Historical Perspective Constitutional law:

Constitutional law refers to that aspect of legal system and legal traditions and legal tradition which is directly concerned with integrating and applying fundamental rules that define and delimit the powers, rights and duties of the governments, other organs of states and citizens. A single written constitution is not necessary to have constitutional law. In Britain neither a formal constitution nor a court specifically concerned with constitutional matters exists, yet there are clear legal legal rules and practices restricting the action of political institutions, granting rights and enforcing duties.

Constitutional Developments in India:

Modern democracy and constitutional government may be western developments but ancient India was not unfamiliar with the republican institutions, democratic assemblies, panchayats and safeguards that limited the power of monarchs and protected the public from abuse of authorities. However, it was under British rule that modern idea of constitution developed. As East India Company, changed from mere trading group into a political authority- on behalf of British crown- several Charters and Acts were passed by British Parliament to regulate its conduct. Some of these are of significance from the point of view of India's constitutional history. A brief review of these Constitutional developments are as follows:

Regulating Act, 1773

Chief clauses Directors of Company were required to lay before a Secretary of State matters dealing with civil or military administration of Company. Governor of Bengal was made the Governor General of Bengal. An Executive Council of four members was created to assist Governor General. In matters of foreign policy, the Presidencies of Bombay and Madras were made subordinate to Governor General and his council. A Supreme Court of judicature consisting of one chief justice and three other judges was created. The servants of the Company were forbidden to engage in private trade, accept presents or bribes, etc. Chief clauses The actions of public servants of the Company in their official capacity were exempted from jurisdiction of Supreme Court. The Supreme Court was to have jurisdiction over all the inhabitants of Calcutta and was to administer the personal law of all the dependent. This court has to the religious and social customs and wages of the Indians while enforcing its decrees and processes. The Government was also to keep these in mind while making rules and regulations. Appeals could be taken from provisional courts to Governor General and its council that was to be the final court of appeal. The rules and regulations made by the Governor General in council were not be registered with Supreme Court. Chief clauses The commercial and political functions were now separated. For the supervision of civil, military and revenue matters a Board of Council consisting of six members was setup in England. A secret committee of three Directors was to transmit the orders of the Board to India. The Court of Proprietors lost the right to rescind, suspend or revoke any resolution approved by Board of Directors. The members of Governor General's were to be three instead of four. The Company was asked to follow the policy of non-intervention . The Presidencies of Bombay and Madras were made subordinate to Governor-General-In-Council of Bengal in all matters of diplomacy,war and revenue. Only covenant members of the Company were to be appointed members of Council of Governor-General. Impact This Act gave British Government a measure of control over the Company's affairs. In fact, the Company became a subordinate part of the State.

Amending Act, 1781

Pitt's Act,1784

The Act of 1786 Major clauses

Governor-General was made Commander-in-Chief

Charter Act 1792

Major clauses The salaries of members of Board of Control and other functionaries of the Company were drawn from the Indian exchequer. The Governor-General and Governors could override the decisions of their respective councils. The Company got monopoly of trade with India for another twenty years. The Governor-General was given a greater control over presidencies of Madras and Bombay. The Commander-in-Chief was not be a member of Governor-General's council.

