powers among separate entities. However, there may be other legislative and executive authorities under a unitary constitution but they enjoy only delegated powers and not constitutionally granted powers.

• For Example: British Constitution which only recognizes the British Parliament and the central government without having any state type legislatures or government.

• Federal: It shares powers between two distinct entities namely, federal or the union government and the state governments without having inferior to each other as both derive its powers directly from the constitution.
• Countries with large population, geographical size, social, cultural and linguistic diversities generally adopt federal form of constitution to allow autonomy of governance to the constituent states. For example, the US, Canadian, Australian Constitutions are federal constitutions.

Constitutional development

The origin and growth of the Indian Constitution has its roots in Indian history during the British period. 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. None of them, however satisfied Indian aspirations mainly because they were imposed by the alien rulers.

Regulating Act, 1773: (i) First attempt by the British Parliament to regulate the affairs of the Company; (ii) Provided for centralisation of Administration of Company’s territories in India; (iii) Governor of Bengal became Governor General for all British territories in India; (iv) Governor General and Council of 4 members was appointed for Bengal; (v) Court of Directors of 24 members was to be elected for 4 years, with one-fourth members retiring every year; (vi) Bombay (Maharashtra) and Madras (Tamil Nadu) Presidency subordinated to Bengal Presidency; (vii) Supreme Court to be set up at Calcutta; and (viii) Company’s Servants forbidden from accepting bribes or doing private trade.

Amending Act, 1781: (i) Settled the question of jurisdiction of Supreme Court; and (ii) Supreme Court to apply personal law of the defendant.

Pitt’s India Act, 1784: (i) Transferred the Indian affairs of the Company into the hands of the British Government; (ii) Abolished dual system of governance. Court of Directors consisting of 24 members to look after commercial functions; (iii) Board of Control consisting of 6 Parliamentary Commissioners was constituted to control civil, military and revenue affairs of India; (iv) Court of Directors had to comply with the orders and directions of the Board; (v) Strength of Governor-General’s Council reduced to 3; (vi) Control of Governor-General-in-Council on Bombay and Madras Presidency enlarged and made effective; and (vii) First effective substitution of Parliamentary Control over East India Company.

Act of 1786: Governor-General to be the Commander-in-Chief of Indian Forces.

Charter Act, 1793: (i) Company given monopoly of trade for 20 more years (ii) Expenses and salaries of the Board of Control to be charged on Indian Revenue; and (iii) Governor-General could over-ride his Council.

Charter Act, 1813: (i) Company deprived of its trade monopoly in India except in tea and opium trade with China; (ii) All Englishmen could trade with India subject to certain restrictions; (iii) Rules and procedures made for use of Indian revenue; and (iv) A sum of Rs. 1 lakh earmarked annually for education.

Charter Act, 1833: (i) End of Company’s trade monopoly even in tea and opium with China; (ii) Company was asked to close its business at the earliest; (iii) Governor-General of Bengal to be Governor-General of India; (iv) Govt. of Madras and Bombay deprived of legislative powers; (v) A fourth member, Law Member, added to Council of Governor-General; (vi) Government Service was thrown open to the people of India; (viii) All laws made by Governor General Council, henceforth to be known Acts and ‘not regulations; (viii) Provision made for appointment of Law Commission for condifisation of laws; and (ix) Slavery was to be abolished.

Charter Act, 1853: (i) Expanded life of the Company for an unspread period; (ii) For the first time a separate legislative machinery consisting of 12-member Legislative Council was created; (iii) Law member was made a full member of the Executive Council of the Governor-General. Six additional members added for legislative purposes; and (iv) recruitment of Civil Services was based on open annual competitive examination.

Government of India Act, 1858: (i) Rule of company in India ended and that of the Crown began; (ii) System of double government ended. Court of Directors and Board of Control abolished; (iii) Secretary of State for India was created. He was assisted by a 15-member Council (India Council). He was to exercise the powers of the Crown; (iv) Secretary of State to be a member of the British Cabinet; (v) Secretary of State governed India through the Governor General; (vi) Governor-General was to be called the Viceroy and was the direct representative of the Crown in India; and (vii) A unitary and highly-centralised administrative structure was created.

