historical evolution1

8/22/2019 Historical Evolution1

1/36

Jamia Milia Islamia University

Assignment on , Crime and Economic

Conditions

Submitted to :- Prof. Rose Verghese

Submitted by :-

MOhd. Faheem

Class :-

LL.M. 1st Sem.

Roll

No.:- 05


2/36

ACKNOWLEDGEMENT

I express deep regards and sincere gratitude, ineptness and

thanks to my project guide Prof. Rose Vergesh, for her

valuable guidance, constant encouragement, Moral support,

valuable suggestions and inspiration during the course of the

present project. My heartily thanks for her keen interest, she

showed in the project and the time spent by her on the

discussion in spite of her hectic schedule.

Similar thanks to staff members of Law Faculty who helped me

in completion of this work.

Finally, I acknowledge the blessings of my family members,

who has been a constant source of inspiration to me.

Submitted by

(MOhd.Faheem Khan)

LL.M. 1st Sem


3/36

1. What is the Constitutionalgovernment

2. Development Of ConstitutionalismAn Historical ProcessOf The Rise Of Constitutional State

Greek Period :-

Medieval Period:-

During the Renaissance Period

Constitutionalism in England

Development of constitutionl

government in U.S.A :-

Roman Period: -After The First World War:-

After Second World War:-

3. Indian Perspective

Evolution Of Constitutional

Government In India

1600 to 1772, The East India

Company :-

1773 To 1832: Regulating Act1773:-

4. The Charter Act of 1813: - 1833 To 1856: Constitutional

Changes:-5. The Act Of 1853

6. 1857 To 1918: -


4/36

7. 1919 To 1949: The Government OfIndia Act:-

8. The Montague ChelmsFord Refor

9. Simon Commision:

10. Government Of India Act, 1935

11. The Main Provision Of The Act AreStated Below

Statutory division of Power:-

Proposed All India Federation

Governor Provinces:-

The Federal Court:-

Subsequent Event:-

The Crips Mission (1942):-

Cabinet Mission 1946: -

12. conclusion:-


5/36

Historical Evolutionof

Constitutional Government

What is the Constitutional government

As define by the Wheare, Constitutional

government means something more than a

government according to the terms of the

Constitution . I t means government according to

rule as opposed to arb it rary government. I t means

government l imited by the terms of a Consti tut ion

not government l im ited only by the des ires and

capacit ies of those who exercise power.

From the above, It may be inferred that a

const itutional government is one that operate within

a universe and pos i t ive rest ra ints , I t i s however a

d if fe rent mat ter that the degree o f res traint may

vary f rom one po l i t ica l system to another . That is

whi le one s ta te may b const itut iona l by v ir tue o f

being set in a universe of more restraints, the other

may be of the same category by virtue of beings set

in a universe of few restraints. The charge of being

unconst itut ional can be leveled against a state only

if i t has no restraints as speeched by Fr iedr ich in his

Paradigm.

In order to have a proper understanding of the term

const it ut iona li sm . We must f ir st understand the


6/36

meaning of terms l ike constitution and constitutional

government . A const itu tion may be said t o be a

col lect ion of pr inciples according to which the power

of the government, the r ight of the governed and the

relation between the two are adjusted.

In other word s, I t may b e d escri bed as a f rame

poli tical soc iety organized through and by law. In

which law has established permanent institution with

recognized functions and definite r ights.

Accord ing to Wheare The word co ns ti tu ti on i s

commonly used a t least two sense in an ord inary

discussion of poli t ica l af fa irs. F i rst of a ll i t is used

to descr ibed the whole system of a government of a

country, the col lect ion of rules which establ ish and

regulate or govern the government.

These rules are partly legal, in the sense that the

court of law wil l recognize and apply term and partly

non legal or extra legal tak ing the form of usages,

understand ing , customs or convent ion which court

do not recognize as law but which are not less

effect ive in regulat ing the government than the rule

of law str ict ly cal led. In most countr ies of the world

the sys tem o f g over nment i s compr ised of th is

mixture of legal and non legal rules and it is

poss ib le to speak of th is co l lect ion of ru les as the

constitution.


