Dyarchy has been derived from the Greek word 'di-arche', means double rule and the object of the Dyarchy was to train the natives in the act of self-Government

Constitutional Law - I Notes

Introduction to the Constitution

Definition and Core Principles

A constitution serves as the cornerstone of governance and societal order. It is a foundational document that defines a nation's political, legal, and administrative systems.
It embodies principles guiding the relationship between the state and its citizens.
It delineates the separation of powers among different branches of government.
It safeguards individual rights against arbitrary state actions.
The constitution is more than just a legal document; it is a manifestation of a society's collective aspirations, cultural values, and historical experiences.

Dual Role: Legal Charter and Social Contract

A constitution functions both as a legal charter and a social contract.
Legal Instrument: It provides the structural foundation for government institutions, defining their powers, limitations, and interactions.
Social Contract: It reflects the will of the people, balancing diverse interests while aspiring to unity and justice.
Constitutions are dynamic and evolve with society to remain relevant and effective.
The interplay between enduring principles and adaptive capacity underscores its importance as a living document.

Evolution and Origins

Examining the origins and historical evolution of a constitution is crucial to fully grasp its significance.

Types of Constitutions

Classification Criteria

Constitutions can be classified based on various criteria, including their form, origin, and flexibility.

1. Written and Unwritten Constitutions

Written Constitution

A written constitution is a formal, codified document outlining the structure, powers, and functions of government and the rights of citizens.
Examples include the United States Constitution and the Indian Constitution.

Unwritten Constitution

An unwritten constitution consists of customs, conventions, and legal precedents rather than a single codified document.
The United Kingdom serves as a prime example, where statutes, judicial decisions, and conventions collectively form the constitution.

2. Rigid and Flexible Constitutions

Rigid Constitution

A rigid constitution requires a special and often complex procedure for amendments, ensuring stability but hindering adaptation to changing circumstances.
Example: The U.S. Constitution requires a two-thirds majority in Congress and ratification by three-fourths of the states to amend.

Flexible Constitution

A flexible constitution can be amended through the regular legislative process, making it more adaptable.
Example: The United Kingdom's unwritten constitution is inherently flexible.

3. Federal and Unitary Constitutions

Federal Constitution

In a federal system, the constitution divides power between the central government and regional or state governments.
Both levels derive their authority from the constitution, and neither can unilaterally alter the distribution of powers.
Examples: The constitutions of the United States, India, and Germany.

Unitary Constitution

In a unitary system, all powers are concentrated in the central government, which may delegate authority to local governments at its discretion.
Examples: The constitutions of France and Japan.

4. Monarchical and Republican Constitutions

Monarchical Constitution

In a monarchy, the head of state is a monarch, and the constitution may grant them significant powers or restrict them to ceremonial roles.
Example: The Constitution of Saudi Arabia grants significant authority to the monarch, whereas the British Constitution limits the monarch's role to a symbolic one.

Republican Constitution

In a republic, the head of state is elected, either directly or indirectly, and serves for a limited term.
Examples: The constitutions of India and the United States.

5. Presidential and Parliamentary Constitutions

Presidential Constitution

This system features a strong executive branch headed by a president who is both the head of state and government.
The president is elected independently of the legislature.
Example: The United States Constitution.

Parliamentary Constitution

In this system, the executive derives its legitimacy from the legislature and is accountable to it.
The head of government (prime minister) and the head of state are usually separate.
Examples: The constitutions of India and the United Kingdom.

6. Democratic and Authoritarian Constitutions

Democratic Constitution

A democratic constitution ensures that power is derived from the people through regular, free, and fair elections.
It guarantees fundamental rights and the rule of law.
Examples: The constitutions of India, Germany, and Canada.

Authoritarian Constitution

In an authoritarian system, the constitution often concentrates power in a single authority, limiting political freedoms and citizen participation.
Example: The Constitution of North Korea centralizes authority in the ruling party.

