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Introduction to Indian ConstitutionLectures to I Year ML (Private Study) StudentsbyK. Ramanraj, M.L.Advocate, Madras High CourtLegal Adviser, University of Madrason8thand 9thApril, 2013atDepartment of Legal Studies, University of Madras
Syllabus● Historical Background● Nature of Indian Constitution● Salient Features of Indian Constitution● Preamble● Part III of the Constitution● Part IV of the Constitution● Fundamental Duties● Judiciary● Centre-State Relationship (Administrative & Finance)● Emergency Provisions● Amendments● Trade and Commerce
Nature of Constitutional LawThe Constitutional Law of a State is the Law relating to the Constitutionof that State● Law: Those rules of conduct which are enforced by the duly constituted Courtsof that State. It includes the complex inter relations between those laws aswell as the techniques – judicial precedent, statutory interpretation and so on -by which the law is administered● State: Independent political society occupying a defined territory, themembers of which are united together for the purpose of resisting externalforce and the preservation of internal order● Constitution: The system of laws, customs & conventions which define thecomposition and powers of organs of the State and regulate the relations ofthe various organs to one another and to the private citizen
Historical Background● Roots of the present day institutions lie deeply buried in thepast● Ancient Rules and Laws● British Rule in India● Government of India Act, 1935● Act of Independence, 1947● Framing of the Constitution of India
East India Company● A few merchants of London formed the East India Companyand secured a Charter from Queen Elizabeth in December1600 for trading expeditions● Company managed by Governor and 24 members● Given monopoly of trade with East● Company established trading posts and settlements alongthe coast of India– Surat (1613); Masulipatnam (1616); Hariharpur (1633);– Madras (1640); Bombay (1669); Calcutta (1686)
Revolution of 1688 and Resolution of 1694● With Glorious Revolution of 1688, Parliament established its supremacy.Parliament could pass any law and Courts recognized the supremacy.● In 1694, the Parliament resolved that all subjects of England have equal rights totrade to the East Indies unless prohibited by Act of Parliament● New rivals establish and operate but suffer losses● In 1708, rival companies were amalgamated under new title “The United Companyof Merchants of England Trading to the East Indies” restoring trade monopoly● By 1770, the Company was on the verge of bankruptcy● Lord North approached for a loan, who moved for the appointment by Parliamenta committee to inquire into the affairs of the Company● Regulating Act, 1773 passed by Parliament● Court of Proprietors and Court of Directors in England managing the Companybrought under Parliamentary control
Pitts India Act, 1784● The Act provided for a Board of Control of six PrivyCouncillors given powers of supervision and control overIndian administration. All despatches by Directors to besubmitted to the Board.● Governor-General-in-Council was given the power andauthority to superintend, control and direct the severalPresidencies.
(Permanent Settlement) Code of Cornwallis● Charles Earl Cornwallis served asGovernor-General of India from 1786 to1793.● Laid the foundation for British rulethroughout India and set standards forthe services, courts, and revenuecollection that remained remarkablyunaltered almost to the end of the Britishera
Madras Permanent Settlement Regulation, 1802● The ancient practice was for the zamindars and other landholders to collect therevenue from the ryots and pay a percentage to the Ruler from out of the collection.Whenever the Govt raised their demands, the burden was passed on to the ryots● It was usual for the Government to deprive zamindars and to appoint persons on itsown behalf to the management of zamindaris, reserving to the implied right and theactual exercise of the proprietary possession of all lands whatever.● Permanent Settlement offered the choice of sending an unalterable amount asrevenue/peshkush with right to inherit and alienate the estate● Proprietary right of the soil became vested in the zamindars and sanad or permanentproperty was granted to them● Estates abolished by Estates Abolition Act XXVI of 1948
Objects of the Regulation ...● A Regulation for declaring the proprietary right of land to be vested in individualpersons, and for defining the rights of such persons, under a permanentassessment of the land-revenue in the territories subject to the Presidency ofFort St. George● Existing mode of administration must be injurious to the permanent prosperityof the country by obstructing the progress of agriculture, population andwealth, and destructive of the comfort of individual persons by diminishing thesecurity of personal freedom and of private property;● Wherefore, the Govt., impressed with a deep sense of the injuries arising tothe state and to its subjects grant to Zamindars/landholders, their heirs andsuccessors, a permanent property in their land in all time to come, and to fixforever a moderate assessment of public revenue on such lands, the amountof which shall never be liable to be increased under any circumstances.
