23671_7253.

doc
adda247.com/e-books

1 Adda247 Publications For More Study Material

Visit: adda247.com

1/9
2 Adda247 Publications For More Study Material
Visit: adda247.com
POLITY
CONSTITUTIONAL DEVELOPMENT-1
OVERVIEW
• Introduction – What is a constitution?
• Why do we need a constitution?
• Constitutionalism
• Constitutional development of the Indian Constitution
WHAT IS CONSTITUTION?
• Though there is no single definition of Constitution, still following are the general
understanding of it.

2/9
• ‘Constitution’ is a compact document that comprises a number of articles about the
state, specifying
how the state is to be constituted and what norms it should follow.
o In some countries, like, UK, they do not have one single document that can be called as
constitution. Rather they have a series of documents and decisions that, taken
collectively,
are referred to as the constitution.
• Constitution is Fundamental law of the land.
• “Legus legum” - law of all laws
• Fundamental law in accordance with which a nation/state is governed.
• Constitution gives us the framework of polity, the so-called ‘Trinity’ of our state-
Legislature,
Executive and Judiciary.
• Constitution provides the norms that govern the relationship within the trinity.
• Determines the relationship between the state and the citizens.
• It is not a static document. Constitution is an organic one. It GROWS through:
o Amendments
o Judicial interpretations
o Conventions (not written or codified, non-punishable by law if it’s violated)- like in UK
o Statutes or laws made by the Legislature
WHY WE NEED A CONSTITUTION?
1. Constitution allows coordination and assurance: A constitution provides a set of basic
rules that
allow for coordination amongst members of a society.
2. Specification of decision making powers: A constitution specifies who has the power to
make
decisions in a society. It decides how the government will be constituted.
3. Limitations on the powers of government: A constitution sets some limits on what a
government can
impose on its citizens. These limits are fundamental in the sense that government may
never trespass
them.
4. Aspirations and goals of a society: A constitution’s purpose is to enable the
government to fulfil the
aspirations of a society and create conditions for a just society.
5. Fundamental identity of a people: a constitution expresses the fundamental identity of
a people.
This means the people as a collective entity come into being only through the basic
constitution. It is
by agreeing to a basic set of norms about how one should be governed, and who should
be governed
that one forms a collective identity. It showcases our ideals and aspirations as also our
conflicts. It
creates and reflects an Indian identity and conveys as to what it means to be an Indian
6. What ‘birth certificate’ is to a child, constitution is to a country.

3/9
3 Adda247 Publications For More Study Material
Visit: adda247.com
7. Constitution is a common normative home for the diverse elements of Indian society. It
is a set of
basic rules for minimum co-ordination between various sections. E.g.- ‘Dhamma’ of
Ashoka and ‘DIN-
I-ILLAHI’ of Akbar.
8. It imposes legally enforceable restrictions on the state. It also gives legitimacy to the
state and its
actions.
9. A written constitution is essential for a federal set up.
CONSTITUTIONALISM

4/9
• A system of government based largely on the ideals of western liberal democracy, the
essence of
which is restrictions and limitations on the absolute powers of the state. It is envisaged in
the
writings of J.S. Mill, Dicey, James Madison, Montesquieu etc.
Components of Constitutionalism
1. Rule of Law: “All manner of people is equally subject to the ordinary law of the land as
administered through ordinary courts". It was given was Dicey.
Exceptions:
• Existence of quasi-judicial bodies outside the regular courts. e.g.-administrative
tribunals.
• Provisions for affirmative action (Reservation).’
o Affirmative action is a term coined by J.F. Kennedy.
• Art-361: immunity to President and governor from criminal proceedings.’
o The provision also carries potential to abuse as was alleged in the case of Sheila Dixit
being
appointed as governor of Kerala. Also, Rajasthan's Governor, Kalyan Singh in Babri
Masjid
case.
o Immunity from criminal prosecution is western idea taken from British constitutional
philosophy.
• Diplomatic immunity to foreign consular.
• Section 499 of IPC deals with ‘defamation’ by speech (slander) and by words (Libel).
o Exception to this is Article -105: immunity against section 499 of IPC given to legislators
with
respect to anything said on the floor of the house.
o Article –105: Members of the Parliament,
o Article -194: Members of the State Legislature.
2. Absence of arbitrary power: Constitutionalism abhors absolutism. Delegation of the
powers must
be complimented with appropriate norms guiding its use and safeguards to prevent its
abuse.
3. Constitution is the consequence, not the source of rights
• It implies that people can enjoy un-enumerable rights as well. (USA)
• But, this dictum is not largely followed in Indian constitutional philosophy.
• Indian constitution is uncomfortable with the idea of customary rights or rights outside
the
constitution and statutes.
o e.g. in India, only after FRA, 2006, tribal acts were recognized.
o Earlier flying of drones were not allowed. After Dec 2018, it is allowed for commercial
use only, with sets of restriction imposed by Ministry of Civil Aviation.
4. Separation of powers: Functional separation into the Trinity- Legislature, Executive and
Judiciary.
Benefits-
• It preserves democracy and civil liberties

5/9
• It promotes division of labour, specialisation and efficiency.
• It institutionalises the system of checks and balances.
• It promotes debates and constructive friction between the 3 organs often leading to a
better decision.