History of Indian Constitutionalism

Early British Influence (1600-1661)

East India Company

The constitutional history of India begins with the arrival of the East India Company in 1600.
The British came to India as traders attracted by its wealth.
Enterprising merchants of London formed the company, securing a charter from Queen Elizabeth in December 1600.
The charter settled the company's constitution, powers, and privileges.
The initial Charter of 1600 focused on trade to compete with the Portuguese and Dutch.
It laid the foundations for British governance in India, though initially not intended for British rule.
The charter contained provisions necessary for the constitution of a government, granting the company the power to trade and make reasonable laws and ordinances.
Factories were given the power to make reasonable laws and impose punishments.
The management of the company was vested in a Governor and 24 members, authorized to organize and send trading expeditions.
The charter granted the company a monopoly of trade with the East and the authority to maintain an armed naval force for security.
The initial charter was granted for 15 years and terminable on two years' notice, renewable dependent on the Crown’s and people’s interests.
The legislative power conferred was limited, with punishments restricted to fines, forfeitures, and imprisonment.
The company's laws could not contradict English laws and customs, preventing fundamental deviations from English legal principles.
The charter did not explicitly confer legislative power for territorial governance, as the company was primarily viewed as a commercial enterprise.

King's Commission

The company found its legislative power inadequate for maintaining discipline among its servants during long voyages.
It lacked the authority to adequately punish serious offenses, leading to lawlessness and disorder.
The company invoked the Crown's prerogative to secure commissions for commanders, empowering them to inflict capital punishment for offenses like murder or mutiny.
The first such commission was issued by Queen Elizabeth.
In February 1616, a trial was held on board the ship Charles at Surat port, where Gregory Lellington was convicted and condemned to death for killing an Englishman.
This is the earliest available record of a trial held on Indian shores during the Company's regime.
King James I conferred a general power to issue commissions to captains, subject to the proviso that capital offenses required a jury of twelve Company's servants.

Charter of 1661

The Charter of 1661 conferred broad powers on the Company to administer justice in its settlements, significantly influencing the evolution of India's judicial system.
The Company requested powers to enforce obedience among Englishmen and punish offenders according to English laws.
Charles II granted a new Charter in 1661, authorizing the Governor and Council of each factory to judge all persons in civil and criminal matters according to English laws.
In places without a Governor, the chief officer and council were to send offenders to places with a Governor and Council or to England for punishment.

Charter of 1668

Originally, the Islands of Bombay were part of indigenous empires like the Shilahara Dynasty and the Kingdom of Gujarat.
In 1534, the Portuguese acquired the Islands of Bombay from the Sultan of Gujarat, Sultan Bahadur.
King Afonso IV of Portugal transferred the ownership of the Islands of Bombay as a dowry to King Charles II for marrying his sister Princess Catherine of Braganza in 1661.
Later, in 1668, King Charles II transferred the ownership of the islands to the East India Company for an annual rent of £10 (pounds).
This transfer was formalized through the Charter of 1668, providing the company with the power to make laws and ordinances in accordance with English laws for the good governance of the Islands.
The company was also allowed to impose any kind of punishment to ensure that the law was being observed.
The power for enacting laws was vested in the General Courts or their Court of Committees, and the laws had to be listed under the Company seal before publication.

Shortcomings of the Charter of 1661

The Charter of 1661 did not separate the judiciary from the executive, with the Governor and Council acting as both.
The Governor and the members of the council were merchants and not lawyers, lacking knowledge of English law and hindering proper justice administration.

Charters of 1683 and 1686

Under the charter of 1600, the East India Company got exclusive trading rights in India but these rights were being infringed by other British traders.
Piracy was a rampant issue on the high seas, and to deal with this problem a court having jurisdiction to deal with traders and pirates was needed to be formed therefore the Charter of 1683 was given by King Charles II to the company.
The Charter of 1683 authorized the company to establish Courts of Admiralty.
The Court of Admiralty had jurisdiction to hear and decide all mercantile and maritime cases concerning persons within the Charter limits of the company.
Under this Charter, the company was to hear all cases relating to forfeiture of ships, piracy, trespass, injuries, and wrong.
The court was to consist of a person who was learned in civil law and two merchants who would be appointed by the company and would decide cases in accordance with the rules of equity and good conscience and laws and customs of merchants.
It was authorised to settle its procedure but it had to follow the orders of the British Crown in relation to its procedures.
The Charter of 1686 which was granted by James II in April repeated the provisions of Charter 1683 with certain modifications.
The Charter of 1686 empowered the company to execute martial law to defend their ships from trespassers. The company could also appoint naval officers and maintain naval forces.

