August 12, 2009

Constitutional Development in India

In 1773, the British Parliament enacted the Regulating Act, 1773, whereby the Governor of Bengal was designated as the Governor-General and made the supreme head of all the Presidencies. At about the same time, the legislative power in the Presidencies was also recognized.

The Charter Act of 1833, provided for the addition of a fourth member to the Governor-General in Council for the sole purpose of Legislation, and concentrated all the legislative powers in the Governor-General-in Council. It deprived the local government (Presidencies) of their power of independent legislation. The Presidency Governments were authorised merely to submit drafts or projects of any laws regulations deemed expedient or necessary to the Governor-General-in Council.

The Charter Act of 1853, which marked the next stage in the evolution of the Legislatures, made the Law Member of the Governor- in-Council a full member and enlarged the Governor-General's Council for legislative purposes by the addition of the Chief Justice of Bengal, one other Supreme Court Judge and one paid representative of each Presidency or Governor's Province. In all the Governor-General-in Council consisted of 12 Members. This enlarged Council paved the way for establishing the first Legislative body in India . From 1833 to 1861, the Governor General in Council was the sole administrative as well as the Legislative authority.

The Indian Councils Act of 1861 constituted a great landmark in the growth and development of the Legislatures. The Act for the first time associated with the Governor-General's Executive Council and the Executive Councils of Madras and Bombay, a small number of additional members half of them being non-officials and provided for the addition of not less than six and not more than 12 nominated members to the Governor-General's Council and the functions of the new Legislative Council were limited wholly to legislation. This Act restored the legislative power taken away by the Charter of 1833. The Legislative Council of the Madras Presidency was given the power to make laws for the "peace and good government." The Council of the Governor of Madras was enlarged for the legislative purposes by the addition of the Advocate -General and four to eight adhoc members of whom atleast half were to be non-officials nominated by the Governor for a period two years. The Act thus sowed the seed for the future Legislative as an independent entity separate from the Executive Council. The Provincial Legislative Councils established were mere advisory bodies by means of which Government obtained advice and assistance. The Provincial Legislative Council could not interfere with the laws passed by the Central Legislature.

The next milestone in the evolution of the Legislatures was reached when the Indian Councils Act of 1892 was passed by which the number of additional members of the Central Legislature was raised to a maximum of 16 and the number of additional members of the Madras Legislative Council was raised to a maximum of 20, of which not more than nine had to be officials. Non-official Members were recommended by the district boards, universities, municipalities and other associations. This Act enlarged the functions of the Council in two respects, namely, the Council could discuss the annual financial statement and ask questions subject to certain limitation. Members were to hold office for two years.

The seed sown by the Act of 1861 was quickened into life by the Act of 1909, popularly known as Minto-Morely Reforms. The Act still further enlarged the Legislative Councils both of the Governor-General and of the provinces. It introduced for the first time the method of election, though not direct election, and thus helped to quicken into life the seed of representative institutions. It dispensed with official majorities in the Provincial Legislative Councils and gave them power to move resolutions upon matters of general public interest and also upon the Budget and to ask supplementary questions. The additional members of the Governor-General Council were increased from 16 to a maximum of 60 and those of the Madras Council from 20 to a maximum of 50. Thus the Act carried constitutional development a step further.

The Government of India Act of 1919, which embodied the Montagu-Chelmsford Reforms is but the natural and inevitable sequel to the long chapter of previous Parliamentary Legislation on the introduction of Representative Government in India with Legislatures composed of elected representatives of the people. The most important feature of the Act was the introduction of the system of dyarchy in the Provinces. Subjects were classified as Central and Provincial and in regard to provincial matters a further division was made into "transferred subjects" administered by the Governor and his ministers responsible to the Legislative Council and "reserved subjects" administered by the Governor and his Executive Council. The Governor could override both the Ministers and the Executive Council. The proportion of elected members of the Provincial Legislative Council was raised to over 70 per cent. The Legislative power of the Council extended to Provincial matters only. Every law of the Provincial Legislature for its validity required the assent of Governor-General as well as the Governor. The Governor could not be a member of the Legislative Council, but he could address the members in the Legislative Council. The Governor appointed the Speaker of the Legislative Council for the first four years and thereafter the members of the Legislative Council elected the Speaker. However, the Deputy Speaker of the Legislative Council was elected by the members of the Legislative Council and the appointment ratified by the Governor.

In the Centre, however, the principle of responsible Government was not introduced. The Central Legislature thereafter called the Indian Legislature was reconstituted on enlarged and more representative character. It consisted of the Council of State consisted of sixty members of whom 34 members were elected and the Legislative Assembly consisted of about 145 members, of whom about 104 were elected and the rest nominated. Of the nominated members about 26 were officials. The powers of both the Chambers of the Indian Legislature were identical except that the power to vote supply was granted only to the Legislative Assembly.