Salient provisions ...● 2. Assessment on all lands liable to revenue. Proprietaryright vested in zamindars● 3. Sanads to be granted to zamindars and kabuliyat to beexecuted by landholder which shall contain the conditionsand articles of tenure. Disputed assessments shall be judgedby Courts of Judicature in accordance with the agreements.● 5. Police expenses to be borne by Government. Landsappropriated to this purpose to be resumed.● 6. Amounts of assessment to be regularly paid.Landholders property answerable for consequences offailure. 7. Personal property to be attached first.
Salient provisions ...● 8. Proprietors of land may transfer by sale, gift or otherwise,proprietary right in whole or part of their zamindaris withoutprevious consent of Government. Such transfer shall beregistered at the office of the Collector.● 14. Zamindars to engage with ryots, to grant pattas and togive receipts for rents. They can be sued in the Adalat fordefaults.● 15. Zamindars to assist the Officers of the Government inkeeping the peace by apprehending and securing offendersof all descriptions, and shall inquire and give notice toMagistrates of robbers/disturbers who may seek refuge intheir zamindaris.
Madras Board of Revenue Regulation, 1803● A Regulation defining the duties of the Board of Revenue,and for determining its extent of powers vested● Judicial authority exercised by Board of Revenue abrogatedwhere Courts have been established● 4. The duty of the Board of Revenue is generalsuperintendence of the revenue and to improve it● 5. The Board of Revenue to have authority to superintendand control all persons employed in executive administrationof public revenue, all zamindars, ryots● 6. The Board of Revenue shall assemble two days at theleast, in every week for the despatch of business
Madras Board of Revenue Regulation, 1803● 9. The Board of Revenue shall annually or as often as they maybe required lay before the Government a general report of theirproceedings.● 12. The Board of Revenue shall be careful to preserve theirrecords complete and shall transmit to the Government thewhole set of their proceedings● 13. Records not to be copied or removed from office.● 18. Majority to decide. 20. President has casting vote● 21. Dissents from majority when recorded● 42. Board not to make or confirm grants of land withoutauthority of the Government
Madras Collectors Regulation, 1803● Regulation for describing and determining the conduct to beobserved by Collectors in certain cases● Object: Whereas under the system of internal Governmentestablished for the administration of the public revenue, andfor the security of persons and property, individuals shouldhave the means of ascertaining and knowing the Regulationspassed for their benefits; and whereas the said systemrequires that the power and authority vested in the immediateCollectors of revenue should be curtailed, wherefore thefollowing Regulation has been passed for the purpose ofdefining authority committed to Collectors, and for describingthe modes of procedure required in the discharge of their duty.
Madras Collectors Regulation, 1803● 2. Collection of revenues entrusted to Collectors● 5. Collectors to be under Board of Revenue● 7. All acts of Collectors to be public.– All acts andproceedings of Collectors shall be held and done publicly;that is to say, in open kacharis accessible to all persons.● 8. Principles on which revenues are to be administered.–Collectors shall administer the public revenues to theadvantage of the State, the happiness of the people, and theprosperity of the country; and shall suggest such propositionsto the Board of Revenue as, in their judgment, may becalculated to augment and improve those revenues.