7/36


8/36

Development Of Constitutionalism

An Histor ical Process Of The Rise Of Const i tut ional

State

The rise of a constitutional state is essential ly an

histor ical process where chief mater ia l is contained

in the h istory o f po l i t ica l inst i tut ions coup led wi th

the h is to ry o f western pol it ical i deas r ight f rom

ancient to modern t imes. The history of development

of const i tut ional ism is thus a history of the growth

o f pol it ical i ns ti tu tions tha t had f ir st impor tant

mani festat ion in the so il s o f anc ient Greece and

Rome and there after they witnessed their r ise and

growth in the middle and modern ages, s ide by s ide

re fer ence shou ld be mad e to the id eas o f g rea t

pol it ical thinkers who either drew st imulus from the

development of pol it ical inst itut ions, or who thought

in term o f hav ing par ti cu la r form o f pol it y under

ideal or obtainable condit ions. The movement is st i l l

go ing on w i th a v iew to seek the improvement o f

pol it i ca l i ns ti tu tion in the d irec tion o f hav ing a

legi t imate const itut ion oreder . We may study the

h is torica l evo lution o f const itut iona l government

under these heads.:-

1) Greek Period :- The Greeks occupy the f irst

place in this direction who had polit ical

separat ism as a marked character ist ic of their

l i fe . They had c i ty state system in which the


9/36

benefits of cit izenship were open to the

f reedo m on ly. Mos t o f the c ity sta tes had

direct democrat ic system through Sparta was

under the ru le o f mi l i tary Junta . The Greeks,

however had pecul iar nat ion about the state

and the ro le o f the peop le (c i t izen) there in .

As strong says: A Greek cit izen was actual ly

and in person a soldier, a Judge and a member

of the govern ing assembly . The state to the

Greek was his whole scheme of associat ion, a

city where in al l his needs, mater ial and

spiritual, were satisf ied. The Greek

philosophers l ike Plato and Aristot le, however

stud ied the care of po li t ica l inst i tut ion f rom

ethi cal point of v iew wi th the resul t that

pol itical constitutionalism become a

handmade o f normative and moral nat ions .

The ideal state of Plato under the al l powerful

rule of non corrupt and in corrupts

phi losopher k ing looked l ike an Utopia while

the best pract icable state of Ar istot le having

pol ity s igni fied a type o f m iddle c lass rule

str ik ing a balance between unreal izable or at

least t ransitory best and into lerable worst . I t

is true that while Plato though t in terms of the

ideal s ta te o f a superman and A ri stot le in

terms o f a best p ract icab le s ta te under the

super science of law, both fai led to look


10/36

beyond the hor i zon o f a c i ty w i th the resu l t

that Greek consti tut iona lism fai led to move

with the pace of changing condit ions of

history. As Barker says: Neither the

enl ightened monarch which Plato had

suggested, nor the mediat ing middle c lass on

which Ar istot le set his hopes could avai l to set

the city state; and to be rescued from itself i t

had to love its cherished independence.

2) Roman Period: - A great change occurred

after the ecl ipse of the c i ty state system and

the establ ishment of a great empire under the

Romans. The intel lectua l l ife become more

d i ffuse and driven into d i fferent channels.

Men retreated with themselves ethics become

independent of pol it ics society state ceased to

be equiva lent term and the ind iv idual , apar t

f rom the s ta te become the chief ob ject o f

contemplat ion. C .H. Mol lwain thus observes

that there was gradual ly emerging an

ind ividual who was something more than a

c it izen, a soc ie ty tha t was wider than any

possible pol it ical uni t and a humanity more

extended than any single race, individuals and

cosmopol i tanism are the most marked of the

new er aspec t of p ol it i cal p hi lo sop hy. The

imperial rulers of Rome evolved their

consti tut ion as a determinate inst rument o f


11/36

Govt. a mass o f p recedent car ried in mens

memor ies o r recorded in wri ting o f d ic ta o f

l ayers or s ta tement o f customs o f u sag es

understanding and bel ief upon the methods of

government together with a number of

s ta tu tes w ith the termina tion o f monarchy

about 500 B .C . there emerged the Repub lic

that had a mixed consti tut ion. The of fice o f

counci ls (of whom two were elected annual ly

each with a r ight to veto another) represented

the monarchial e lement o f t he termina ted

system; the senate (a small body w ith vast

legislat ive power) represented the ar istocrat ic

e lement; the democratic e lement existed in

the meeting o f the people in three sor ts o f

convent ions accord ing to the d iv is ion of land

o r peop le ( cu ri es , cen tur ie s, tr ib es ). It i s

d i f fe rent th ing that in cur ie o f t ime the era

i rrespons ib le autoc racy came to p reva il i n

Ro me when the o ffi ce of the emp er or was

revived. Despite this, Roman const itut ionalism

made certain important contribution to

development o f this concept . They cod if ied

their law and laid down the principle of

representative government that came to be

the most celebrated principles of

const itutional ism. The two pronged conception

of the legal sovereignty of the emperor . That


12/36

his p leasure had the force of law and that his

p owers w ere u lt imate ly de ri ved fro m the

people-persisted for many centuries and

inf luenced through out the med ieva l per iod

the v iews on the relat ions between the rulers

and the ruled.

3) Medieval Period:- A great change took place

after d isintegration of the Roman empire in

the 6 t h century A.D. and its substitution by the

establ ishment of a feudal states.

