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Legal and Constitutional History Notes 1CHAPTER 1INTRODUCTIONSYNOPSIS(1) East India Company and early British Administration (2) The Regulating Act of 1773 (3) Pitt’s India Act (4) The Charter Acts, 1786 to 1833 (5) The Charter Act of 1833 (6) The Act of 1858 (7) The Indian Councils Act, 1892The Eas...

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Legal and Constitutional History Notes1 CHAPTER 1 INTRODUCTION SYNOPSIS (1) (2) (3) (4) (5) (6) (7)

East India Company and early British Administration The Regulating Act of 1773 Pitt’s India Act The Charter Acts, 1786 to 1833 The Charter Act of 1833 The Act of 1858 The Indian Councils Act, 1892

The East India Company which was created by the Charter of 1600 was essentially a trading company. The Company established its first settlement at Surat as a result of Royal Firman from the Mogul Emperor Jehangir. In course of time, it established its settlements at different places along the coasts of India can broadly be divided into the following phases: The early period of the East India Company’s rule, the British Government exercising its control over the East India Company, the various reforms to associate Indian people with the administration and to establish a centralized Government in India, the increasing agitation of the Indian Nationalist Movement for Self-Government, the legislative measures to accommodate the demand for self-Government, the devolution of powers and introduction of provincial autonomy, attempt to introduce the principle of federalism and Independence and partition of the country. In brief, the Constitutional development in the country has been first towards centralization of administration and then towards decentralization and introduction of rudiments of responsible Government. 1.

East India Company and early British Administration

When the East India Company established its first settlement at Surat in 1613, the Mogul Emperor had exempted the members and servants of the Company from the operation of the local law. Therefore, the Company enjoyed limited legislative and judicial powers over its servants and subsequently over the other inhabitants in the settlement. But, with the acquisition of territories the character of the Company changed. When the Company was established it enjoyed certain autonomy and it was constituted on the democratic principle. But, with the acquisition of territory by the 1 Jhabvala Book on Legal and Constitutional History

Company, the demand for greater governmental and parliamentary control over the Company increased in Great Britain. The result was the Regulating Act, 1773.

2.

The Regulating Act, 1773

With the passing of this Act, a type of direct parliamentary control over the Court of Directors of the Company was established. But, this control was very weak. The Directors were required to submit copies of the correspondence between the Company and the Governor-General-in-Council regarding revenue matters and civil and military matters. The Act also established the supremacy of the Bengal Presidency over those of Bombay and Madras. The Bengal Presidency was authorized to deal exclusively with matters of war and peace. The Act also established a Supreme Court at Calcutta which, for the first time, enjoyed the power of judicial control over the administration. This was the first court during the British period to be presided over by trained lawyers. But the principle of judicial control led to conflict between the judiciary control led to conflict between the judiciary and the executive. The Act of Settlement of 1781 removed this judicial control. The Regulating Act had also empowered the Governor-General-in-Council to make regulations. This Act and the subsequent Act of 1781 regularized the procedure for the framing of those regulations. In course of time, the measures proved to be unsatisfactory. There were a number of reports of several misdeeds of the Company’s Government in India. The liberal opinion in England wanted greater parliamentary control of the Company’s administration. But the attempt of the Liberal Cabinet to introduce far-reaching changes was defeated by the House of Commons. Nevertheless, Pitt the younger who formed the next Cabinet was able to introduce certain changes in the administration of India. 3.

Pitt’s India Act

The most important change brought by Pitt’s India Act was to curtail the powers of the Court of Directors of the Company over political affairs. The Act which received Royal assent in 1784 allowed the Court of Directors manage the commercial affairs of the Company as they liked. With regard to political affairs of the Company, the Board of Control was appointed. The Board was presided over by the Chancellor of the Exchequer and four Privy Councilors and a Secretary were also its members. This Board exercised the power of superintendence, direction and control of all the affairs in relation of the civil and military Government of the British Territorial possessions in the East Indies. Expecting the power of appointment of the officers of the Company, the Court of the

Proprietors lost all its political powers. The Company also professed the policy of nonintervention in the affairs of Indian rulers. Notwithstanding the professed policy of non-intervention, there was vast territorial acquisition by the Company’s Government in India. This territorial expansion necessitated greater parliamentary control. Such Parliamentary control was sought to be introduced by several Acts known as Charter Acts. 4.