Madras Collectors Regulation, 1803 ...● Collectors to have control over all persons employed underthem and over persons paying revenue or otherwiseconcerned in revenue● Collectors to transmit diaries to Board in English for eachmonth on the fifteenth day of the succeeding month● Collectors shall keep public money in a strong chest securedwith two locks – the key of one lock shall be kept by theCollector and the other shall remain with the public shroff● Jamabandi and kistbandi statement of land-revenue,permanently assessed, shall be sent to the Board ofRevenue within one month after the expiration of each Fasli
Madras Collectors Regulation, 1803 ...● 14. Collections of revenue.– In the event of arrears,Collectors shall proceed to recover such arrears in theprescribed mode by attachment or in pursuance of a decreeof a Court● Sub-division after attachment to preserve all lands wateredby one tank or water-course in the same sub-division● Collectors shall keep registers of all sub-divisions of estatesand all transfers of landed property● 31. Levy of assessment for payment of police● 33. Receipts to be issued for payments of revenue● 36. Public servants not to be employed in private business
Madras Collectors Regulation, 1803● 59. Collectors to make no advances without authority of Government● 60. Collectors and Assistants not to permit servants to be concerned inany rent or farm of revenue● 63. Not to occupy grounds or to erect buildings without sanction● 64. Not to publish anything which may affect inter-course with foreignstates● 67. In the absence of Collectors, the senior Assistant on the spot shalltake charge of the public business● 68 & 69. Collectors removed or resigning to deliver public documents totheir successors and Collectors receiving charge to count balance of cashand grant receipt in duplicate
Abolition of Zamindari system, Board of Revenue● The Estates (Abolition and Conversion Into Ryotwari) Act,1948 repealed the permanent Settlement and ryotwarisettlement was introduced● The Tamil Nadu Board of Revenue Abolition Act, 1980,abolished the Board of Revenue, and the jurisdiction andpowers vested in the duties performed by the Board stoodvested in the Government/Commissioner/AdditionalSecretary to Government/District Collector
Queen Victorias Proclamation of 1858● End the East India Companys rule● Appointed Viscount Canning to be First Viceroy and Governor-General toadminister the government in the name of the British Crown● “We hereby announce to the native Princes of India that all treaties andengagements made with them by or under the authority of the East IndiaCompany are by us accepted and will be scrupulously maintained, and welook for the like observance on their part.”● “.. our subjects of whatever race or creed, be freely and impartially admittedto office in our service, the duties of which they may be qualified by theireducation, ability and integrity, duly to discharge”● “We know and respect the feelings of attachment with which the natives ofIndia regard the land inherited by them from their ancestors and we desire toprotect them in all rights connected therewith, subject to the equitabledemands of the State; and … due regard be paid to the ancient rights andcustoms of India”
Process of Decentralisation● The Indian Councils Act, 1861● The Indian Councils Act, 1892● Government of India Act, 1919● Government of India Act, 1935● Indian Independence Act, 1947
The Constituent Assemby● The Cabinet Mission recommended thatthe recently provincial LegislativeAssemblies be utilised as electing bodies● The strength of the Constituent Assemblywas to be 389 with 93 representatives fromIndian States● Elections were completed in July 1946● The Constituent Assembly opened onMonday, the 9thday of December, 1946,eleven in the morning.●On 29thAugust 1947, Dr. B.R. Ambedkarwas appointed as Chairman of the DraftingCommittee
Framing the Constitution● Objectives Resolution was moved by Nehru in the ConstituentAssembly on 13thDecember 1946● The Resolution envisaged a federal polity with residuary powersvesting in the autonomous units and sovereignty belonging to thepeople●It was finally adopted by the Assembly on 22ndJanuary, 1947, andlater took the form of the Preamble to the Constitution● Assembly appointed a number of committees to deal with variousaspects of the Constitution:– Union Constitution Committee – Union Powers Committee – Committeeson Fundamental Rights – Minorities, SC & ST● Reports and recommendations by the Committees were consideredby the Drafting Committee