4 Adda247 Publications For More Study Material

Visit: adda247.com
5. Grant of basic civil rights.
6. Free press and media.
7. Temporariness of the government (elected every 5 years)
8. Independent Judiciary.
Conclusion of Constitutionalism
• Right to life, liberty, expression, residence etc., can also be considered as the

6/9
components of
constitutionalism.
• The western idea of constitutionalism is negative in orientation as it principally seeks to
restrict, limit
and disempower the state.
• Ideally, the state must also be empowered adequately to enable it to deliver on the
governance
agenda.
• Thus, the right balance has to be struck between the needs of checking operation and
preventing
chaos in the society.
CONSTITUTIONAL DEVELOPMENT IN INDIA
Company Rule (1773-1858) Crown Rule (1858-1947)
1. Regulating Act – 1773
2. Jurisdiction Act – 1781
3. Pitts India Act – 1784
4. Act of 1786
5. Charter Act of 1793
6. Charter Act of 1813
7. Charter Act of 1833
8. Charter Act of 1853
1. The Government of India Act – 1858
2. Indian Councils Act – 1861
3. Indian Councils Act – 1892
4. Indian Councils Act – 1909
5. Government of India Act – 1919
6. Simon Commission – 1927
7. Communal Award – 1932
8. Government of India Act – 1935
9. Indian Independence Act – 1947
COMPANY RULE (1773-1858)
1. Regulating Act of 1773
Significance
• This was the first step taken by British Government to control and regulate the affairs of
East India
Company in India.
• The political and administrative functions of the company were recognized for the first
time.
• It laid the foundation for central administration in India.
Features
• Governor of Bengal was designated as the Governor General of Bengal (Fort William)
• Governors of Bombay and Madras became subordinate to the Governor General
• Executive Council of 4 members was formed to assist Governor General
• Supreme Court established – Lord Impey was the first chief justice of Bengal
• Officers were prohibited from private trade or accepting bribe

7/9
Facts
• First Governor General – Warren Hastings
• Supreme Court had one chief justice and three judges
• The court heard cases with the help of Jury of British subjects
• The Court of Directors (24) had to submit report on its Revenue - civil and military

5 Adda247 Publications For More Study Material

Visit: adda247.com
2. Jurisdiction Act of 1781
Features
• Exempted public servant’s actions done during official capacity from scrutiny of
Supreme Court
• Jurisdiction over inhabitants of Calcutta and administer personal law of defendant

8/9
• Supreme court to consider religions and social customs while enforcing decrees
• Appeal from provincial court to Governor General-in-council is final for cases less than
5000 pounds
o If it is more than 5000 pounds then appeal is sent to King-in-Council
3. Pitts India Act of 1784
Significance
• For the first time, company’s territory in India was called as British possessions in India
• British government got complete control over company’s affairs and its administration
Features
• Demarcated the political and commercial functions of the company
o Commercial affairs to be managed by the Court of Directors
o Political affairs to be managed by a newly formed Board of Control
o Board of Control can supervise the operations of the government and revenue
• Executive council’s members were decreased from 4 to 3
4. Act of 1786
Features
• To convince Cornwallis to accept the Governor-Generalship (by Pitt)
• Governor General got powers to override his council is extraordinary cases on his own
responsibility
5. Charter Act of 1793
Features
• Company’s privileges extended to 20 years
• Power to override council by Governor General was extended to all future Governor
Generals and
Governors
• All the members salary was to be paid from Indian Revenue (practiced up to 1919)
• Permission for East India Company to ship opium from India to China
• Country privileges given to the officials of East India Company to trade outside India
6. Charter Act of 1813
Features
• Monopoly ended except for tea trade and trade with China
• Allotted one lakh annually for education and improvement of literature and Science etc.
• Christian missionaries allowed to preach in India
7. Charter Act of 1833
Significance
• Came in the wake of Industrial revolution and liberal principles in England
• The Act created for the first time, a government of India having authority over the State
territorial
area possessed by the British
Features
• Governor General of Bengal was designated as Governor General of India

9/9