Indian Polity Section-I (Historical Background to Preamble)

September 19, 2018
Category: General Study,Polity

Indian Polity Section-I

Historical Background

  • In 1600, British came to India as traders, named as East India Company which had the exclusive right of trading in India under a charter granted by Queen Elizabeth I.
  • In 1765, Company till now had purely trading functions obtained the Diwani of Bengal Bihar and Orissa. 

till 1858, the East India company made many rule for the direction of the company.

in 1858, the British government ends all the powers of the company.

and by the wake of “Sepoy Mutiny,” the British Crown assumed direct responsibility for the Governance of India.

Company Rule (1773-1858)

Following important acts of the company rule are discussed here

Regulating Act of 1773

>> Changes the Governor of Bengal to Governor-General of Bengal and gives the power to make rules about the company.
First – Lord Warren hasting  

>> Established Supreme Court in Calcutta. 
First – Sir Barnes Peacock

>> Given instructions to servants that don’t make the private trade.

Pitt’s India Act of 1784

distinguish the following functions of the company
Commercial functions & Political functions 

>> for commercial function appointed Court of director
>> for political functions appointed Board of director

Charter Act of 1833

>> Changes the governor-general of Bengal to governor-general of India and gives all civil and military powers. 
Charter Act of 1853 
First – Lord William Bentinck

>> Ended all the commercial functions of the company.

>> Introduced but not applicable anyone can take a stand on any post through competitive exams.

Charter Act of 1853

>> Powers of the governor-general of India separates into two 
Legislative Council
Executive Council.

>> By competitive exam, anyone can 
Work in Company 
Work in Civil Services

Crown Rule (1858-1947)

Following important acts of the company rule are discussed here

Crown Rule

Government of India Act 1858

1.    British Crown decided to assume sovereignty over India from the East India Company in an apparent consequence of the Revolt of 1857, described as an armed sepoy mutiny by the British historians and remembered as the First War of Independence by the Indians.

2.    The first statute for the governance of India, under the direct rule of the British Government, was the Government of India Act, 1858.

3.    It provided for absolute (British) imperial control over India without any popular participation in the administration of the country.

4.    The powers of the crown were to be exercised by the Secretary of State for India, assisted by a council of fifteen members, known as the Council of India.

5.    The country was divided into provinces headed by a Governor or Lieutenant-Governor aided by his Executive Council.

6.    The Provincial Governments had to function under the superintendence, direction and control of the Governor-General in all matters.

7.    All the authority for the governance of India was vested in the Governor-General in Council who was responsible to the Secretary of State.

8.    The Secretary of State was ultimately responsible to the British Parliament.

Government of India  Act 1861

1.    This is an important landmark in the constitutional history of India. By this Act, the powers of the crown were to be exercised by the Secretary of State for India, assisted by a council of fifteen members (known as the Council of India). The Secretary of State, who was responsible to the British Parliament, governed India through the Governor General, assisted by an Executive council.

2.    This Act enabled the Governor General to associate representatives of the Indian people with the work of legislation by nominating them to his expanded council.

3.    This Act provided that the Governor General’s Executive Council should include certain additional non-official members also while transacting legislative business as a Legislative Council. But this Legislative Council was neither representative nor deliberative in any sense.

4.    It decentralised the legislative powers of the Governor General’s Council and vested them in the Governments of Bombay and Madras. 

Government of India Act 1892

1.    The non-official members of the Indian Legislative Council were to be nominated by the Bengal Chamber of Commerce and the Provincial Legislative Councils while the non-official members of the Provincial Councils were to be nominated by certain local bodies such as universities, district boards, municipalities, zamindars etc.