Drafting the Constitution● The first draft of the Constitution of India was prepared in October, 1947 by the Advisory Branchof the Constituent Assembly, under Sir B.N. Rau● Constitutional Precedents from the constitutions of 60 countries was given to Members● The Draft Constitution of India prepared by the Drafting Committee was submitted to thePresident of the assembly on 21stFebruary, 1948●Clause by clause consideration was completed during 15thNovember 1948 to 17thOctober 1949●Second reading of the Constitution was completed on 16thNovember 1949● The Assembly took up Third reading with the motion by Dr. Ambedkar “that the Constitution assettled by the assembly be passed”. The motion was adopted on 26thNovember, 1949●The Constitution came into effect on 26thJanuary 1950. The date 26 January was chosen tocommemorate the Purna Swaraj Declaration of Independence of 1930
Other Acts of the Constituent AssemblyOn 24th January, 1950, the Constituent Assembly of India adopted the first stanza of the morning song of Tagore settled as IndiasNational Anthem, along with "Vande Mataram":Tuesday, the 24th January 1950The Constituent Assembly met in the Constitution Hall, New Delhi, at Eleven of the Clock, Mr. President (The HonourableDr. Rajendra Prasad), in the Chair...STATEMENT RE: NATIONAL ANTHEMMr. President: There is one matter which has been pending for discussion, namely the question of the National Anthem. Atone time it was thought that the matter might be brought up before the House and a decision taken by the House by way ofa resolution. But it has been felt that, instead of taking a formal decision by means of a resolution, it is better if Imake a statement with regard to the National Anthem. Accordingly I make this statement.The composition consisting of the words and music known as Jana Gana Mana is the National Anthem of India, subject tosuch alterations in the words as the Government may authorise as occasion arises; and the song Vande Mataram, whichhas played a historic part in the struggle for Indian freedom, shall be honoured equally with Jana Gana Mana and shall haveequal status with it. (Applause). I hope this will satisfy the MembersConstituent Assembly Debates at http://18.104.22.168/ls/condeb/vol12p1.htmThe Constituent Assembly also adopted the national flag, ratified the decision with regard to membership of the Commonwealthand election of the first President of the Republic
PreambleWE, THE PEOPLE OF INDIA, having solemnly resolved toconstitute India into a SOVEREIGN SOCIALIST SECULARDEMOCRATIC REPUBLIC and to secure to all its citizens:JUSTICE, social, economic and political;LIBERTY of thought, expression, belief, faith and worship;EQUALITY of status and of opportunity;and to promote among them allFRATERNITY assuring the dignity of the individual and the unityand integrity of the Nation;IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day ofNovember, 1949, do HEREBY ADOPT, ENACT AND GIVE TOOURSELVES THIS CONSTITUTION.
Preamble● In Re Berubari Union & Exchange of Enclaves● Kesavananda Bharti v. State of Kerala● Excel Wear v. Union of India● D.S. Nakara v. Union of India● St. Xavier College v. State of Gujarat
Articles 5 - 11● Pradeep Jain v. Union● Mohammed Raza v. State of Bombay● State of Bihar v. Kumar Amar Singh● Kulathi v. State of Kerala● State Trading Corporation of India v. Commercial Tax Officer● Bank Nationalisation Case
Articles 12 - 35● Naresh v. State of Maharashtra● Champakam Dorairajan v. Madras● K.R. Shanthi v. TRB● CSX v. SEBI● M.C. Mehta v. Union● Olga Tellis v. Bombay Municipal Corporation● Kharak Singh v. UP● Vishaka v. Rajasthan
Articles 36 - 51● A. First Period– Madras v. Champakam Dorairajan– Mohd. Hanif Quareshi v. Bihar– In re Kerala Education Bill● B. Second Period– Chandra Bhavan v. Mysore● C. Third Period– Minerva Mills Case (and after)– Waman Rao v. Union– Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.