The Charter Acts, 1786 to 1853

These series of Acts attempted to abolish the monopoly of the East India Company in trade and to provide legislative machinery so that laws could be made for India as whole. 5. The Charter Act of 1833 This Act was an Act having a very comprehensive and far- reaching effect. This Act was a result of certain changed circumstances both in England and India. In England, the Parliamentary reforms were effected in 1830 and as a result of that the House of Commons was reformed. The reformed House of Commons was embodied with ideals of Liberalism. There was also a considerable demand for freedom of trade with India and unrestricted immigration of Europeans into India. Liberal leaders like Macaulay and James Mill had also felt the necessity of the reform of Indian Laws and improvement in state of education prevailing in India. Further, it was felt that it was preposterous to leave the political government of an immense Empire in the hands of Joint Stock Company without any association of native population. In India, there was a territorial expansion of the East India Company and such expansion had created certain administrative difficulties. In view of the above factors, the Charter Act of 1833 was passed. The effect of the Act can be summed up as follows: (a) Monopoly of the East India Company to trade with India was brought to an end. (b) All restrictions to European immigration into India was removed. (c) The power of Governor-General-in-Council to legislate was enhanced. The Act empowered the Governor-General-in-Council to make laws and regulations for all the persons and for all Courts in British India. There was no need to register such laws enacted b y the Governor-General with the Supreme Court. (d) A law commission was appointed for codification of the laws. The principle of codification was, as Lord Macaulay put it, uniformity wherever possible, diversity wherever necessary and certainty in all cases. To achieve this process, an English Barrister was added to the Council of the Governor-General. Macaulay was the first law member of the Council and he was also the President of the Law Commission which was appointed under the Act.

(e) The Act also provided that the natives irrespective of race or religion, place of birth were to be eligible for public appointments. Provisions were also made for their education. (f)The Act declared that the British Parliament had full complete and constantly existing right and power to control, supersede or prevent all proceedings and Acts of the of Governor-General-in-Council. (g) The Act also provided measures for the abolition of slavery throughout India. The Charter Act, 1833 almost paved the way for the resumption of Government of India by the Crown of England. 6. The Act of 1858 The Indian revolution of 1857 expedited certain constitutional developments in India. The main effect of the Revolution was the passing of the Act for the good Government of India in 1858. The Company abolished the Court of Directors and the Board of Control. It transferred the Government territories and revenues of India from the Company to the Crown. The Queen, by her proclamation of 1858, assumed the Government of India. The result was that the Direct rule of the British Crown was established in India. The contents of the Proclamation of 1858 can be summarized as follows: (a) The Crown took upon itself the Government of India which was being run by the East India Company. (b) The first Viceroy and Governor-General was appointed to administer the Government in the name and on behalf of the Crown. (c) The Proclamation also further assured that all treaties and engagements made with the native Princes of India by or under the authority of East India Company, will be accepted and scrupulously maintained by the Crown. (d) It was made clear that the Crown had no desire to extend its territorial possession and while it would not permit any aggression upon its dominion, it would sanction no encroachment of the territories of others. (e) The Proclamation further stated that the Crown was bound to the natives of Indian territories by the same obligation of the duties which bound it to all its other subjects. By the Act of 1858, all powers-legislative, administrative and financial came to be centralized in the Secretary of State for India in Council. The Secretary of State was charged with the superintendence, direction and control of all Acts, operations and concerns which is anywise relate to Government or revenue of India. He was assisted by a Council composed of men who has expert knowledge and experience of India. It was