The state of incessant warfare. Final ly gave

way to innumerab le scattered pol it ical and

economic sovereignties not on a nat ional and

ter ri to rial but on l ocal l evel s due to which

Europe become a d ismal swamp of ind iv idual

feudal allegiances. The ere of feudal ism

represented a phase of transit ion,

decentral iza tion and d is in tegrat ion. F rom

pol i t ica l point of v iew, i t exhib ited an age of

statelessness s ince every lord could conduct

warfare or regulate commerce, or coin

currency, or d ischarge jud ic ia l responsib i l i ty .

f rom an economic point o f v iew, i t meant a

state of society in which al l or a great part of

pub li c r ight dut ies inext ricably interwoven

wi th the tenure o f land , in wh ich the who le

g ov ernmental system fi nancial , mi li tary,

judicial is part of the law of private property


13/36

curiously universal ism came to be the keynote

of th is era of t ransit ion decentral izat ion and

disintegrat ion as a result of the spread of the

rel ig ion of Christ ianity with the conversion on

more and more people to new rel ig ion.

Chr istendom came into being and b ib lical law

took the place of Roman law. A napoy

synthes is occur red between the roman and

tectonic ideas and pract ices. For instance the

Roman concept ion that the peop le were the

ult imate source of the royal authority and the

practice. Oalbar ian t ribes that the k ing was

under the law o f the folk happly coinc ided .

These events led to the growth of democratic

constitutionalism.

However, what retarded the pace was

combinati on of chur ch. Po lit ical th inke rs

fallowed the trend set by St. Augustine and St.

Thomas in making secular Authority

subserv ient to the author ity o f the church

that s igni f ied the rule of the b ishop over the

authority of the monarch and of the pope over

an secular and rel ig ions head of the Chr istian

wor ld . Th is ba lefu l s tate o f a f fa i rs could not

be remedied unt il after a per iod of about 800

yr. the nat ional monarch raised their heads to

overthrow the d iscredied hold of papacy. the

trend of national ism reared its head


14/36

part icular ly in France, England and Spain that

witnessed the emergence of the actual germs

o f the mod ern consti tu tio na l. S tate for i n

there countr ies pract icable pol it ics out stored

the lega l theor ies and the ghost o f the ho ly

Roman Empire was irrevocably laid.

During the Renaissance Period: - The medieval

world came to an end with pestr ience of the black

death of the fourteenth century. The renaissance

marked the re-emerged of a humanistic and

scient i f ic out look. I t ind icated that the European

people had developed a new consciousness of the

l i fe and new sense of l iberty. Achievement in the

f ie ld o f A rt s, L iterature, and Science threw o ff

medieval forms and looked for new values.

Inspiration was derived from models of the

classical world. A long with the renaissance

another movement that brought the midd le ages

to an end was the Reformation that destroyed the

medieval concept of universal ism and

scholast ic ism and supplemented the work of each

other by creating modern secular and sovere ign

nat iona l s ta tes. The general e ffect was a t once

one of atomsation and one of integration. It

atomized the medieval world but integrated

individual states.

However one thing that st i l l retarded the pace of a

constitutional state was the emergence of


15/36

absolute monarch . The unassai lable pos it ion o f

s ingle p eo ple w as taken o ver b y a numb er o f

despot ic ruler that forced the people to take the

matter revo lution for that sent iment. Machiav i ls

pr ince and Bod ins Repub lic become the chief

source of attract ion. The result was that after the

decl ine of pepocy absolute monarchia l ru les were

estab lished in Eng land, France, I ta ly, Spain and

Prussia. For this reason i t is commenced that the

renaissance state was not t ru ly a consti tut iona l

much or less a democracy state.