Although this Act brought about representative Government in India, the Governor was empowered with overriding powers. If he considered that any Bill, which was to be introduced or already introduced, would endanger the security or disturb peace and tranquility in any part of the province he could reject the bill. Similarly, if the members of the Legislative Council decided to reject a bill relating to the reserved subjects or the recommendations of the Governor, the Governor could certify that such a bill was very essential for the functioning of the Government and then the Bill was deemed to have obtained the sanction of the Legislative Council.

The Madras Legislative Council

The Madras Legislative Council was set up in 1921 under the Government of India Act 1919. The term of the Council was for a period of three years. It consisted of 132 Members of which 34 were nominated by the Governor and the rest were elected. It met for the first time on the 9th January 1921 at Fort St. George, Madras. The Council was inaugurated by the Duke of Cannaught, a paternal uncle of the King of England, on the 12th January 1921 on the request made by the Governor Lord Wellington. The Governor addressed the Council on the 14th February 1921. The Second and Third Councils, under this Act were constituted after the general elections held in 1923 and 1926 respectively. The fourth Legislative Council met for the first time on the 6th November 1930 after the general elections held during the year and its life was extended from time to time and it lasted till the provincial autonomy under the Government of India Act, 1935 came into operation.

Bi-Cameral Legislature

The Government of India Act 1935, marked the next great stride in the evolution of the Legislatures. The Act provided for an All-India Federation and the constituent units of the Federation were to be the Governor's Provinces, and the Indian States. The accession of the State to the Federation was optional. The Federal Legislature was to consist of two Houses, the House of Assembly called the Federal Assembly and the Council of States. The Federal Assembly was to consist of 375 members, 125 being representatives of the Indian States, nominated by the Rulers. The representatives of the Governor's provinces were to be elected not directly but indirectly by the Provincial Assemblies. The term of the Assembly was fixed as five years. The Council of State was to be a permanent body not subject to dissolution, but one-third of the members should retire every three years. It was to consist of 260 members. 104 representatives of Indian States, six to be nominated by the Governor-General, 128 to be directly elected by territorial communal constituencies and 22 to be set apart for smaller minorities, women and depressed classes. The two Houses had in general equal powers but demands for supply votes and financial Bills were to originate in the Assembly.

The Act established a bi-cameral Legislature in the Province of Madras as it was then called and provided for responsible Government subject to two limitations, namely, (1) special responsibilities were given to the Governor in regard to certain matters save as regards Finance and (2) certain matters were placed entirely outside ministerial control and within the absolute discretion of the Governor.

The Legislature consisted of the Governor and the two Chambers called the Legislative Council and the Legislative Assembly. The Legislative Council was a permanent body not subject to dissolution but as nearly as one-third of the members thereon retired every three years. It consisted of not less than 54 and not more than 56 members composed of 35 general seats, 7 Mohammedan seats, 1 European seat, 3 Indian Christian seats, and not less than 8 and not more than 10 nominated by the Governor. The Legislative Assembly consisted of 215 members of which, 146 were elected from general seats of which 30 seats were reserved for Scheduled Castes, 1 for Backward areas and tribes, 28 for Mohammedans, 2 for Anglo-Indians, 3 for Europeans, 8 for Indian Christians, 6 for representatives of Commerce and Industry, etc., 6 for Landholders, 1 for University, 6 for representatives of labour, 8 women of which, 6 were general.

The Act made a division of powers between the Centre and the Provinces. Certain subjects were exclusively assigned to the Central or Federal Legislature, others to the Provincial Legislatures and in regard to another field, the two had concurrent powers.

The Federal structure contemplated in the Act did not come into being and so the Government of India Act, 1919, continued to be in force as far as the Central Legislature was concerned.

Although the Government of India Act was passed in 1935, only that part relating to the Provinces came into operation in 1937. The first Madras Legislative Assembly under this Act was constituted in July 1937 after general elections. The Congress party in the Legislature formed the Government. The Ministry however resigned in October, 1939 due to the proclamation of emergency on account of world war-II and the Legislature ceased to function. After the war was over, the General Elections were held in March, 1946 under the Government of India Act, 1935. The first Session of the Second Legislative Assembly under the Government of India Act, 1935 constituted in 1946, met on the 24th May 1946. After prolonged negotiations, the British transferred power under Lord Mountbatten Plan and the Indian Independence Bill was presented to the British Parliament on July 4th 1947 and was passed by the Parliament on July 18th 1947 and the transfer of power took place on 14/15 August, 1947.

The Indian Independence Act 1947, constituted the culmination of the origin and growth of the Indian Legislatures from modest expansions of the Executive Councils of the Governor-General and the Governors in the Provinces into separate sovereign legislative bodies. The Act created two independent Dominions in India known respectively as India and Pakistan. The paramountry of the British Crown lapsed and the power of the British Parliament to legislate for India ceased. The federal Legislature of India became sovereign and the power of the Legislature became exercisable by the Constituent Assembly which was not subject to any limitation whatsoever. Until the new Constitution was framed, the Government of India Act of 1935, subject to certain adaptations and modifications, remained the Constitutional Law of India. The Constitution of India came into force with effect from 26th January 1950 and the existing Legislature was allowed to function as provincial Legislatures.


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