HISTORICAL EVOLUTION, MAKING AND FEATURES OF CONSTITUTION

HISTORICAL EVOLUTION, MAKING AND FEATURES OF CONSTITUTION

HISTORICAL UNDERPINNINGS

The commercial contacts between India and Europe were very old via the land route either through the Oxus Valley or Syria or Egypt. But the new route via the cape of good hope was discovered by Vasco-Da-Gama in 1498.

• Therefore, many trading companies came to India and established their trading center in different places of India. They entered India as a trader at the outset but by the passage of time indulge in the politics of India.

• The commercial rivalries among the European powers led to political rivalry and ultimately British succeeded in establishing their rule in India.
• In 1599 a grouped named "Merchant of adventures" founded English East India Company or the governor and company of merchants Trading into the East Indies in England. Queen Elizabeth, I provided exclusive right to the company to trade in India under a charter.

ESTABLISHING BRITISH SUPREMACY:

After defeating major European players, the company was started dreaming of becoming a ruling power in gradual manner.

Gradually, EIC started dominating other European powers and able established various trading posts such as East India company Factories :-

The company became involved in politics and played one local rule against the other.

The East India Company Charter of 1661

          The charter empowered the company to administer over the Fort, Colonies and cities, i.e., universal territorial jurisdiction in its Indian settlements. Right to war with Indian local King and peace.

If  any person whit interferes in the trade monopoly of company be sent to Britain for starting litigation. Company was authorized to appoint the governor and officers for judicial administration over all subjects as well as workers of Company.

The Charter of 1600 provided simple punishment. But the Charter of 1661 enabled the Governor and his council to penalize with the punishment of hanging in the heinous crime.

Charter of 1726

This crown charter replaced the mayor's court in madras and the ad hoc courts in Bombay and Calcutta with a new set of English legal institutions. This Charter introduced a uniform judicial system in India. It provided for the establishment of a corporation in each presidency town: Bombay, Calcutta, Madras.

Constitutional Development under British Rule (1773-1858)

Regulating Act, 1773

Some of the important features of this Act are as follows:     

1. It marks the beginning of parliamentary control over the company's affairs to govern Indian territories.
2. It demonstrates clearly that the administration of Indian territories was not a personal affair of the Company and that the British Parliament had every right to pass laws and instructions in that regard.
3. It accorded supremacy to the Presidency of Bengal and the governor of Bengal was appointed as the Governor-General.* The Madras and Bombay presidencies lost their independence and were made subordinate to Bengal.
4. Establishment of Supreme Court in India. The Judicature consisted of one chief Justice and three other members. However, the Act gave golden opportunity to the British government to interfere in the internal affairs of the Company.
5. A council consisting of four members was constituted to assist the Governor General. The members were sent from England and could be removed by none other than the Crown. Their tenure of office was fixed as 5 years.

Hence this act had sown the seeds of central administration in India.

*Lord Warren Hastings was the First Governor of Bengal.

Assessment analysis of the act of 1773-

The Regulating Act of 1773, tried to sail in an unchartered sea. As it left the details of administration in India to the devices of the company. However, it tried to organize an honest and efficient supreme authority in Bengal, Madras & Bombay and to provide against the abuse of their powers by the servants of the company. It was a failure and only added to Hastings difficulties instead of strengthening him. The Act was in operation for 11 years till it was superseded by the Pitt's India Act of 1984.

The Act of Settlement, 1781

The Act of Settlement of 1781 or the amending act made the following changes in the Regulating Act:

1. It exempted the Actions of the public servants of the Company done in official capacity from the jurisdiction of the Supreme Court.
2. It tried to settle the question of jurisdiction of the court over servants of the company and the native inhabitants.
3. It made clear as to what law was to be applied by the Supreme Court.
4. The Act recognised and confirmed the appellate jurisdiction of the Governor-General-in-Council in cases decided by the Mufassil Courts.
5. It empowered the Governor-General-in-Council to frame regulations for the Provincial Courts and Council act.

Key provision of the Act:

• It excluded the revenue matters.
• It exempted the Governor-General and the Council from the jurisdiction of the Supreme Court
• It provided that the Supreme Court was to have jurisdiction over all the inhabitants of Calcutta.
• It also required the court to administer the personal law of the defendants i.e.,

• Hindus were to be tried according to the Hindu law
• Muslims were to be tried according to the Mohammedan law.
• It laid down that the appeals from the Provincial Courts could be taken to the Governor-General-in-Council and not to the Supreme Court.
• It empowered the Governor-General-in-Council to frame regulations for the Provincial Courts and councils.