2.    The Councils were to have the power of discussing the Budget and addressing questions to the Executive.

Government of India Act 1909

Reforms recommended by the then Secretary of States for India (Lord Morley) and the Viceroy (Lord Minto) were implemented by the Indian Councils Act, 1909.
The maximum number of additional members of the Indian Legislative Council (Governor-General’s Council) was raised from 16 (under the Act of 1892) to 60 (excluding the Executive Councillors).
The size of Provincial Legislative Councils was enlarged by including elected non-official members so that the official majority was gone.
An element of election
 was also introduced in the Legislative Council at the centre also but here the official majority there was maintained.
The Legislative Councils were empowered to move resolutions on the Budget, and on any matter of public interest, except certain specified subjects, such as the Armed forces, Foreign Affairs and the Indian States.
It provided, for the first time, for separate representation of the Muslim community and thus sowed the. seeds of separatism.

Government of India Act 1919

1.    The then Secretary of State for India Mr. E.S. Montagu and the Governor General Lord Chelmsford formulated proposals for the Government of India Act, 1919.

2.    Responsible Government in the Provinces was to be introduced, without impairing the responsibility of the Governor (through the Governor General), for the administration of the Province, by resorting to device known as ‘Dyarchy’ or dual government.

3.    The subjects of administration were to be divided into two categories Central and Provincial.

4.    Central subjects were those which were exclusively kept under the control of the Central Government.

5.    The provincial subjects were sub-divided into ‘transferred’ and ‘reserved’ subjects.

6.    The ‘transferred subjects’ were to be administered by the Governor with the aid of Ministers responsible to the Legislative Council in which the proportion of elected members was raised to 70 percent.

7.    The ‘reserved subjects’ were to be administered by the Governor and his Executive Council with no responsibility to the Legislature.

8.    The previous Central control over the provinces in administrative, legislative and financial matters was relaxed. Sources of revenue were divided into two categories so that the provinces could run the administration with the revenue raised by the provinces themselves.

9.    The provincial budget was separated from the central budget.

10.    The provincial legislature was empowered to present its own budget and levy its own taxes relating to the provincial sources of revenue.

11.    The Central Legislature, retained power to legislate for the whole country on any subject.

12.    The control of the Governor General over provincial legislation was retained by providing that a Provincial Bill, even though assented to by the Governor, would become law only when assented to also by the Governor General.

13.    The Governor was empowered to reserve a Bill for the consideration of the Governor General if it was related to some specified matters.

14.    The Governor General in Council continued to remain responsible only to the British Parliament through the Secretary of State for India.

15.    The Indian Legislature was made more representative and, for the first time ‘bi-cameral’.

16.    The Upper House was named the Council of State. This was composed of 60 members of whom 34 were elected.

17.    The Lower House was named the Legislative Assembly. This was composed of about 144 members of whom 104 were elected.

18.    The electorates were arranged on a communal and sectional basis, developing the Morley-Minto device further.

19.    The Governor General’s overriding powers in respect of Central legislation were retained as follows : (a) His prior sanction was required to introduce Bills relating to certain matters; (b) he had the power to veto or reserve for consideration of the Crown any Bill passed by the Indian Legislature; (c) he had the converse power of certifying Bill or any grant refused by the Legislature; (d) he could make Ordinances, in case of emergency.

Government of India Act 1935

1.    The Act of 1935 prescribed a federation, taking the Provinces and the Indian States (native states) as units.

2.    It was optional for the Indian States to join the Federation, and since they never joined, the Federation never came into being.

3.    The Act divided legislative powers between the Centre and Provinces.

4.    The executive authority of a Province was also exercised by a Governor on behalf of the Crown and not as a subordinate of the Governor General.

5.    The Governor was required to act with the advice of Ministers responsible to the Legislature.

6.    In certain matters, the Governor was required to act ‘in his discretion’ without ministerial advice and under the control and directions of the Governor General, and, through him, of the Secretary of State.

7.    The executive authority of the Centre was vested in the Governor General (on behalf of the Crown).

8.    Counsellors or Council of Ministers responsible to the Legislature was not appointed although such provisions existed in the Act of 1935.

9.    The Central Legislature was bi-cameral, consisting of the Federal Assembly and the Council of State.

10.    In six provinces, the legislature was bi-cameral, comprising a Legislative Assembly and a Legislative Council. In other provinces, the Legislature was uni-cameral.