Constitutionalism in England : - Br itain occupies

the most s ign i f icant p lace in the development o f

const itut iona li sm. The age o f Tudor despoti sm

ended with the golden age of Queen El izabeth. The

S tuar ts monarch had to face oppos it ion o f the

people. The civi l war of 1640-48 was conducted on

the issue as to who was supreme. The law ( lexi) or

the k ing (rex). The defeat of k ing and the v ictory

o f the people confi rmed the sovereignty o f the

people what remained undone in the civi l war was

accompl ished in the g lor ious Revolution of 1688

that la id down the foundat ions of sovere ignty o f

the Par l iament. The movement for the

democratizat ion of the system continued with the

r esul t that great re fo rm ac ts mere passed i n

1832,1867 and 1884 that enfranchised more and

more people. The parl iament Act of 1911 cr ippled


16/36

t he house o f l ords and i ts amendment o f 1949

further reduced the area of authority of the house

in matters of passing a non-money bi l l . The r ise of

two po li tical part ies had i ts own contr ibut ion to

the d evelopment of co nsti tu tional ism in th is

count ry . I t made the funct ion o f par liamentary

government a possib i l i ty . As a result of a l l these

developments the sovereign stands removed from

the area of pol it ical authority. The power

exer ci sed by the min is ter accountable to the

par liament and that a ll c it izens o f the count ry ,

i r respective or the i r socia l and pol i tical posi t ion

enjoy the boons of l iberty and equal ity, what dicey

cal ls the rule of law. What is of special

importance in this regard is that Engl ish

const i tut ional ism has suppl ied a cont inuity of l i fe

to l iberal i ns ti tu tions through many centu ries

when e lse where they were dead o r had never

l ived. Permitted the growth of i ts own inst itut ions

among there communit ies in al l parts of the world

o f wh ich Eng land herse lf w as the mo ther and

suppl ied the pat tern o f a const itut ion when the

moment came for any newly l iberated community

to found one.

B ri ta in i s cal led the forerunner o f the modern

const itut ional ism. It was again Br itain that put an

end to an absolute monarchia l ru le establ ished a

const itut ional monarchy with such a system which


17/36

i n fa ct, w as d emo crati c. Thi s d ev elop ment of

const i tut ional ism in England began in the Anglo-

saxon age. The pol it ical o rgan izat ion formed in

thi s per iod become par ts and parce l o f Br it ish

consti tut ional ism. They are sti l l p resent , though

they have gone under a change w i th the t imes .

The system autocracy and local self government

are two important product of the age.

John, a merci less , cruel and tyrant king, ruled

England from 1196 to 1296 A.D. with weak hands.

Barons revol ted aga inst h im and compelled the

king to accept their demands submitted in a

charter known as Megna Carta.

This charter of r ight is consider as a great

landmark in Br it ish constitutional history.

Accord ing to some thinkers i t is the foundat ion of

Br i t ish democracy. Though there was no ment ion

of f reedom to peop le, yet an assembly o f Barons

w as constituted to subjug ate the monarchial

power. I ts intent was to be a guard over the k ing.

From this point of view magna carta was a

tu rning point i n the constitu tional h is tor y o f

England. It evolved the fundamentals that the king

has to function within certain frame work of

fundamental code.

Fal l ing which the people have r ight to compel him

to fo l low i t . Expla ining the s igni f icance of magna

carta ogg and zink write, But by getting the


18/36

sovereign solemn agreement to do certa in things

and not to do o thers and by get t ing over h im a

sor t o f baronia l guard to see that he l ived up to

high engagements, they turned the countrys step

once more way from absolut ism and in direct ion of

const i tut ional govt . there is no doubt that magna

carta was the f irst step towards the const itut ional

o r l imi ted monar chy. After th is, the p oli ti cal

th inking was i n te rm of l imi ted mo narchy and

const itut ional government. The r ight of the people

also.

England, after this, witnesses a strange

experiment of republican rule for eleven year. Not

only monarchy but the house o f lords was a lso

abol ished dur ing this per iod. But the exper iment

p roved a fai lu re and aga in 1660 S tuar t dynsty

r evi ved the royal power and b ecome ru ler o f

England. T ired of the tyranny by the Stuart ruler ,

James II , leader of the country invited Wil l iam.

Thus glor ious revolution took place in 1688 with

out shedd ing a d rop o f b lood . Wil liam and Mary

were dec la red the ruler s. Wi th i t t he absolute

monarchy ended and the authority of the

p arl iament was estab lished. The ki ng had no

control l ing power. He was subjugated to law. Bi l l

of r ights was passed in 1689. it ended the

centuries own confl ict of the constitutional

monar chy wi th the ab solu ti sm and f ina lly the


19/36

consti tu tional monarchy was estab li shed . The

supremacy of the parl iament was recognized by

the Act of Sett lement, 1701.

In the eighteen century the Br it ish Par l iament was

not truly, representative. The cabinet was

respons ib le only to the house o f commons. The

house commons was not less ar istocrat ic than that

of the house of lords. Even the big cit ies either did

not have the r ight to elect its representat ives or it

was nominal on ly . Reforms Act 1832 was passed

after a p ro longed rubbing in the par liament. I t

reformed the house o f common to some extent.

Rotton Boroghs were abol ished.

reform Acts o f 1864 and 1884 gave the r ights o f

franchise to the urban people.

Thus by the end of second half of the 18 t h century

Br ita in was const i tut ional , though not democrat ic

state. It was democratic state after the France and

industr ial revolut ions. By conventional growth and

by a series of statutes the three organs of

government, leg islat ive, execut ive and jud iciary,

were p roperly const it uted and related in such

manner as to ensure the absence o f tyranny . I t

was inev i tab le that th is system become a model

for latter constitutional development of our states.