Part IV Cases ...● Balwant Raj v. Union● F.N. Balsara v. Bombay● Gurdial Singh v. Punjab● Eveready Flashlight Co. v. Labour Court● DBM Patnaik v. AP● Nashiswar v. MP
Part XI: Relations between the Union and the States
Articles 245 - 293● Plenary Power of Legislatures– West Bengal v. Union● Doctrine of Pith and Substance– State of Rajasthan v. G. Chawla– State of Bombay v. F.N. Balsara– D.N. Banerjee v. P.R. Mukerjee– Prafulla Kumar Mukerjee v. Bank of Commerce Ltd. Khulna– A.S. Krishna v. State of Madras– S. Kodar v. State of Kerala– State of Karnataka v. Ranganatha Reddy
Relations between the Union and the States ...● Doctrine of Repugnancy– M. Karunanidhi v. Union● Doctrine of Colourable Legislation– Kameshwar Singh v. State of Bihar– K.C. Gajapati Narayan Deo v. State of Orissa– R.S. Joshi v. Ajit Mills Ltd– Gullapalli Nageswara Rao v. A.P.S.R.T.C● Power of Parliament to legislate on State Subjects
Administrative Relations● Administrative Relations– Anwar v. State of J & K– Jayantilal Amritlal v. F.N. Rana● Financial Relations– Moopil Nair Case– Jagannath Ramamj Das v. State of Orissa– Commr, HRCE v. Lakshmindra– Corporation of Calcutta v. Liberty Cinema● Distribution of Revenues between the Union and the States– Quilon Municipality v. Harrisons & Crossfield Ltd– B.M. Lakhani v. Municipal Committee, Malkapur
Part XII: Finance, Property, Contracts and Suits
Part XIII: Trade, Commerce & Intercourse within India
Articles 301 - 307● Automobile Transport Limited v. State of Rajasthan● Nazeria Motor Service v. State of AP● Madras v. Nataraja Mudaliar● Mysore v. H. Sanjeeviah● G.K. Krishnan v. State of Tamil Nadu● Atiabari Tea Co. Ltd. v. State of Assam● State of Madras v. Bhailal Bhai● Kalyani Stores v. State of Orissa
Part XIV: Services under the Union and the States
Article 352 - 360● Gulam Sarwar v. Union● Bennet Coleman & Co. v. Union● M.M. Pathak v. Union● Makhan Singh v. Punjab● A.D.M. Jabalpur v. S. Shukla● Ram Manohar Lohia v. Bihar● Mohd. Yaqub v. J & K● S.R. Bommai v. Union
Article 368● Sankari Prasad v. Union of India● Sajjan Singh v. State of Rajasthan● I.C. Golaknath v. State of Punjab● Kesavananda Bharati v. State of Kerala● Minerva Mills Ltd. v. Union of India● Waman Rao v. Union of India● A.K. Roy v. Union of India
Part XXI: Temporary and Transitional Provisions
Nature of the Constitution● It establishes the framework or structure of government● It delegates or assigns the powers to the government● It restrains the exercise of these powers by governmentalofficials in order that certain individual rights can be preserved● The Constitution both grants and limits powers● Fundamental Principles around which it is built:– Popular Sovereignty & Limited Government– Separation of Powers, Checks and Balances– Fedaralism– Rule of Law
Functions of Government● Montesquieu in LEspirit des Lois (1748) following attemptsby Aristotle & Locke, divided the powers of the Governmentinto:– Legislative Power / Function– Executive Power / Function– Judicial Power / Function
References● The Constitutional Law of India, Dr. J.N. Pandey● Indian Constitutional Law, M.P. Jain● Our Constitution, Subhash C. Kashyap● Constitutional Law of India, H.M. Seervai● Outlines of Indian Legal History, M.P. Jain● Constitutional History of India, M.V. Pylee● Constitutional Development and the National Movement in India, V.D. Mahajan● A Manual of the Tamil Nadu Regulations, Estates and Inams Abolition and RyotwariSettlement Acts, S. Rajaraman● H.M. Seervai by Justice Michael Kirby● The Indian Constitution, Granville Austin● Illustrations by Nanda Lal Bose from the photolithographed edition of COI● Www.wikipedia.org www.google.com http://www.liiofindia.orghttp://www.indiankanoon.org