Constitutional, Administrative and Judicial Development

·       The origin and growth of the Indian Constitution have its roots in Indian history during the British period. 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.

·       The period of historical British Constitutional experiments in India can be divided into two phases:

o   Phase 1- Constitutional experiment during the rule of the East India Company (1773-1857)

o   Phase 2 – Constitutional experiments under the British Crown (1857-1947)

  • v  Constitutional Development – East India Company Rule (1773 – 1857)

From 1757 to 1857, laws were created to regulate the functioning of British East India Company and to help them rule over India. These Acts are mentioned below:

  • Ø  Regulating Act of 1773

The process of Centralization in India was initiated through the Regulating Act of 1773.

§  This is the first Act passed by the British Parliament to control and regulate the affairs of the East India Company in India.

§  As per this Act, the Governor of Bengal was made the Governor-General.

o   Warren Hastings was the first Governor-General of India.

§  This Act made Governors of Bombay and Madras subordinate to the Governor of Bengal.

§  The Governor-General was given the power to make rules and regulations.

§  The Governor-General was assisted by a Council of 4 members.

§  The number of Directors in the Company was fixed at 4.

§  The Governor-General had to follow the orders of the Directors of the Company.

§  Revenue of the company should be reported by The Court of Directors, who were the governing body of the company.

§  A Supreme Court was established at Calcutta in 1774, as per the provisions of Regulating Act 1773, having a Chief Justice and 3 Assistant Judges.

  • Ø  Pitts India Act of 1784

In the Constitutional history of India, this Act brought in many significant changes.

§  As per this Act of 1784, the territories of East India Company was called the “British Possessions in India”

§  A joint Government of British India run by the Crown and Company was established. The government had the ultimate power and authority.

§  A Court of Directors was formed for Commercial Operations and 6 member Board of Control were appointed for Political affairs as per provisions of Pitts India Act 1784.

§  Governor General’s Council was reduced from 4 members to 3 members.

§  Governors Councils were established in Bombay and Madras.

  • Ø  The Act of 1786

§  As per the act Cornwallis wanted to have the powers of both the governor-general and the commander-in-chief. The new Act conceded this demand and also gave him the power.

§  Cornwallis was allowed to override the council’s decision if he owned the responsibility for the decision.

  • Ø  The Charter Act of 1793

§  The Act renewed the Company’s commercial privileges for next 20 years.

§  The royal approval was mandated for the appointment of the governor-general, the governors, and the commander-in-chief.

§  Senior officials of the Company were debarred from leaving India without permission—doing so was treated as resignation.

§  The Company was empowered to give licences to individuals as well as the Company’s employees to trade in India.

§  The revenue administration was separated from the judiciary functions.

§  The Home Government members were to be paid out of Indian revenues which continued up to 1919.

  • Ø  The Charter Act of 1813

§  The Company’s monopoly over trade in India ended.

§  The Company’s shareholders were given a 10.5 per cent dividend on the revenue of India.

§  The Company was to retain the possession of territories and the revenue for 20 years more.

§  Powers of the Board of Control were further enlarged.

§  A sum of one lakh rupees was to be set aside for the revival, promotion and encouragement of literature, learning and science among the natives of India, every year.

§  The regulations made by the Councils of Madras, Bombay and Calcutta were now required to be laid before the British Parliament.

§  Separate accounts were to be kept regarding commercial transactions and territorial revenues.

§  Christian missionaries were also permitted to come to India and preach their religion.

  • Ø  Charter Act of 1833

§  Governor-General of Bengal became the Governor-General of India.

o   Lord William Bentick was the 1st Governor-General of India.

§  East India Company ended as a mere administrative body, it was no longer a commercial body.

§  All restrictions on European immigration and the acquisition of property in India were lifted.

§  The Governor-General was given full control over revenue, civil and military.

§  Indian laws were to be codified and consolidated.

§  No Indian citizen was to be denied employment under the Company on the basis of religion, colour, birth, descent, etc.

§  The administration was urged to take steps to ameliorate the conditions of slaves and to ultimately abolish slavery.

§  Charter Act of 1833 was the final step in the Process of Centralization in India, a process that began with the Regulating Act of 1773.