U.S. America

The spir it of social contract of Rousseau had its

effect in U.S also where the declaration of


20/36

independence of 1776 categorical ly stated that al l

men are created equal. That they are endowed by

the ir c reators w ith cer ta in unamenable r ights.

That to secure these rights government are

inst i tuted among men, der iv ing their just powers

from the consent of the governed. That when ever

any form or govt becomes destructive o f these

ends, i t is the r ight of the people to alter or

abol ish i t . And to inst i tute a new govt . having i ts

foundations on such pr inciples, and organiz ing its

power in such fo rm as to them sha l l seem most

l ikely to af fect their safety and happiness guided

by there ideals, the founding father of the

American republ ic estab lished a form of federa l

government based on pr inc ip les o f separat ion of

power as so e laborate ly p resented by a F rench

thinkers (Montesquien) and supplemented i t with

the pr inciples of check and balance as evolved by

them. The result was that Amer ican came to have

government with execut ive legislat ive and judicial

power vested respect ively in the pres ident . The

congress and the supreme court.

The three organ of American govt are separated

from each other and at the same t ime, they check

each other so that the balance may be maintained,

thus al l appointments and torresten treat ies made

by the pres ident must be rat i f ied by the senate.


21/36

After The First World War.

The period following the first Great war as an era

of great surpr ise since, instead of br inging about a

r ich harvest of constitutionalism after the

terminat ion of host i l i t ies in a wor ld that could be

made safe for democracy , i t w itnessed ser ious

authori ta rian react ions aga inst t he p rocess o f

consti tut ional ism h i ther to set in the d i rection of

representative and responsible govt. the

emergence of commun ism in Russia, f ac ism in

I ta ly and Naz ism in Germany can be c i ted as the

concrete instance in this regard. The new

const i tut ional devices adopted in there countr ies

conta ined two e lement that d is tinguished them

from. Const itut ional state hitherto known- pol it ical

d ic ta torship through the dominance o f a s ingle

party to exclusion of a l l others and a total i tar ian

system that used the pol i t ica l machine to contro l

and d i rect every aspect o f economic, socia l and

even rel ig ious l ife . How eve r one remarkab le

aspect of post f irst war per iod was the

establishment of the f irst international

o rgan izat ion cal led the League o f Nat ions that

a imed by const i tut iona l means, as prevent ing or

peaceful ly setting confl icts between the

sovereignty of states. I t marked a new and


22/36

unprecedented stage in the development of

const itut ional ism. Const itut ional ism thus came to

have one more attr ibute called internationalism.

After Second World War.

Whil e the d icta tor sh ip of I ta ly, Ge rmany, and

Japan were destroyed in the second great war, The

model soviet un ion surv ived that now witnessed

its prol i ferat ion in other countr ies of the world. As

a result , a new model of const itut ional ism came to

have its place that may be found in all the

communist countr ies of the world. A good number

of countr ies become free that sought to adopt the

English or American models or a pecul iar

combinat ion of two. For instance whi le Ind ia the

west min ister model in 1950, Pak istan switched

over to American model 1958 and then got back to

the Engl ish model in 1972 subverted in 1977. the

poor and backward countr ies o f the wor ld ca l led

the developing countr ies made several experiment

with constitution making in order to have a

constitutional state.


23/36

Indian Perspective

Evolution Of Const itut ional Government In

India

We can divide the period in to f ive parts:-

1600 to 1772; 1773 to 1832; 1833 to 1856; 1857

to 1918; 1919 to 1949

1600 to 1772, The East India Company : The

Br itish author ity in Ind ia was establ ished through

the agency of a trading corporation- The East India

Company- formed in Eng land in 1600 under the

charter of queen El izabeth I. which gave it

exc lusive righ t o f tr ad ing in a ll pa rt s o f As ia ,

A fr ica, and Ameri ca , beyond the cape o f good

hope, eas tward to the s tra it s o f Magel lon. The

company establ ished its trading centers or

factor ies at severa l p laces in the country and in

the course of t ime the factories at Bombay,

Madras and Culcutta became the chief settlement

or presidencies, as they were cal led and exercised

superv ision and contro l over subord inate depots

and places in their vicinity.

In these c ircumstances i t become necessary even

b efor e the co mp any had become a so vere ign

power in Ind ia tha t the c rown . Should g rant to


24/36

them cer ta in leg is lat ive and jud ic ia l power to be

exercised by them over the English servants of the

comp any and such I nd ians sett l ers as p laced

themselves under their protect ion with regard to

ear ly l eg is la ti ve autho ri ty , Queen E li zabeth s

charter of 1601 granted permission to the

governor and company from time to t ime to

assemble themselves. Within our dominion or else

where and there to hold court for to said company

and affairs there of:

similar power were aff irmed by the charter

g ranted by James I and Charles I I i n 1609 and

1661 respect ively. The charter granted by Wil l iam

III in 1698 makes no mention of legislative powers.