Charter Act, 1813

Major clauses Monopoly of trade with abolished, but trade with China and trade in tea continued. The Company was given a further period of twenty years to posses Indian territories and revenue without prejudice to sovereignty of British Crown. Separate accounts were to be kept regarding commercial transactions and territorial revenues. It was laid down that Company would spend rupees for education of Indians every year in the British territories of India. Christian missionaries were also permitted to preach their religion in India. Impact This made Company more an administrative body. The Constitutional position of the Company was explicitly defined for the first time. Major Clauses The Company was allowed another twenty years to administer British territories in trust for His Majesty, His Heirs and Successors. The Company lost its monopoly in China trade, and was asked to close its commercial business as early as possible. All restrictions on European immigration into India and acquisition of land and property by them were removed, legislating European colonization of India. The Governor-General of Bengal became Governor-General of British India; all powers, administrative and financial were centralized in the hands of Governor-General-In-Council. The Governments of Madras and Bombay were drastically deprived of their powers of legislation and left only with right of proposing to the Governor-General-In-Council projects of laws, which they thought expedient. The executive council of Governor-General was enlarged with the addition of fourth member (Law member) for the legislative purpose. With it began Indian Legislature. A law Commission was constituted for consolidating, codifying and improving Indian laws. The Act threw open to all, irrespective of place of birth, religion, descent and color, service under the Company. The Government of India was enjoyed to ameliorate the conditions of slaves and ultimately abolish slavery in India. Major Clauses The Act renewed the powers of the Company and allowed it to retain possession in Indian territories in the trust for the British Crown but not for a specified period. The salaries of the members of Board of Control, its secretary and other officers would be fixed by the British Government but would be paid by the Indian revenues of the Company. The Court of Directors were reduced from 24 to 18 of which six to be nominated by the Crown. The Court of Directors was dispossessed of its power of patronage as service was thrown open to competitive examination. The Court of Directors was empowered to constitute a new presidency alter the boundaries of the existing ones to incorporate the newly acquired territories. The separation of executive and legislative functions of Government of British India progressed with six

Charter Act, 1833

Charter Act,1853

additional members for legislative purposes. The law member was made a full member of the GovernorGeneral's Executive Council. Questions could be asked and policy of Executive council could be discussed though the Executive Council could veto a bill of the legislative Council. Discussions in the legislative council became oral instead of writing. Bills were to referred to the select committees instead of a single member, and the legislative business conducted in public instead of in private. The Governor-General was relieved from the duty of administering Bengal; a separate Governor was appointed for Bengal.

Government of India, Act 1858

Major Clauses The Governor-General came to be called viceroy from then onwards. It marked the end of Company's rule in India and transferred power to the British Crown; dual government introduced by the Pitt's Act was abolished. The powers of crown were to be exercised by the Secretary of State for India, assisted by a Council of fifteen members(known as Council of India). The Council was composed of people exclusively from England, some of whom were the nominees of the Crown, while others were the representatives of the Directors of East India Company. The Secretary of the State was to be responsible to the British Parliament, governed India through GovernorGeneral assisted by an Executive Council, which consisted of high officials of the Government. Features The administration of the country was not only unitary but rigidly centralized. Though the territory was divided into provinces with a Governor or Lieutenant-Governor aided by his Executive Council at the head of each of them, the Provisional Governments were mere agents of the Government of India and had to function under the superintendence, direction and control of the Governor-General in all matters relating to the government of the province. There was no separation of functions, and all the authority for the governance in India-civil and military, executive and legislative- was vested in Governor-General-In-Council who was responsible to the Secretary of the State. The control of the secretary of state over Indian administration was absolute. The act vested him the 'superintendence, direction and control of all acts, operations and concerns, which in any way related to Government or revenues of India'. Subject to his ultimate responsibility to the British Parliament he wielded the Indian administration through the Governor-General as his agent and his was the last word, weather in matter of policy or of details. The entire machinery of administration was bureaucratic, totally unconcerned about public opinion in India. Main Clauses Fifth member (a gentleman of legal profession) was added to the Viceroy's Council. The Viceroy was empowered to to make the rules for the convenient transaction of the business in the Council. This power was used by Lord Caning to introduce the portfolio system in Government of India. For the purpose of legislation the Viceroy's Executive Council was expanded by addition of not less than six members and not more than twelve additional members, not less than half of whom were to be non officials. The legislative powers were restored to Bombay and Madras Presidencies, but no law passed by the provisional council was valid until they received assent of the Governor-General. The Governor-General was empowered to, in cases of emergency, to issue without the concurrence of the legislative council, ordinances which were not remain to be in force for more than six months. Features The legislative councils were neither deliberative nor representative in any sense.

Indian Councils Act, 1861