composed of 15 members of whom 8 were appointed by the Crown and 7 were elected in the first instance by the Court of Directors and subsequently the Council itself. 7. The Indian Councils Acts, 1861 The process of centralization introduced by the Regulating Act culminated in the Act of 1833, By the Charter Act, 1833 supreme authority of the of Governor-General-inCouncil over other Presidencies was fully established. But this centralization, naturally, presented certain difficulties in administration of a vast country like India. To remedy the difficulties and the defects arising out of centralization, the Indian Councils Act, 1861 was passed. It can be said that with the passing of the Act, the process of decentralization began. As a result of this Act, the Councils of Bombay and Madras were restored their legislative powers. New Councils, were allowed to be established in other Provinces, but, at the same time, previous sanction of the Governor-General was necessary for Legislation by Provincial Council in certain matters. Further, the laws passed by the Provincial Councils also required the assent of the Governor-General for their validity.

8. The Indian Councils Act, 1892 Though the Indian Revolution of 1857 was curbed and some reforms were introduced; yet, the political situation in the country became highly surcharged with the spirit of nationalism. The Chief factors which gave rise in the nationalist movement in the Eighties of the 19th Century can be summed up as follows: 1. The liberal political ideas of the West had inspired the educated elite in the country and therefore, their craving for political independence was strengthened; 2. There was a general movement of religious revival which enhanced the faith of the Indian people in the glory of ancient India. The result was that the Indians began to consider themselves as people not inferior to the British; 3. The economic discontent had assumed vast proportions as a result of the destruction of indigenous handicraft industries in the country; 4. The Indian press and vernacular literature had played an effective role in rousing the national conscience of the Indian people. 5. The development of communication had strengthened the patriotic bonds of the people; 6. The unimaginative administration of certain Governor-General like Lord Lytton increased the feeling of racial bitterness. Besides, the arrogance and the insolence of the rulers resulted in complete dissatisfaction towards the Government.

In the meanwhile, the Indian National Congress established in 1855 organized the national political opinion in the country. It gave a clear demand for a greater share in the Government and administration in its very first session, which also expressed grave dissatisfaction at the system of Government as existed then. The Viceroy Lord Dufferin could feel the pulse of the country and appointed a Committee of the Councils and also to introduce the elective principle in the formation of the Councils. Though the Secretary of the State did not agree with all the recommendations of the Viceroy; yet, a bill was introduced in the Parliament which was passed two years later. This Act is known as Indian Councils Act of 1892. The Act was intended to widen the basis and expand the functions of the Government of India. It was also intended to give greater opportunities to the non-official Indian elements to take part in the work of Government of India. The Act increased the number of additional members. The Governor-General’s Council was to have not less than 10 and not more than 16 additional members. The Provincial Councils of Bombay and Madras were to have not less than 8 and not more than 20 members. Similar increase was made in the strength of Councils of Bengal, North West Provinces and Oudh. The Act also enlarged the functions of the Councils. The Councils were also allowed to discuss the annual financial settlement. The members of the Councils were also permitted to ask questions with certain limited spheres. The Council would have some members elected indirectly through local Government bodies, universities and professional and commercial associations.