In George I charter of 1726 men on the spot , the

governors in counci l o f three pres idencies , were

g iven power to make const itu te and orda in by

laws, rules and ordinance for the good government

and regulat ion o f several corporation there by

c reated and of i nhab itan ts o f seve ral tow ns,

p laces and f ac tori es and to impo se pains and

penal t ies upon a l l persons of fend ing against the

same.

The charter of 1726 also introduced in al l three

pres idencies a mayors court which was not the

companys court but the court of the king of

England though exercis ing i ts author i ty in a land


25/36

to which the king of England had no claim to

sovere ignty . The char ter o f George I I g ranted in

the year 1753 exact ly similar to that of George I .

I t was not t i l l the midd le o f the 18 t h century that

English had departed from the character of

merchant and factors , but then events occurred

victor ies of Plassy (1757) and Buxar (1764) which

made them virtual master of Bengal. The

companys career as a Terr i tona l power may be

treated as having begun from 1765, when it

o btained the g rant o f Diwani fr om Shah Alam

whom i t accepted as the r ight fu l c la imant to the

throne o f t he Moghu l Emperor . Thi s g rant was

expressed to cover the Provinces of Bengal, Bihar,

Orissa. The company did not undertake the

administrat ion of Diwani-revenue and civi l just ice.

By i t s own servants unt i l 1772, but when in that

year it stood forth as diwani the president counci l

promulgated a body laws. What is commonly

known as the plan of warren Hast ings. I t consisted

of 37 rules or section dealing with civi l and

criminal justice.

th is leg is lat ive was made not in exerc ise o f any

parl iamentary grant of power , but in the exercise

of Diwani of Bengal.

1773 To 1832: Regulat ing Act 1773: - The

Regulat ing Act ,1773 was the f i rst par l iamentary

Act passed af ter the company had acquired a de


26/36

facto sovereignty over vast terr i tory in the north

east India, For establ ishing certain regulat ions for

the better management of the affa irs of the east

Ind ia company . The act set up a government in

Bengal consist ing of a governor-general and four

counc ilors in whom the who le c iv il and mil itary

government of the presidency of Bengal, and also

the government and the ter ri to rial acquisi tions

and revenues in the kingdom of Bengal, Bihar, and

Orissa (diwani lands) was vested. The government

of the pres idencies o f Bombay and Madras were

subordinate to the Governor-General and counci l ,

who were there by constituted the supreme

government in India.

The Act 1781:- By another act o f par l iament

passed in 1781, the Governor-General and Counci l

were empowered to frame regulat ion for provincial

courts and counci ls . The power under Regulat ing

Act was intended to apply to the companys

set tlement a t for t Wil liam (Cu lcut ta ) and o ther

p laces subord inate there, while the Act o f 1781

authori zed the making of r eg ulations for the

te rri to rial a cq ui si ti ons of Beng al , Biha r, and

Orissa, i .e. Diwani kingdom; although the

Regulat ing act c lear ly del im ited the ter ri to rial

extent of the legislative power granted in it , it was

for some t ime interpreted to include even the area

under the Diwani grant . In respect of the subject


27/36

matters the powers of sc under the Regulat ing Act

were of wide amplitude.

In an act passed in1797, Par l iament refers to the

power under the Act o f 1781 as i f i t were one of

making a regular code to af fect the personal and

p rop ri etary of the I nd ians subjec ts and other

amenable to the companys court.

In 1793 the Bengal government issued a revised

and amended code of regulat ions, a body of forty

enactment commonly cal led the Cornwall is code.

Regulat ion XI I of the code ent i t led A Regulat ion

for forming into regular code al l regulat ions that

may be enacted for the internal government of the

Br itish terr i tor ies in Bengal ; laid down the mode

of exercise of legislative power which was

subsequently approved by Parliament.

The Charter Act of 1813: - By the charter act of

1813 the power of al l three counci ls were enlarged

and at the same time subjected to greater

control ler by Par l iament. Their regulat ion become

app licable to a ll person who should p roceed to

India within l imits of their govt.

1833 To 1856: Constitutional Changes:- The

charter Act of 1833 introduced important changes

in the system of leg is lat ion of Ind ia . In the f i rs t

place, i t vested the sole legislat ive power in India

in Governor General in counci l which consisted of

Governor General and four ordinary members.


28/36

The Act Of 1853: - The Act of 1853, renewing the

charter of 1833, took decisive step in

d i fferentiating machinery f rom executive. Under

the new Act the Governor Genera l counci l , when

act ing in i ts leg is lat ive capacity was enlarged by

the addit ion of s ix new member cal led leg is lat ive

members . Bu t no l aw by the counci l co uld be

promulgated unti l the same had been assented to

by the Governor General , whether he had been

present or not at the meet ing of the counci l . The

Governor General thus got the r ight of veto which

he did no possess under the Act of 1833.