The Pitt's India Act, 1784

BACKGROUND :-

The regulating act proved to be an unsatisfactory document as its failed in its objective.

• In January 1784, Prime Minister of England i.e. Pitt the younger introduced the Indian Bill in the British Parliament.
• Pitts India Act of 1784 was passed to remove the drawbacks of regulating Act of 1773 by the youngest Prime Minister, Pitt the Younger.
• The enactment resulted in joint government in India by Crown in Great Britain and EIC, under which political functions snatched away from the company.

The Act of Settlement of 1781 however could not cure the defects of the Regulating Act and the Pitt's India Act was passed by the Parliament to remedy the situation.

1. The Act distinguished between commercial and political functions of the company.
2. Double system of Government:-
   1. The Court of Directors: was allowed to manage commercial affairs of the company.
   2. Creation of Board of Control: Board of Six commissioners appointed to control political affairs.
3. The commissioners were appointed by the king and had to hold office during his pleasure.
4. The Board was empowered to superintend, direct and control all operations of the civil and military governments of the British possessions in the East India. But the Court of Directors were still strong, they had retained their vast patronage and had the right to appoint and dismiss their servants in India.
5. Company's territories in India were known as British Possessions in India.

The act was significant mainly for two reasons. first the company's territories in India were for the first time called the British possessions in India, and second the British Government was given the supreme control over the company's affairs and its administration in india.

The Act of 1786

BACKGROUND:

• • Cornwallis succeeded Warren Hastings as Governor General in 1786
  • To accept the position as Governor General, he made following demands-
  • 

In order to appoint him as a Governor General, Amendment of Pitts India act was done. In 1786, Cornwallis was appointed as the Governor-General of Bengal”

1. The Act provided that in future no one should be appointed as a member of the Council unless he had at least twelve years of service.
2. It amended the provision of the Act of 1784 which made the Commander-in-Chief as the second Member of the Council and left it to the discretion of the Court of Directors to appoint him to such office.
3. The Court of Directors was empowered to unite in the same person, the offices of the Governor-General as well as the Governors of Madras and Bombay, the power to override their respective Councils in special cases.
4. Lord Cornwallis refused to accept the office of the Governor-General because he wanted to have the power to override his Council in important cases.
5. This Act also required the servants of the Company to disclose the amount of property they had brought to England.

THE ERA OF CHARTER ACT:1793-1853

DEFINITION OF CHARTER:

• A written instrument or contract (such as a deed) executed in due form
• A grant or guarantee of rights, franchises, or privileges from the sovereign power of a state or country.

 Charter Act, 1793

Aimed at renewing the company's charter for the next 20 years

1. It extended the privileges of the Company for a further period of 20 years without prejudice to the claim of the public.
2. The Act made provision for the payment of salaries and other expenses of the members and staff of the Board of Control out of Indian revenues.
3. The Council of Governor-General as well as the Governors of the Presidencies were to have only three Members. These Members were to be appointed from amongst persons who had been residents of India for at least twelve years.
4. The Commander-in-Chief was not to be a member of the Council, unless the Court of Directors specially appointed him.
5. It extended the overriding power granted to Lord Cornwallis over his council, to the subsequent Governor-General as well as the Governors of the Presidencies.
6. The Governor-General, the Governors, the Commander-in-Chief and other high officials were not to move out of India during their tenure without prior permission.

FEATURE OF THIS ACT ARE AS FOLLOWS:

The features of this Act were as follows:

• It extended the overriding power given to Lord Cornwallis over his council, to all future Governor-Generals and Governors of Presidencies.
• It gave the Governor-General more powers and control over the governments of the subordinate Presidencies of Bombay and Madras.
• It extended the trade monopoly of the Company in India for another period of twenty years.
• It provided that the Commander-in-Chief was not to be a member of the Governor-General's council, unless he was so appointed.
• It laid down that the members of the Board of Control and their staff were, henceforth, to be paid out of the Indian revenues.

Charter Act, 1813

What were in the Act?