  • Ø  Charter Act of 1853

§  Civil Service Examination was introduced. It was a competitive examination for recruitment into the civil services.

§  Executive and Legislative functions of the Governor-General were separated.

§  This Act provided for the addition of 6 new members to the Legislative Council, 4 members were appointed by Provisional Governments of Bengal, Bombay, Madras and Agra.

§  As per provisions of Charter Act of 1853 Governor General’s Legislative Council came to be known as the Central Legislative Council.

o    The Central Legislative Council started functioning as a Mini-Parliament. It adopted the same procedures of the British Parliament.

  • v  Constitutional Development – Rule under the British Crown (1857-1947)

This begins the 2nd phase of the Constitutional development under the British Crown.

  • Ø  Government of India Act of 1858

§  Government of India Act of 1858 passed by British Parliament, brought an end to the rule of East India Company. The powers were transferred to the British Crown.

§  The Secretary of State for India was given the powers and duties of the former Court of Directors. He Controlled the Indian Administration through the Viceroy of India.

§  The Secretary of State for India was assisted by the Council of India. This Council had 15 members and it was an advisory body.

§  Governor-General of India was made the Viceroy of India.

o   Lord Canning was the 1st Viceroy of India.

  • Ø  Indian Council Act of 1861

§  Indians were nominated as non-official members for the 1st time in the Legislative Council of Viceroy.

§  Legislative Councils were established in Provinces and Centre.

§  Legislative powers of the Provinces of Bombay and Madras were restored.

§  Legislative Councils were started in the Provinces of Punjab, North-Western Frontier Province (NWFP), Bengal.

  • Ø  Indian Council Act of 1892

§  The size of the Legislative Council was increased.

§  The Legislative Council was given more power.

o   the power to deliberate on the Budget and could pose questions to the Executive.

§  Indirect elections were introduced for the 1st time for the selection of the non-official members.

§  The Principal of Representation was introduced as per provisions given in the Indian Council Act of 1892.

  • Ø  Indian Councils Act, 1909 (Morley Minto Reforms)

§  Indian Councils Act of 1909 is commonly known as Morley Minto Reforms.

§  For the 1st time, Direct elections were introduced for the Legislative Councils.

§  The Central Legislative Council was renamed as the Imperial Legislative Council.

§  The Communal representation system was introduced by giving separate electorate. It was a system where seats were reserved only for Muslims and only Muslims would be polled.

§  For the first time, Indians were appointed to the Executive Council of Viceroy.

o   Satyendra Sinha was the law member.

  • Ø  Government of India Act, 1919 (Montagu Chelmsford Reforms)

§  Government of India Act, 1919 was also known as the Montagu Chelmsford reforms.

§  Bicameralism was introduced for the 1st time consisting of a council of State (Upper House) and a Legislative Assembly (Lower House).

o   Members of each house were to be directly elected.

§  Provincial and Central Subjects were separated.

§  Dyarchy, a scheme of Dual Governance was introduced in the Provincial Subjects, it was divided into Reserved and Transferred.

o   The transferred list included agriculture, health, education, and supervision of the local government. The Transferred list was given to the Government of Ministers answerable to Provincial Council.

o   The reserved list included communications, foreign affairs, defense; this reserved list was under the control of Viceroy.

§  Out of 6 members in Viceroy’s Executive Council, 3 of them were Indians.

§  The Act provided provisions for the establishment of the Public Service Commission in India for the first time.

§  Communal Representation was extended with separate electorates for Christians, Anglo-Indians, Sikhs.

§  The franchise was given to a limited population which was based on people who had taxable income, had property and paid land revenue of Rs 3000.

§  Montagu Chelmsford Reforms made provision for setting up a statutory commission (Simon Commission) at the end of 10 years to look into the working of the Government.

  • Ø  Government of India Act 1935

§  This was the longest and last constitutional measure introduced by British India with 321 articles and 10 schedules. It was the result of multiple round table conferences and a report by the Simon Commission.

§  Bicameralism was introduced in 6 Provinces (Bengal, Bombay, Madras, Assam, Bihar, United Provinces) out of 11 provinces.

§  The Legislature in the provinces were enlarged.

§  As per the Act, the powers were divided into Federal List, Provincial List & Concurrent List.