For the f irst t ime, after the Act of 1853 the

legislat ive business of India came to transacted in

Pubic. Formal ly a l l d iscussion upon the subject of

p roposed leg is la tion were conducted in p rivate

l ike any other executive business.

The two other changes made in the legislative

p roced ure we re ( i) referri ng o f b il ls to se lec t

committees instead of single member. And ( i i ) the

d iscuss ion in counc il became ora l ins tead o f in

writ ing.

1857 To 1918: - The f irst war Indian independence

in 1857 brought the career of the East India

company to an end . In 1858 the government o f

India was placed direct ly under the crown through

the secretary o f s ta te for Ind ia . No change was

made in const itut ion o f the govt. o f Ind ia unt il


29/36

1861. when, by the counc il Act o f the year the

legislat ive system was remodeled. For purpose of

leg is la tion the Governor-Genera l s counc il was

re inforced by addi t iona l members, not less than

s ix , not more than twelve in number , nominated

for two years, of whom not less than hal f were to

b e non o ffi ci al s. The l egi sl ati ve p ow er of the

Governor-General in counci l was extended over al l

persons, whether Bri t ish or Indian, fore igner or

others, within the Ind ian dominion of her majesty

and over a l l cour ts o f just ice and over a l l p laces

and things within said terr itor ies, and also over al l

Br it ish subject within the domion of Indian states.

The act restored to the govt. of Madras and

Bombay the powers of leg is lat ion which had been

withdrawn by the charter Act of 1833.

By the Minto-Morley reforms of 1909 the

membership o f t he counc il was inc reased . The

number of addit ional member in the central

legislat ive counci l was f ixed at sixty, of whom not

more than 24 were to be non o f f i c ia l s and thus ,

the off ic ia l major i ty was cont inued in the central

counci l as before. Their function were also

widened.

1919 To 1949: The Government Of India Act:-

On August 20 , 1917 an important announcement

d efi ning go ver nment po li cy was made by the

secretary of state for India in the house of


30/36

commons. The pol icy of his majestys government,

said the secretary o f the s ta te , w ith which the

government of India act are in complete accord is

that o f the increas ing assoc ia tion o f Ind ians in

every branch of the administrat ion, and gradual

development of self governing inst itut ions, with a

view to the progressive realization of responsib le

government in Ind ia as an integ ra l par t o f t he

Brit ish Empire.

The Montague ChelmsFord Reform: - Which

were the proposals put forward by Mr. Montague,

the secretary of state, and lord Chelmsford were

embod ied in the gov t. o f I nd ia Act, 1919. The

p reamble to the Ac t ado pted Mr . Mon tag ues

declarat ion of August 1917. The main provision of

the Act of 1919.

Simon Commision:- The system Provincial

dyarchy embodied in the reforms of 1919 fai led to

ful fi ll t he hopes bui lt upon i t. The m in is te rial

respons ib il it y in respect o f t rans ferred mat ters

worked ineff ic iently. In large measure, the

governor came to dominate the ministr ia l pol icy,

p artl y b ecause fi nance was ma in ly unde r hi s

contro l and part ly because the off ic ia l b lock was

so large that it could of sustain in off ice a ministry

unfriendly to it . There was a persistent demond for

fur ther reforms. The govt . o f Ind ia Act 1919 had

provided for the appointment of a statutory


31/36

commissi on, af te r the exp iry o f 10 year from

pass ing o f the Act , to inqu i re and repor t on the

condi tion o f Ind ia under i ts new const itut ion.

The Government of India Bi l l was introduced

embodying with certain modifications. The

proposa l put forward in the report . The b i l l was

extensively amended during it passage. On August

2, 1935 the received the Royal assent.

Government Of India Act, 1935

The Main Provision Of The Act Are Stated

Below

1) Statutory division of Power:- The Act

made division of powers between the centre and

the prov inces. Cer tain object were exclusively

ass igned to the centra l or federa l leg islature,

other to the provincial legislatures.

2) Proposed All India Federat ion:- The act

proposed to subst itute a federal for what was in

substance a unitary system of government.

3) Governor Provinces:- The executive

government of the province vested in the

Governor. The Act provided responsible govt. in

the provinces.

4) The Federal Court:- The Act set-up a

federal court. I t consist of chief justice and not

more than s ix other judges. An increase over 6

needed the approval of the federal leg is lature.


32/36

The judge were appointed by warrant the royal

sign Manual.

5) Subsequent Event:- The Act of 1935 came

into force in regard to the p rovinces in Apr il ,

1937. The central Gov t. o f B ri ti sh Ind ia was

continued to be carr ied on in accordance with of

Act 1919.