CHAPTER II MINTO-MORLEY REFORMS

The Indian Councils Act of 1892 did not satisfy the Indian public opinion. An intense nationalist movement developed in the country. The new movement developed along anarchist and terrorist lines. This movement drew its inspiration from leaders like Tilak and Aurobindo Ghosh. On the other hand, under the guidance of Bipinchandra Pal, Lajpatrai and Gopal Krishna Gokhale the moderates also began to press for greater political reforms. Gokhale, therefore, a Royal Commission was appointed to examine the Indian political situation and to suggest remedies for the ills that beset the Indian political scene. The Commission had limited field of reference and the recommendations of the Commission were given effect to by an Act in May, 1909. The measures introduced by the Act are popularly known as the Minto- Morley Reforms. The main feature of the Act was to raise the number of members in the Legislative Councils and to adopt the principle of indirect election to the Council. The scope and the function of this Council were also enlarged. The Reforms, in brief attempted to graft the principle of constitutionalism upon the Autocracy of British Rule as it existed. The most outstanding characteristic of this Act of 1909 which brought in the so-called Minto-Morley Reforms was that the central legislative body, the Council was made more representative and effective. The Council was modified in the following aspects: (1)Under the Act the number of the members of the Council were doubled; and (2) The proportion of the non- official members as compared to the official was increased; and (3) For the first time, in the history of British administration in India, the principle of indirect election was accepted. The main characteristic of the Act, 1909 was that it recognized the principle of representation. The Act accepted the position that the election by the wishes of the people is the ultimate end to be secured. It also accepted, unfortunately, that in the prevailing circumstances representation of classes and interests was the only practical method of embodying the principle of representation in the constitution of the Legislative Councils. This, unfortunately, led to the beginning of the communal electorate in India. Under this Act, there was a representation to Muslims, Landlords, Chamber of Commerce, etc. It is unfortunate that an Act, which wanted to bring in the principles of representation of the people defeated them on irrational basis.

CHANGES IN THE FUNCTIONS OF THE COUNCILS The Act of 1861 had strictly limited the functions of the Councils to the field of legislation. The Act of 1892 gave members the power to discuss the budget but not to move resolutions about it or to divide the Council. The Act of 1909 enlarged the scope of the functions of the Councils in three ways: 1. (a) to discuss the budget at length before it was finally settled; (b) to propose resolutions upon it (c ) to decide upon those resolutions 2. The extended powers of the Councils went even beyond the discussions on the budget and embraced almost all the matters of the public importance through resolutions and divisions taken. These resolutions, however, were not binding on the executive Government, but only had the effect of recommendations. 3. The right to ask questions by the members was enlarged and supplementaries were also allowed.

On the whole, the Minto-Morley Reforms were a great improvement upon the Act of 1892. Nevertheless, they failed to satisfy the aspirations of the people. First, the Councils were not truly the representative of the people as a whole. Narrow franchise and indirect elections failed to instill In the members a sense of responsibility to the people. Secondly, the Councils had no real power in the field of legislation and finance. They were only debating bodies which aired certain criticisms. Thirdly, neither the sub ordination nor that of the latter to the Secretary of the State was relaxed. Finally, the Act had no answer to the demand for responsible Government. In fact, Lord Morley was frank in this respect by openly declaring that he would have nothing to do with the Reforms if they were constructed as a step towards the establishment of a parliamentary system of government in India. It was, on the other hand” to create a constitution about which conservative opinion would crystallize and offer sub substantial opposition to any further change.” Both Morley and Minto desired to associate only such Indians with the administration of the country who would “oppose any further shifting of the balance of power and any attempt to democratize Indian Institutions.” The position was not in any substantial way better in the case of the Provincial Councils, as the elected element was not in an effective majority anywhere and also because the final authority in almost all cases rested with the Government of India. The MintoMorley Reforms thus failed to satisfy even the most moderate sections of political opinion in India.

What then was purpose of the Reforms? They were an attempt to graft the principle of constitutionalism upon the existing autocracy of the British Rule. They were at the best the outcome of the old conception which might, as it saw fit for purposes of enlightenment, consult the wishes of its subjects. This was incapable of satisfying the Indian people and naturally, they were disillusioned. Agitation against the foreign rule was steadily mounting and it had by now assumed many forms and unprecedented proportions. The Government bent upon crushing the mounting unrest followed a policy of ruthless repression accompanied by minor measures of reforms. Bengal was the spear-head of the agitation where on the account of the repressive policy of the Government, the movement went underground and it took a violent form indulging in arson, murder and organized dacoity. Many patriots sincerely believed that by indulging in this type of activity the British would be compelled to quit. They were, however, unaware, of the fact that the country as a whole was not prepared to accept their way of thinking. In fact, in many parts of the country the national organ...