11.    Apart from the Governor General’s power of veto, a Bill passed by the Central Legislature was also subject to veto by the Crown.

12.    The Governor General could prevent discussion in the Legislature and suspend the proceedings on any Bill if he was satisfied that it would affect the discharge of his special responsibilities.

13.    The Governor General had independent powers of legislation, concurrently with those of the Legislature.

14.    On some subjects no bill or amendment could be introduced in the* Legislature without the Govemor-General’s previous sanction.

15.    A three-fold division in the Act of 1935— There was a Federal List over which the Federal Legislature had exclusive powers of legislation. There was a Provincial List of matters over which the Provincial Legislature had exclusive jurisdiction. There was a Concurrent List also over which both the Federal and Provincial Legislature had competence.

16.    The Governor-General was empowered to authorise either the Federal or the Provincial Legislature to enact a law with respect to any matter which was not enumerated in the above noted Legislative Lists.

17.    Dominion Status, which was promised by the Simon Commission in 1929, was not conferred by the Government of India Act, 1935.

Indian independence Act 1947

1.    In pursuance of this Act, the Government of India Act, 1935, was amended by the Adaptation Orders, both in India and Pakistan, for setting up an interim Constituent Assembly to draw up the future Constitution of the country.

2.    From the 15th August, 1947 India ceased to be a Dependency, and the suzerainty of the British Crown over the Indian States and the treaty relations with Tribal Areas lapsed from that date.

3.    The office of the Secretary of State for India was abolished.

4.    The Governor-General and the Governors lost extraordinary powers of legislations to compete with the Legislature.

5.    The Central Legislature of India, composed of the Legislative Assembly and the Council of States, ceased to exist on August 14, 1947.

6.    The Constituent Assembly itself was to function also as the Central Legislature with complete sovereignty.

Commission, Mission and Plan

Simon Commission

This commission, headed by Sir John Simon, constituted in 1927 to inquire into the working of the Act of 1919, placed its report in 1930.
The report was examined by the British Parliament and the Government of India Bill was drafted accordingly.

Cripps Mission

1.    In March 1942, Sir Stafford Cripps, a member of the British cabinet came with a. draft declaration on the proposals of the British Government.

2.    These proposals were to be adopted at the end of the Second World War provided the Congress and the Muslim League could accept them.

3.    According to the proposals

1.  The Constitution of India was to be framed by an elected Constituent Assembly by the Indian people.

2.  The Constitution should give India Dominion Status.

3.  There should be one Indian Union comprising all the Provinces and the Indian States;

4.  Any Province (or Indian State) not accepting the Constitution would be free to retain its constitutional position existing at that time and with such non-acceding Provinces the British Government could enter into separate Constitutional arrangements.

Cabinet Mission Plan

1.    In March 1946, Lord Attlee sent a Cabinet Mission to India consisting of three Cabinet Ministers, namely Lord Pethick Lawrence, Sir Stafford Cripps and Mr A.V. Alexander.

2.    The object of the Mission was to help India achieve its independence as early as possible and to set up a Constituent Assembly.

3.    The Cabinet Mission rejected the claim for a separate Constituent Assembly and a separate State for the Muslim.

4.    According to Cabinet Mission Plan, there was to be a Union of India, comprising both British India and the States, and having jurisdiction over the subjects of Foreign Affairs, Defence and Communication. All residuary powers were to be vested in the Provinces and the States.

5.    The Union was to have an Executive and a Legislature consisting of representatives of the Provinces and the States.

6.    Any decision involving a major communal issue in the legislature was to require a majority support of representatives of each of the two major communities present and voting as well as a majority of all the members present and voting.

7.    The provinces could form groups with executives and legislatures, and each group could be competent to determine the provincial subjects.