§  Provincial autonomy was introduced in the Provinces by abolishing the Dyarchy.

§  There was provision for the adoption of Dyarchy at the Centre.

§  Provided provisions for establishing Federal Court (was established in 1937), Reserve Bank of India.

§  There was provision for the establishment of All India Federation consisting of Provinces and the Princely States as units.

§  Due to the length of Government of India Act 1935, it was divided into 2 separate Acts.

Ø  Various other developments took place after the 1935 Act. There was the August Offer of 1940, the Cripps Proposals of 1942, the C.R. Formula of 1944 trying to seek the cooperation of the Muslim League, Wavell Plan of 1945 and the Cabinet Mission. Then came the Mountbatten Plan in 1947 and finally the Indian Independence Act, 1947.

  • v  Evolution of Civil Service in India

The term {sin-quite}Civil Service{sin-quite} refers to the administrative system of the state which is responsible for implementing policies made by the political executive, which constitutes of the elected representatives in a democracy.

§  The need for the civil service was felt soon after the Company acquired territories after the Battles of Plassey (1757) and Buxar (1764).

  • Ø  Roles in the Evolution

§  Warren Hastings, the then Governor-General of Bengal had created the post of District Collector who was made in-charge of collecting land revenue. This post was soon abolished on grounds of excessive concentration of powers and corruption.

§  Lord Cornwallis is usually known as the Father of civil services in India. He had introduced the Covenanted Civil Services and the Uncovenanted Civil Services.

o   The Covenanted Civil Services was created out of the Law of the Company. It was the higher civil services and comprised, almost exclusively, of Europeans who were paid very high salaries.

o   The Uncovenanted Civil Services were the lower civil services and comprised mostly of native-born Indians, and to some extent, Europeans too. They were not paid as high as the Covenanted Civil Services.

§  Charter Act of 1833, provided that no Indian subject be barred from holding any office under the company. This, however, did not alter the structure of British bureaucracy.

o   Until 1853, the Court of Directors had the exclusive right to appoint persons in the Company{sin-quite}s civil services. These appointments were a source of privilege and patronage which the Company held on to very tightly.

§  The Charter Act of 1853, provided for an open competitive examination for the recruitment of civil servants and had deprived the Court of Directors of the power of appointments based on patronage. This was recommended by a committee headed by Lord Macaulay. The first competitive exam was held in 1855.

  • Ø  Civil Service under the Crown{sin-quite}s Rule: After 1857{sin-quite}s revolt

After the Government of India Act of 1858, the higher civil service in India came to be known as the Indian Civil Services (ICS).

§  The Indian Civil Services Act of 1861, provided that certain posts under the Government of India were to be reserved for persons who had been a resident of India for 7 years or more. This paved the way for the entry of Indians into the higher civil services.

o   Satyendra Nath Tagore was the first Indian to get selected in the Indian Civil Services in 1863.

§  The Indian Civil Services Act of 1870 carried the process of Indianisation of civil services forward.

§  Aitchison Committee was appointed by Lord Dufferin to recommend changes in the civil services. The Committee recommended that the Covenanted and Uncovenanted Civil Services should be changed into Imperial, Provincial, and Subordinate civil services.

§  ICS came to be regarded as the steel frame of the British rule in India i.e., it provided the support for maintaining control over the vast territories of the British Empire.

§  With the August Declaration of 1917 by Edwin Montague in the House of Commons, which had promised an increase in the association of Indians in the administration, the proportion of Indians in the civil services began to increase significantly and by 1930s Indians were in majority in the civil services.

§  By 1934, there were seven All India Services including the Indian Forest Service, Indian Police, Indian Political Service etc.

  • Ø  Characteristics of Civil Services at the time

§  It reflected the deep-seated racial prejudice among the British against Indians.

§  Almost all the higher-level posts were reserved for Europeans. Only the low paid jobs were open for Indians.

§  The recruitment process involved examinations that were held in London and involved knowledge of subjects (Greek, Latin, English) alien to Indian natives, as a result, Indian representation in the Services was negligible.

§  In 1860, the maximum age limit was lowered from 23 years to 22 years. This was further lowered to 21 years in 1866 and to 19 in 1878.