In September 1939, wor ld war I I b roke out in

Europe. This Majestys Government immediately

dec lared Ind ia as a be l l igerent country at war

with Germany. This was done without reference

to the legis latures . The congress resented the

act ion of Br it ish Govt. i t declared that the issue

of war and peace for India could only decided by

the Ind ian people, and invited the Br i t ish Govt .

i t declare forth with in unequivocal terms what

were the i r a ims how there a im would app ly to

India.

6) The Crips Mission (1942):- I n March

1942, The British Govt. issued a draft

declarat ion containing the proposal in regard to

the future of India. S ir Stafford Cripps, a

member of the war cabinet, was sent out by the

Bri ti sh cab inet to d is cus the dra ft wi th the

Indians leader.

7) The Wavell Plan, 1945: - In June 1945, the

viceroy, V iscount Wavel l , made fresh proposals

on behal f o f t he Br it ish Gov t. t o resolve the


33/36

constitutional deadlock.

The proposals fai led as no agreement could be

arr ived a t r egarding the compos it ion o f t he

executive counci l .

8) Cabinet Mission 1946: - A fter t he l abour

party had come in power in England, on

February 19, i t was announced that a mission of

th ree cab inet m in is ter would be sent ou t to

India to explore the possib i l ity of an immediate

settlement of the Indian problem.

1947 To 1950:- India got f reedom from Bri t ish

rule on 15 Augus t 1947 . but the a ttainment o f

independence was not an end itself . It was

beg inning of s t rugg le , the st rugg le to l ive as an

independent nation and, at the same time

estab li shed a democracy based on the ideas o f

justice, l iberty equal ity and fraternity. Its provided

in the cabinet mission plan the constituent

assembly came into begins in November, 1946 its

members were elected by the provincial assembly

by direct election.

The draft constitution was publ ished in January

1948, the people Ind ia were g iven 8 month to

d iscuss the d ra ft and p ropose amendments. As

many as 7635 amendments were p roposed and

2473 were actua lly d iscussed . The const ituent

assembly held 11 session. The draft const i tut ion

was considered for 114 days.


34/36

The new constitution of India was adopted by the

consti tuent assembly on 26 November 1949 and

signed by the president.

conclusion: -

Our const i tut ion framers adopted Br i t ish form of

Parl iamentary government in which the

sov er eignty i s to b e ves ted in the p eop les in

par liamentary form of government people by the

way of d irect e lect ion elect their representat iveand they shal l form the government. Under Art icle

52 ther e shal l b e a presiden t and he shal l b e

const itut iona l head o f the s ta te but the actua l

power sha l l be excerc ised by counci l o f min ister

. In ord er to make the g overnment to b e mo re

condt itut ional t here are several p rovi sion and

safeguard are made under the Ind ian const i tut ion

So that no one could be d ictator the pr incip le of

separat ion of power incorporated under art icle 50

in Ind ian const i tut ion, i .e execut ive and jud ic iary

as we l l as leg is la ture sha l l be separate to each

other . Nei ther the jud ic ia ry and leg is la tive nor

execut ive shall inter fere domain of power of each

other . The domain of power has been determined

by the const itut ion i tsel f. But our const itut ion

framer had not adopted the pr inciple of separat ion

of power in str ict sense as it is in U.S.

The principle of rule of law is also incorporated in

Ind ian const i tut ion u/ar t 14 i .e no body is above


35/36

the law there is equal ity before the law and equal

p ro tect ion o f l aws. Whether he i s p resident o r

general cit izen subject to some privi lege.

Under Art icle 368 parl iament has been given wide

power to amend the const itut ion but not to the

extent t o amend p reamb le because i t i s bas ic

st ructure of the const i tut ion as i t was stated in

Keshwanad Bharti case 1973.

In order to make government to be more

const itut ional so that it could not become dictator

and runs according to the provision of

consti tu tion . It was necessary to es tab lished

strong and independent jud ic ia ry there fore the

provision of judicial review were also incorporated

under Art .13(2) i .e by the v ir tue of Art 13(2) S .C

has power o f jud ic ia l rev iew i f any law made by

the par l iament i f i t is in contravent ion of part I I I

o r o f any const i tut iona l prov is ion or against the

const itut ional spir it then S.C has power U/A 13(2)

to declared that law to be void.

In Conclusion After the study of several

provisions that are incorporated in const itut ion, i t

can be in ferred that our consti tut ion maker had

tr ied their best to establ ished const itut ional govt.

No body is supreme under the Indian const itut ion.

Neither the parliament nor judiciary rather

constitution is supreme.


36/36

It was held in Minerva Mills v.Union of India

AIR 1980.

historical evolution1

Documents