The Mountbatten Plan

1.    The plan for transfer of power to the Indians and partition of the country was laid down in the Mountbatten Plan.

2.    It was given a formal shape by a statement made by the British Government on 3rd June, 1947.

Making of the Constitution

  • In 1934, the idea of the constituent assembly for India was put forward for the first time by MN Roy.
  • In 1935, Indian National Congress for the first time officially demanded a constituent assembly to frame the constitution of India.
  • In 1938, Pt. Jawaharlal Nehru on behalf of INC declare that the constitution of India must be framed without outside interference by a constituent assembly elected on the basis of adult franchise.
  • In 1942, Sir Stafford Cripps a member of a cabinet came to India with the draft proposal of the British government on the framing of an independent constitution to be adopted after the World War II
  • this proposal was rejected by the Muslim League which wanted India to divide into two autonomous states with two separate constituent assembly.

Constituent Assembly

Composition

In November 1946, buy cabinet mission plan Hindu majority India constituted a constituent assembly having following features

1. Total strength was 389. 296 was from British India and 93 from princely States.

2. Each provinces and princely state where to be allotted seats in proportion to their respective population.
i.e. one seat was to be allotted for every million population.

3. Seats allotted to each British province were to be decided among the three communities Muslim shikhs and all other in proportion to their populations.

Thus as a result,
Constituent assembly was to be a partially elected and partially nominated body.
the members where to be indirectly elected by the members of the provincial assemblies who themselves where elected on a limited franchise.

In 1946, month of July and August gone for the election.
Result of election was from total 296.
286 seats was from Indian National Congress
73 seats Muslim League
15 seats from others.

Working

>> first meeting on 9 December 1946. Muslim League boycotted the meeting. Does only 211 members present on that first day.

>> Dr. Sacchidanand Sinha elected as temporary president of assembly.
later on 11 December 1946

President- Dr. Rajendra Prasad
Vice president- H.C. Mukherjee
Constitutional advisor- Sir B.N. Rao

Sessions

First Session              9-23 December 1946
Second Session         20-25 January 1947
Third Session            28 Apr – 2 May 1947
Fourth Session          14-31 July 1947
Fifth Session              14-30 August 1947
Sixth Session             27 January 1948
Seventh Session        4 November 1948 8 January 1949
Eighth Session          16 May-16 June 1949
Ninth session            30 July 18 September 1949
Tenth Session            6-17 October 1949
Eleventh Session      14-26 November 1949

Functions

1. It ratified the India’s membership of Commonwealth in 1949.
2. It adopted the national flag on by July 1947.
3. It adopted the national anthem on 24 January 1950.
4. It adopted the national song on 24 January 1950.
5. It elected Dr Rajendra Prasad as the first president of India on 24 January 1950.

Committees


Jawaharlal Nehru
Union powers committee Union constitution committee States committee

Dr BR Ambedkar
Drafting committee

Dr Rajendra Prasad
Rules of procedure committee
Steering committee

Sardar Patel
provincial constitution committee
Advisory Committee on fundamental rights, minorities, tribal and excluded areas

Drafting committee

It is set up on 29 August 1947 having 7 members for preparing a draught of the new constitution.

Dr B.R. Ambedkar (chairman) 
N Gopala Swami Ayyangar
Alladi Krishnaswamy Iyer
Dr K M Munshi
Syed Mohammed Sadullah
N madhavarao
TT krishnamachari

Enactment & Enforcement of the Constitution

the motion on draft Constitution was declared as passed on 26 November 1949 and received the signature of the members and the president.

out of a total 299 members of the Assembly, only 284 members were actually present on that day and signed the constitution.

So, the constitution was adopted on 26 November 1949 contained a Preamble 395 articles and 8 schedules.

Some provisions of the Constitution citizenship, elections, provisional Parliament, temporary and transitional provision and short title contained in article
5 6 7 8 9
60
324
366 367
379 380 388
391 392 393
enforced on 26 November 1949 and remaining article on 26 January 1950.