Indian Councils Act, 1861: (i) Policy of Association of Indians in legislation started; (ii) Portfolio system was introduced; (iii) For legislation; Executive Council of Viceroy was enlarged by 6 to 12 members composed of half non-official members. Thus foundations of Indian Legislature was laid down; (iv) Legislative powers of the Presidency Government deprived in 1833 were restored; and (v) Viceroy could issue ordinances in case of emergency.

Indian Councils Act, 1892: (i) 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, while the non-official members of the Provincial Council were to be nominated be certain local bodies such as universities, district boards, municipalities. Beginning of representative system in India; and (ii) Council to have the power to discuss budget and of addressing questions to the Executive.

Indian Councils Act, 1909: Also known as the Morley-Minto Reforms — (i) Introduced for the first time, an element of elections to the Legislative Councils; (ii) At the Provincial Legislative Councils, non-official members to be in majority; and (iii) Introduction of separate electorates (for Muslims).

Government of India Act, 1919: Popularly known as Montague-Chelmsford Reforms — (i) The idea of “Responsible Government” stressed; (ii) Office of the High Commissioner of India was created in London; (iii) Indian Legislature became “bicameral” for the first time; (iv) communal representation extended to Sikhs; (v) Secretary of State for India now to be paid from British revenue; and (vi) Diarchy in provinces by dividing subjects of administration between official members and elected members.

Dyarchy: It meant Dual Government. The Provincial subject of administration were to be divided into two categories — “Transferred” and “Reserved” subjects. 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 to the Legislature.

Devolution 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.

Government of India Act, 1935: (i) 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 part of the scheme could not be implemented; (ii) Dyarchy was introduced at the Centre. Provincial autonomy replaced Diarchy in Provinces. They were granted separate legal identity. Responsible governments were set up in States under Prime (Chief) Ministers elected by Legislatures; (iii) Governor had special responsibilities (or discretion) in several matters; (iv) It made a three-fold division of powers — Federal, Provincial and Concurrent Lists. Residuary powers were to be with the Governor-General; (v) The India Council of Secretary of State for India was abolished; (vi) Principle of separate electorate was extended further to include Anglo-Indians Indian Christians and Europeans also; and (vii) A Federal Court was to be constituted with a Chief Justice and 10 other Judges. This was set up in 1937.

Indian Independence Act, 1947: This Act did not lay down any provision for the administration of India but merely stated that from the “appointed date (Aug. 15, 1947), in place of India as defined in the Government of India Act, 1935, there would be two independent Dominions to be known as “India” and Pakistan”, and the Constituent Assembly of each Dominion would have unlimited powers to frame and adopt any Constitution, and to repeal any Act of the British Parliament.

The idea of a Constituent Assembly for India was put forward for the first time by M. N. Roy.
The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan.
The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were to be allotted to British India and 93 seats to the Princely States. Out of 296 seats allotted to the British India, 292 members were to be drawn from the eleven governors’ provinces and four from the four chief commissioners’ provinces, one from each.
Each province and princely state (or group of states in case of small states) were to be allotted seats in proportion to their respective population. Roughly, one seat was to be, allotted for every million population.
Seats allocated to each British province were to be decided among the three principal communities-Muslims, Sikhs and general (all except Muslims and Sikhs), in proportion to their population.
The representatives of each community were to be elected by members of that community in the provincial legislative assembly and voting was to be by the method of proportional representation by means of single transferable vote.
The representatives of princely states were to be nominated by the heads of the princely states.
It is thus clear that the Constituent Assembly was to be a partly elected and partly nominated body. Moreover, the members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise.

Drafting Committee

It consisted of seven members. They were:
1. Dr B R Ambedkar (Chairman)
2. N Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. Dr. K M Munshi
5. Syed Mohammad Saadullah
6. N Madhava Rau (He replaced B L Mitter who resigned due to ill-health)
7. T T Krishnamachari (He replaced D P Khaitan who died in 1948)

Dr B R Ambedkar introduced the final draft of the Constitution in the Assembly on November 4, 1948 (first reading). The Assembly had a general discussion on it for five days (till November 9, 1948).

The second reading (clause by clause consideration) started on November 15, 1948 and ended on October 17, 1949. During this stage, as many as 7653 amendments were proposed and 2473 were actually discussed in the Assembly.

The third reading of the draft started on November 14, 1949.

The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles and 8 Schedules.