• Monopoly Ended: Monopoly of East India company ended after the enactment of Charter Act of 1813 except for trade in tea, opium, and with China .
• Extension of EIC's Rule in India: The act extended company's rule to another 20 years.The Charter Act of 1813 Reasserted British sovereignty over British possessions in India.
• Religious Propagation: Charter Act of 1813 granted permission to Christian missionarieswho wished to go to India for promoting moral and religious improvements.

• Controlling Company's Revenue Profit: The act regulated the company's territorial revenues and commercial profits. The company's dividend was fixed at 10.5% per annum.
• Made compulsory educational investment in India: The Charter Act of 1831 included a provision that Company should invest Rs. 1 Lakh every year on the education of Indians.

Charter Act, 1833

• Final Step of Centralization
• Governor General of India
• All the 'Regulations' will be Acts

The features of this Act were as follows:

• It made the Governor-General of Bengal as the Governor-General of India and vested in him all civil and military powers. Thus, the act created, for the first time, Government of India having authority over the entire territorial area possessed by the British in India. Lord William Bentick was the first Governor-General of India.
• It deprived the Governor of Bombay and Madras of their legislative powers. The Governor-General of India was given exclusive legislative powers for the entire British India. The laws made under the previous acts were called as Regulations, while laws made under this act were called as Acts.
• It ended the activities of the East India Company as a commercial body, which became a purely administrative body. It provided that the Company's territories in India were held by it 'in trust for His Majesty, His heirs and successors'.
• The Charter Act of 1833 attempted to introduce a system of open competition for selection of civil servants and stated that the Indians should not be debarred from holding any place, office and employment under the Company. However, this provision was negated after opposition from the Court of Directors.

** Lord William Bentinck was the first Governor General of India.

Assessment of the Charter Act of 1833

The act of 1833 undoubtedly brought about significant and far reaching changes in the constitution of India. The company having lost its commercial privileges could now concentrate on administration. Also, the provision for the codification of law was of great consequence as before 1833, the laws were so imperfect that in most of the cases it was almost impossible to ascertain what exactly the law was. There were several types of laws enforceable in India and at times it used to become a difficult question to decide which law was applicable in a particular case.

Also, the provision concerning the abolition of slavery irrespective of religion, place of birth, descent and colour is another lendable feature of the Act. However, it might have been passed.

Charter Act, 1853

This was the last of the series of charter acts passed by the britishparliament between 1793 and. 1853 IT WAS SIGNIFICANT CONSTITUTIONAL LANDMARK.

Soon company appointed two committees to look into the affairs of the company. According to the recommendations and reports of the committees, British Parliament passed 'CHARTER ACT OF 1853’

1. The council was enlarged for legislative purposes by the addition of six special members who were expressly debarred from sitting and voting in the Council, "except at meeting thereof for making laws and regulations." This led to first time introduction of the Indian/local representation in the Central Legislative Council.
2. Among these six members, one was to be a local official representing each of the four provinces viz. Madras, Bombay, Bengal and North Western Provinces, and the Chief-Justice and Puisne judge of the Supreme Court.
3. The Council now consisted of twelve members including the Governor-General and the Commander-in-Chief.
4. It gave the "presiding officer" the right to exercise the "casting vote".
5. It was also provided that no law made by the Council would come into force until the same had been assented to by the Governor-General.
6. Introduction of open competition for Civil Services in India.

FEATURES OF THIS ACT ARE AS FOLLOWS:

• The legislative and executive functions of the Governor-General's Council were separated.
• 6 members in Central legislative council. Four out of six members were appointed by the provisional governments of Madras, Bombay, Bengal and Agra.
• It introduced a system of open competition as the basis for the recruitment of civil servants of the Company (Indian Civil Service opened for all)

Assessment of the Charter Act of 1853

The Act was a Compromise between two conflicting views. Those who favoured the retention of the company's territorial authority were satisfied by the provision that the company should continue to govern India in trust for the crown until the Parliament should otherwise direct. While those who wanted the substitution of Crown control for that of the company were now satisfied that the number of directors were reduced from 24 to 18 of whom 6 were to be the nominees of the crown & that the quorum was fixed at 10 so that when the meetings of the court were thinly attended, the nominees of the Crown were able to have a majority. Eventually, the Directors lost their patronage.

One of the main shortcomings in the act however was the continued exclusion of the people of the land with the work of legislation.