Charter of 1726

Before 1726, judicial administration in the East India Settlement was not of a high order.
There was no separation between judicial and executive powers.
The judicial system was not uniform across all settlements; the courts received authority from the East India Company, not the British Crown.
The courts were supposed to use English law but were unable to do so because they were laymen and had no knowledge of the law.
Cases related to testamentary and intestate succession did not fall under the jurisdiction of any courts in the East India Settlement.
Due to the amounts being asked from the Indians, most of the workload fell on the Crown’s Privy Council.
To maintain law and order in the Indian presidency towns (Bombay, Madras, and Calcutta) and to bring about a uniform judiciary system, the Charter of 1726 was introduced by King George I on 24 September 1726.
According to this Charter, each of the three presidencies had to form a corporation, consisting of a Mayor and nine Aldermen.
The corporation was to consist of a Mayor and nine Aldermen.
Both the Mayor and seven Aldermen had to be natural-born Britain subjects and the other two Aldermen could be subjects of friendly Prince or State.
The First Mayor and the Aldermen would be nominated by the Charter and thereafter the nomination of the mayor would be done by the Aldermen and the retiring Mayor on an annual basis amongst the Aldermen.
The Aldermen could continue in office throughout his life or as long as he lived in the presidency town.
The vacancy among the Aldermen was filled by the Mayor and the Alderman from the inhabitants in the particular presidency town.

Establishment of Mayor Court

According to the Charter of 1726 the mayor court was to be established in each presidency town.
The members of the Mayor Court included the Mayor and the Aldermen of the Corporation of the Presidency Town.
The quorum was constituted by the Mayor or the Senior Aldermen along with two other Aldermen.
The Mayor Court was to be the Court of record. Under the Charter of 1726, the Mayor Court could hear all civil cases arising in the Presidency Town and its subordinate factories.
The appeals of the Mayor Court would be heard by the Governor and Council in cases for less than 1000 pagodas and the appeals from the Governor and Council were heard by the King in Council (The Crown’s Privy Council)

Regulating Act of 1773

The company transitioned from trade and commerce to political matters and territorial gains.
In 1759, Lord Clive suggested that the Crown should take or exercise control of the Company's territories while allowing it to remain undisturbed.

Need for the Enactment:

The dual form of administration instituted by Robert Clive was complicated and troublesome for the people of India.
Under this system, the company had Diwani rights in Bengal, and the Nawab had Nizamat rights (judicial and policing rights).
Nizamat rights were effectively controlled by the company, with the Nawab acting as an agent.
This led to exploitation by both the Nawab and the company.
The Bengal famine caused severe economic decline, social unrest, and long-term instability.
The company requested a loan of £1 million from the British government in 1772 due to a financial crisis by 1773.
The British Parliament sought to end the company’s growing influence after it started acquiring territories and acting like a ruling body.

Salient features of the Regulating Act, 1773

Election for directors
The Regulating Act introduced important changes to the companies constitution in England.
Under Section 6, directors were elected for a four year term, with one-quarter of them retiring each year. Retiring directors were also ineligible for re-election.
Control over correspondence
The director was required to present the correspondence of civil and military matters with the Indian authorities; this was done with the main purpose of asserting all the powers from parliament to the company.
All revenue-related matters in India had to be submitted to the treasury in England to ensure the crown’s oversight
Governor-General and Council
Under Section 8 and Section 9, in Calcutta, a Governor-General and Council inclusive of four councillors were selected.
All the decisions of the Council were taken by the majority opinion.
In cases of equal division, the Governor-General, and in his absence, the most senior councillor, would have a casting vote.
Control of Madras and Bombay
The governments of the Madras and Bombay presidencies were subject to the authority of the Governor-General and the Council, which meant they could not engage in hostilities, declare war, or conclude peace treaties with any Indian Princes without prior consent from the Governor-General and the Council.
However, in cases of emergencies, imminent necessity, or specific orders from the company, this requirement for prior consent could be waived.

Legislative power of the Council

The Governor-General and Council were vested with the power to make any regulations, rules, and ordinances that they thought justified and fair for the good governance and maintenance of Calcutta.
In case of breach of any such rules, they could impose punishments.