  • Ø  Post-Independence Civil Service Development

§  Sardar Vallabhbhai Patel was among the top nationalist leaders who had argued for the continuation of the civil services because he had believed that an organized bureaucracy was essential to ensure the unity and integrity of the newly independent India.

He had also stressed the need for having All India Services such as the IAS, IPS, and IF0S to ensure uniformity in the administrative system throughout the country. This was essential for national unity.

  • Ø  Regulations and Legislation Relating to the Services

§  Recruitment to the civil service was made based on open competitive examination after the passage of Charter Act, 1853.

§  Aitchison Commission had recommended that the minimum and maximum age limits to appear for the exam were to be 19 and 23 respectively.

§  Viscount Lee Commission, set up in 1923, had recommended the creation of a public service commission for the purpose of conducting examinations to recruit the civil servants. Accordingly, a public service commission was set up in 1926.

§  The Government of India Act, 1935 enlarged the powers of the commission and made it a Federal Public Service Commission. After independence, it became the Union Public Service Commission, with constitutional status since 1950.

§  UPSC is empowered to conduct the civil services examination for the purpose of selecting and recommending the candidates to be appointed as civil servants. The exam is based on the model of examination for the erstwhile Imperial Civil Service

§  Kothari Committee of 1976 had recommended a three-stage selection process. A preliminary examination is of objective type with one Optional and General Studies paper each. The main examination is of the subjective type with 9 papers. The final stage is the Personality Test.

§  Satish Chandra Committee of 1989 recommended the introduction of an Essay paper and a greater weightage for the interview (Personality Test).

§  The Hota Commission of 2004 recommended the introduction of an aptitude paper in the preliminary examination.

§  The Civil Services in British India was of immense importance. It was the steel-frame on which British Empire rested. British understood that alien rule in a country can survive only with a heavy hand and the bureaucracy proved useful in this regard. It also offered a lucrative career opportunity that British politicians and officials vied for.

  • v  Evolution of Police System in Modern India

§  Under the Mughal rule there were the faujdars who helped in maintaining law and order, and amils who were basically revenue collectors.

o   In 1770, the institution of the faujdar and amils were abolished by the British.

o   In 1774, Warren Hastings restored the institution of faujdars and asked the zamindars to assist them in suppression of dacoits, violence and disorder.

o   In 1775, faujdar thanas were established in the major towns of large districts and were assisted by several smaller police stations.

§  The kotwal was responsible for maintenance of law and order in the cities under the Mughal.

§  The zamindars were expected to maintain the staff including thanedars for law and order duties and for maintaining peace, as well as dealing with crime and criminals.

§  An account of steady developments in the police system under the British have been given below: -

1791          Cornwallis organised a regular police force to maintain law and order by going back to and modernising the old Indian system of thanas (circles) in a district under a daroga (an Indian) and a superintendent of police (SP) at the head of a district.

He relieved the zamindars of their police duties.

1808          Mayo appointed an SP for each division helped by a number of spies (goyendas).

1814          By an order of the Court of Directors, the appointment of darogas and their subordinates was abolished in all possessions of the Company except in Bengal.

Bentinck (governor-general, 1828-35) abolished the office of the SP. The collector/magistrate was now to head the police force in his jurisdiction and the commissioner in each division was to act as the SP.

The recommendations of the Police Commission (1860) led to the Indian Police Act, 1861. The commission recommended-

? a system of civil constabulary—maintaining the village set-up in the present form (a village watchman maintained by the village) but in direct relationship with the rest of the constabulary.

? inspector-general as the head in a province, deputy inspector-general as the head in a range, and SP as the head in a district.

1902          The Police Commission recommended the establishment of CID (Criminal Investigation Department) in the provinces and a Central Intelligence Bureau at the Centre.

  • v  Military Under the British

§  Prior to the revolt of 1857, there were two separate sets of military forces under the British control, which operated in India.

o   The first set of units, known as the Queen’s army, were the serving troops on duty in India.

o   The other was the Company’s troops—a mixture of European regiments of Britons and Native regiments recruited locally from India but with British officers.

§  The Indian branch of the army was to be used for expansion in Asia and Africa, while the British section was to be used as an army of occupation—the ultimate guarantee of British hold over India.

