INDIAN LEGAL HISTORY AND IT’S IMPACT ON CONSTITUTION The legal history pertaining to exercise of the power in India starts from the time of 1773 when the British parliament passed the Regulating Act which be came an important mile stone in the constitutional history of India. The Regulating Act set up a government of Bengal consisting of a governor-general and four Councillors in whom was vested the whole civil and military Government of the Presidency of Bengal and also the government and the territorial acquisitions and revenues in the kingdoms of Bengal, Bihar and Orissa. The Presidents and Councils of Bombay and Madras were to be subordinate to the Governor- General and Council who were made the supreme Government in India. The victory lord civil in the battle of plassey in 1757 laid down the foundations of the British empire and thereafter the year of 1765 has been considered to be a turning point in Anglo- Indian history providing the territorial sovereignty be the East India company. Since the regulating Act has provided the jurisdiction to set up a Supreme Court in Bengal, which was consisting of a Governor- General and four councillors vested with the power of civil and military Govt, the jurisdiction conferred to the Supreme Court in Bengal was extended to all British subjects. Thus the power given to the Governor- General and his council to move and issue Rules, ordinance civil Govt. of the presidency of Bengal in 1781 there were many changes in regulating Act by issuance of Act of settlement and the same clarified that what law has to be administered by the Supreme Court. By the pits India Act, the Governor- General was vested with the power of superintendence, control and directions of the presidencies of Bengal, Bombay. Madras which were sub- ordinate to the Governor- General but there was dual control of the committee of the secretary of England. Over- Governor- General which continued up to 1850 when the Govt. of India was taken over by the British Govt. from the company. The charters Act, 1813, of the year of1833 and the year of1853 created a separate legislative council consisting of 12 members win of includes the Governor- General. The commander in Chief, four members of the council and six legislative members of whom two were English judges of Calcutta Supreme Court and four officials appointed by the local govt. of Madras, Bombay, Bengal and Agra. The Governor- General of India. The Govt of India Act, 1858 had abolished the power of the board of control and the court of direction which were transferred to the secretary of the state and his council consisting of 15 members, Thereafter the Indian councils Act in 1861, 1892 and in 1909 known as Minto Morley reform were introduced: creasing the members up to sixty for additional members of Governor- general council fifty members were for Madras, Bengal. U.P., Bombay, Bihar and Orissa while thirty members were from Punjab, Burma & Assam. Thus the imperial legislative council was to consist of 37 officials and 23 non- officials. Since the people were dissatisfied with the reform of 1909, Mr. Montagu the new secretary for the state of India made certain reforms for increasing association of Indians in self Govt. with a view to the progressive realisation of responsible Govt. in India as an integral past of British empire. However, the Govt. of India, Act, 1919 provided a great land mark in the constitutional development and the aforesaid Act set up a bicarmesal legislative consisting of two houses as council of state and control legislative Assembly with a life span of five years and there years respectively. This Act provided for two lists of subjects as to get uniformity in legislation was necessary and desirable. Thus the control list and provincial list were given while the residuary subjects were divided pet were control and provinces ultimately the Govt. of India Act- 1935 has provided the federal legislature which was consisting of federal Assembly and the council for the state. This Act provided for the establishment of the federal court of India with the jurisdiction over the provinces and the state consisting of a Chief justice and two puisne judges. However the last word regarding interpretation of the legislative within the spear reserved for them was to be said by the privy council sitting in London. The Indian Independence Act, 1947 provided that until a new constitution in framed, the Act made by the existing constituent Assembly, exercising all such powers which were formally exercised by control legislative were given additional power regarding the framing of new constitution. The constituent Assembly met on Dec. 9, 1946 and 4 Dec. 1946 Dr. Rajendra Prasad was elected as the permanent Chairman of the constituent Assembly. The constitution was adopted by the constituent Assembly on Nov. 26, 1949 and come in to force on Jan. 26, 1950. However a referendum which should have been held and the constitution should have been referred to the people of India for their approval was not been done. However it is said that the constitution should have it’s roots, it’s authority, its sovereignty from the people which has not been done. Thus prior to the coming in to force of the constitution, the High Court of Madras, Bombay and Calcutta had the power to issue certain prerogative writs will in their original civil jurisdiction prior to the amendment of 1963, the High Court were given power to issue a writ within its territorial jurisdiction but the power was conferred after the amendment of 1963 to empower the High Court for issuance of a writ in which a cause of action has arisla within its territorial jurisdiction even if the Govt. of the authority again whom the writ is issued is not within its territorial jurisdiction. OBJECTS AND SCOPE OF CONSTITUTION Democracy is impossible without the effective participation of citizens which involves the creation of certain conditions facilitating such participation. Civil education of citizens, leadership training and inculcation of morals and values in them are necessary for a sound democratic system. Different meanings have been given to the term ‘Republic’ by various writers. According to jellinek, a Republic is a Government not by a single person but by a collegial organisation more or less numerous. The view of Madison is that a Republic is a government which derives its powers directly or indirectly from the great body of the people and is administered by persons holding their offices during pleasure, for limited period or during good behaviour. It is essential to such a government that it be derived from the great body of the society, not from any portion, or a favoured class. According to Justice Cooley, By the republican form of government is understood a government by representatives chosen by the people or community as an organised whole wield sovereign powers of Government and, on the othe(F)
Posted on: Wed, 11 Jun 2014 14:39:13 +0000
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