Salient Features of the Constitution

Originally on 26 November 1950 Presently in 2018
One Preamble
XXII Parts covering 1-395 articles.
8 Schedules 
One Preamble
XXII Parts covering 1-395 articles.
12 Schedules
101 Amendments

lengthiest written Constitution
drawn from various sources
blend of rigidity and flexibility 
Federal with unitary bias 
Parliamentary form of Government
synthesis of parliamentary 
Sovereignty and Judicial Supremacy
Integrated and independent Judiciary
Fundamental rights 
DPSP
Fundamental duties 
A secular state 
Universal adult franchise 
Single citizenship
Emergency provision

Sources of Indian Constitution

Government of India act 1935

>> Federal Scheme
>> office of governor
>> Judiciary
>> Public Service Commission
>> Emergency provisions
>> Administrative details

British constitution

>> parliamentary government
>> rule of law
>> legislative procedure
>> Single citizenship
>> Cabinet system
>> Prerogative Writs
>> Parliamentary privileges and bicameralism   

US Constitution

>> fundamental rights
>> Independence of Judiciary
>> Judicial review
>> Impeachment of the President
>> Removal of Supreme Court and High Court Judges
>> Vice president as the ex officio Chairman of Rajya Sabha
>> Preamble

French Constitution

>> Republic and ideals of Liberty
>> Equality and fraternity in the Preamble

Irish Constitution

>> directive principle of State Policy
>> Nomination of members of Rajya Sabha
>> Method of Election of President 

Constitution of Canada

>> Federation with a strong Centre
>> Vesting of residuary power in the
>> Centre appointment of State Governor by Centre
>> Advisory jurisdiction of the supreme court

Australian constitution

>> Concurrent list
>> Freedom of trade
>> Commerce and intercourse
>> Joint sitting of the two houses of Parliament

Russian Constitution

>> Fundamental Duties
>> Ideals of justice in Preamble
>> Five Year Plan

Japanese Constitution

>> Procedure established by law

South Africa constitution

>> election of members of Rajya Sabha
>> Procedure for amendment of the Constitution 

Constitution of Germany

Suspension of fundamental rights during emergency

The preamble of the Constitution

PREAMBLE

 

Amendment in Preamble

In 1976, by 42nd constitutional Amendment act preamble is amended as added three words Socialist, Secular and Integrity.

Keywords in Preamble

1.Sovereign (a self-governing state )
2.Socialist
3.Secular
4.Democratic (Power in the hands of People who are governed, either through direct voting or through elected representatives)
5.Republic
6.Justice
7.Liberty
8.Equality
9.Fraternity (friendship and mutual support within a group)

Significance of Preamble

“Identity card of the constitution” – N. A. Palkhivala

“The preamble to our constitution express is what we had thought we
 dreamed so long” – Sir Alladi Krishnaswamy Iyer

“Horoscope of our constitution” –  K M Munshi

“the Preamble is the most precious part of the Constitution 
it is the soul of the Constitution 
it is a key to the constitution 
it is a jewel set in the constitution and 
it is a proper yardstick by which one can measure the worth of the constitution.”  –  Sir Ernest Barker

In the Kesavananda Bharati Case (1973), Supreme Court accepted that “Preamble is a Part of the Constitution.”

As Preamble is a part of the Constitution, So amended by article 368 but an amendment should not destroy the Basic Structure of the Constitution. 

Amendment of the Constitution

Like any other written constitution, the constitution of India also provides for amendment.

The procedure is neither easy as in Britain nor as difficult as in USA.

In part XX with Article 368 specially made for amendment by the power of parliament.
but in case 1973 Supreme Court ruled that the Parliament cannot amend those provision which forms the “basic structure” of the constitution.

The following have emerged as basic features of the constitution.

  1. Supremacy of the constitution
  2. Sovereign democratic Republican nature of Indian polity
  3. The secular character of the constitution
  4. Federal character of the Constitution
  5. unity and integrity of the Constitution
  6. welfare state
  7. separation of powers between the legislature and the executive and the judiciary
  8. powers of the supreme court under article 32 136 141 and 142
  9. principal of reasonableness
  10. effective access to justice
  11. Limited power of Parliament to amend the constitution
  12. independence of Judiciary
  13. free and fair elections
  14. Principle of equality
  15. Rule of law
  16. Parliamentary system
  17. freedom and dignity of the individual
  18. Judicial review

Samvidhaan – Episode 1/10 of Rajya Sabha tv

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