Establishment of the Supreme Court of Judicature

Section 13 outlines provisions for the establishment of the Supreme Court in Calcutta, authorised by King George II.
This section granted the crown the power to create a Supreme Court of Judicature at Fort William in Calcutta through the Charter of 1774.
The object behind making this provision was to eradicate the flawed conditions of the judiciary as it operated.
The Supreme Court is composed of a Chief Justice and three Puisne judges, all of whom must be barristers with at least 5 years of experience.

Pitt's India Act, 1784

Pitt's India Act was passed in August 1784 to remove defects in the Regulating Act.
Its essential plan was the same: the Company's public affairs and its administration in India were to come directly under supreme control of the British Government.
The Act established a Board of Control consisting of six commissioners, including two Cabinet ministers, to guide and control the work of the Court of Directors and the Government of India,
They were to control all matters of civil and military Government of the British territories in India,
The Act established the principle that the government of India be placed under the Governor General and a Council of three, so that if only one member of the Council supported him, he could have his way.
The Governor General was given a casting vote.
The Act clearly stated that the Presidencies of Madras and Bombay were to be subordinate to the Presidency of Bengal in all matters of war, diplomatic relations and revenue.
The Governor General and council were made subordinate to British Government.
They were forbidden to declare war and enter into any treaty without the sanction of the directors or the secret committee.

Charter Act of 1813

The Charter of 1813 extended the rule of The East India Company in India.
One of the biggest changes was that the monopoly of the Company in India was ended.
A grant of 1 lakh rupees was decided for the revitalisation of Indian literature, propagation of science, and education of the Indians under their rule.
The charter further solidified the existing control of the British government on India.
This was also the first time the Indians were introduced to the concept of Education as a responsibility of the state.

Charter Act of 1833

It was a period of liberalisation, and The House of Commons was aggressively making reforms.
the sentiments of the mercantile community and believed that the Comony must be abolished
The position of Governor-General in Council of Bengal was upgraded to Governor-General of India. Thus making it the most powerful legislative position in India.
The Charter also established the position of Law member, who was to assist the Governor-General and his Councillors.
In addition, the charter gave the Governor-General the right to establish the Indian Commission of Law which took charge of all the courts and police institutions in India.

Charter Act of 1853

Problems began occurring in both the legislative and the administrative systems.
This change caused administrative issues in Bengal as there were also territorial changes that occurred after teh 1833 charter.
The Company appointed two committees in 1852 to survey the affairs of the Company in India and based on these reports the Charter of 1853 was drafted and passed.
The charter renewed the legislative control of the Company on the Indian territories and the rights they had over the revenue from the same. But the commercial privileges that they had enjoyed through the previous charters were not renewed.
The charter brought about multiple changes in the legislative system. For the first time, executive functions were separated from the Governor-General’s legislative functions.
A six-member Legislative Council, called the Indian Legislative Council, was created.
These Councils were to follow the same functioning principles as that of the British Parliament.
While the right to veto bills that were passed by the Legislative Council in its legislative capacity was vested with the Executive Council.
The Law member who was, according to the previous charter, considered only a consultant to the Governor-General in Council was now made a full member of the Governor-General’s Executive Council.
The Council was also to include members from each Province.
The separation of the Executive and Legislative Councils introduced to the Indians the concept of a democratic parliamentary government system.
One of the biggest flaws in the Charter was that there were no Indian representatives in the Legislative Council.

Act of 1858

The outbreak of 1857 Sepoy Mutiny, as the first war of Independence was a shock to the British Government, who had to revise their policy of conquest and annexation and adopt a cautious and calculated policy of association and cooperation.
The Act of 1858 introduced various changes, assuring the native princes of their rights, dignity, and honor.
Liquidation of the East India Company: The Act resulted in the collapse of the East India Company and the transfer of control of Indian colonies to the British Crown.
Governance in the Name of the British Queen: The Act stated that the British Indian possessions would be administered in the name of Queen Victoria, who would later become Empress of India.
Scrapping of the Court of Directors and Board of Control: The powers
previously held by the Company’s Court of Directors were transferred to the Secretary of State for India, who was to be a member of the British Parliament and a member of the Prime Minister’s cabinet.
Introduction of the Secretary of State and Council: The Secretary of State for India was in charge of communication between the British and Indian governments.
Appointment of Governor-General and Viceroy: The Act established the positions of Governor-General and Viceroy, who functioned as the British government’s representative in India. To minimize problems, both jobs were united.
Establishment of the Executive Council: The Viceroy was to be helped by an Executive Council in carrying out British India’s administrative tasks.
Abolition of Dual Government and the Doctrine of Lapse: The Act repealed the Pitt’s India Act’s dual government system and removed the doctrine of lapse, which permitted the British to conquer states without a male heir.