§  No Indians were allowed in the officer rank, and the highest rank an Indian could reach till 1914 was that of a subedar.

  • v  Development of Judiciary in British India

§  The Judicial System in India was neither adopted proper procedures nor had the proper organisation of the law court from the ancient India to Mughal India.

§  The beginning of Indian codified common law is traced back to 1726 when a Mayor’s Court in Madras, Bombay and Calcutta was established by the East India Company. This was the first sign of Company’s transformation from a trading company to a ruling power with the added flavour of new elements of the Judiciary.

§  The chronological development of the judiciary system during British India has been discussed below: -

1.   Reforms under Warren Hastings (1772-1785 AD)

o   Warren Hasting established, two court for resolving disputes –civil disputes for District Diwani Adalat and criminal disputes for District Fauzdari Adalats.

o   District Diwani Adalat: - It was established in districts to resolve the civil disputes which were placed under the collector. In this court Hindu law was applicable for Hindus and Muslim law for Muslim. If people seek more justice then they can move to Sadar Diwani Adalat which was functioned under a president and two members of Supreme Council.

o   District Fauzdari Adalats: - It was set up to resolve the criminal issues which were placed under an Indian officers assisted by Qazi and Muftis. The entire functioning of this court was administered by the collector. The Muslim law was administered in this court. But the approval of capital punishment and for the acquisition was given by the Sadar Nizamat Adalat which headed by a Deputy Nizam who was assisted by the chief Qazi and Chief Mufti.

o   The formation Supreme Court at Calcutta under the Regulating Act of 1773 AD had original and appellate jurisdiction.

2. Reforms under Cornwallis (1786-1793 AD)

o   Under Cornwallis, the District Fauzadari Court was abolished and Circuit Court was set at Calcutta, Decca, Murshidabad and Patna. It act as a court of appeal for civil as well as criminal cases which was functioned under the European judges.

o   He shifted Sadar Nizamat Adalat to Calcutta and put it under the supervision of Governor-General and the members of Supreme Council who were assisted by Chief Qazi and Chief Mufti.

o   The District Diwani Adalat was renamed as District, City or the Zila Court which was functioned under a district judge.

o   He also established gradation civil courts for both Hindu and Muslim such as Munsiff’s Court under Indian officers, Registrar Court under a European judge, District Court under the district judge, Four Circuit Courts, Sadar Diwani Adalat and King-in-Council. He is known for the establishment of sovereignty of law.

3. Reforms under William Bentinck

o   Under William Bentinck, the four Circuit Courts were abolished and transferred the functions of the abolished court to the collectors under the supervision of the commissioner of revenue and circuit.

o   Sadar Diwani Adalat and Sadar Nizamat Adalat were established at Allahabad.

o   He made the Persian and a Vernacular language for the court proceeding in lower court and made English language as official language for Supreme Court proceeding.

o   During his reign, Law commission (1833) was set up by Macaulay which codified the Indian laws. On the basis of this commission, a civil Procedure Code of 1859, an Indian Penal Code of 1860, and a Criminal Procedure Code of 1861 were prepared.

4.   Later Developments

o   1860 : It was provided that the Europeans can claim no special privileges except in criminal cases, and no judge of an Indian origin could try them.

o   1865 : The Supreme Court and the Sadar Adalats were merged into three High Courts at Calcutta, Bombay and Madras.

o   1935 : The Government of India Act 1935 provided for a Federal Court (set up in 1937) which could settle disputes between governments and could hear limited appeals from the High Courts.

  • Ø  Positive Aspects of Judiciary under the British

? The rule of law was established.

? The codified laws replaced the religious and personal laws of the rulers.

? Even European subjects were brought under the jurisdiction, although in criminal cases, they could be tried by European judges only.

? Government servants were made answerable to the civil courts.

  • Ø  The Negative Aspects
  •  The judicial system became more and more complicated and expensive. The rich could manipulate the system.
  • There was ample scope for false evidence, deceit and chicanery.
  • Dragged out litigation meant delayed justice.
  • Courts became overburdened as litigation increased.

  • Often, the European judges were not familiar with the Indian usage and traditions.

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