Indian Council Act of 1861

The Indian Council Act of 1861 was of basic importance, bringing about the beginning of the representative institutions and providing India with the framework of Government which lasted up to the present time.
Under this Act, Indians were for the first time associated with the work of legislation.

Legislative power

The Act enlarged the Council of the Governor-General for the purpose of making laws and regulations by the addition of not less than 6 and not more than 12 'Additional members': half of these were to be non-official members.
The term of the office of these members was of two years.
The Legislative Council was given the power to frame laws and regulations for all persons.
The Act restored legislative powers to the Presidency Governments of Bombay and Madras.
The Governor-General's assent on every Bill passed by the Legislative Council was necessary and only then it could become an Act.
In addition to this, the Governor- General had the power to veto any Bill. He was also empowered to issue ordinances.
He had also power to alter the limits of the Provinces, Presidencies and territories.

Defects of the Act

It gave unlimited power to the Governor-General.
The non-official members had no right in the Governor-General's Council.
They could not ask questions and discuss the Budget.
Moreover, the non-official members were used to be native Princes or Zamindars.
They were not men of intelligence and had absolutely no interest in the legislation for India.
The political situation in India was very explosive.

Rise of Indian National Movement (1861-1892)

(1) inspirations of the political ideals of the West;
(2) religious revival and faith in the ancient glory of India;
(3) economic discontent and disappointment at the non-fulfilment of British promises;
(4) the influence of Indian press and the vernacular literature;
(5) the development of the means of communications and the holding of Imperial Darbars; and
(6) the increase in feeling of racial bitterness due to the arrogant and insolent attitude of the ruling race, the plundering administration of Lord Lytton and the display of violent temper and organised scurrilous propaganda carried on by Europeans and Anglo-Indians over the Illbert Bill.

Indian Councils Act of 1892

(a) it increased the number of members in the Central and Provincial Council,
(b) introduced the election systems partially,
and (c) enlarged the functions of the Councils.
The Governor-General's Council was to have not less than 10 and not more than 16 members.
He was empowered to make regulations for the nomination of additional members.
In Bombay and Madras the number was to be not less than 8 and more than 20.
The maximum for Bengal was fixed at 20 and for the North-West Provinces and Oudh at 15.
The Councils were to have power of discussing the budget and subject to certain restrictions to ask questions from the Government.
But the President of the Council had the power to disallow any question without giving a reason
Certain classes of people were over-represented while others had no representation at all, with limited power of Legislative Councils.

Morley Minto Reforms

The first attempt to introduce a representative and popular element was made by Morley-Minto Reforms, known by names of the Secretary of State (Lord Morley) and the Viceroy (Lord Minto) which were implemented by the Indian Councils Act, 1909.
By this Act, the size of Legislative Councils, Central as well as provincial, was considerably increased.
By the Act of 1909 the powers of the Legislative Councils, both Central and Provincial, were also enlarged.
Now the Councils were empowered to discuss any matter, ask questions and supplementary questions.
The Councils had also the right of discussing and moving a resolution on the financial statement but they were not given the power of voting, being viewed as divisive.

Montagu-Chelmsford Report

The Montagu-Chelmsford Report led to the enactment of the 1919 Government of India Act, failing to satisfy the aspirations of Indians as it didn't establish a Parliamentary system of Government.
Indian National Congress became very active during the time of the 1st World War and pressed for reforms.

Government of India Act, 1919

The declaration of responsible Government to the Indians where progress being done by the British Parliament.
Montagu and Chelmsford conferred the Indian Constitutional reforms, which came to be known as Montagu-Chelmsford Report or simply as Montford Report was published in July 1918.
The Government of India Bill was drafted and introduced in the British Parliament, becoming an Act in December 1919 based on this Act.

Main features of the 1919 Act

The Declaration promised a responsible Government and the Act introduced a system of Dyarchy in the Provinces, where the Indians were trained for self Government by double rule.
In matter of legislation subjects were divided into Central and Provincial where Provincial subjects were divided into