The legal history
pertaining to exercise of the power in India starts from the time of 1773 when
the British parliament passed the Regulating Act which be came an important
mile stone in the constitutional history of India. The Regulating Act set up a
government of Bengal consisting of a governor-general and four Councillors in
whom was vested the whole civil and military Government of the Presidency of
Bengal and also the government and the territorial acquisitions and revenues in
the kingdoms of Bengal, Bihar and Orissa. The Presidents and Councils of Bombay
and Madras were to be subordinate to the Governor- General and Council who were
made the supreme Government in India.
The victory lord civil
in the battle of plassey in 1757 laid down the foundations of the British
empire and thereafter the year of 1765 has been considered to be a turning
point in Anglo- Indian history providing the territorial sovereignty be the
East India company. Since the regulating Act has provided the jurisdiction to
set up a Supreme Court in Bengal, which was consisting of a Governor- General
and four councillors vested with the power of civil and military Govt, the
jurisdiction conferred to the Supreme Court in Bengal was extended to all
British subjects. Thus the power given to the Governor- General and his council to move and issue
Rules, ordinance civil Govt. of the presidency of Bengal in 1781 there were
many changes in regulating Act by issuance of Act of settlement and the same
clarified that what law has to be administered by the Supreme Court. By the
pits India Act, the Governor- General was vested with the power of
superintendence, control and directions of the presidencies of Bengal, Bombay. Madras
which were sub- ordinate to the Governor- General but there was dual control of
the committee of the secretary of England. Over- Governor- General which
continued up to 1850 when the Govt. of India was taken over by the British
Govt. from the company. The charters Act, 1813, of the year of1833 and the year
of1853 created a separate legislative council consisting of 12 members win of
includes the Governor- General. The commander in Chief, four members of the
council and six legislative members of whom two were English judges of Calcutta
Supreme Court and four officials appointed by the local govt. of Madras,
Bombay, Bengal and Agra. The Governor- General of India.
The Govt of India Act, 1858
had abolished the power of the board of control and the court of direction
which were transferred to the secretary of the state and his council consisting
of 15 members, Thereafter the Indian councils Act in 1861, 1892 and in 1909
known as Minto Morley reform were introduced: creasing the members up to sixty
for additional members of Governor- general council fifty members were for
Madras, Bengal. U.P., Bombay, Bihar and Orissa while thirty members were from
Punjab, Burma & Assam. Thus the imperial legislative council was to consist
of 37 officials and 23 non- officials.
Since the
people were dissatisfied with the reform of 1909, Mr. Montagu the new secretary
for the state of India made certain reforms for increasing association of
Indians in self Govt. with a view to the progressive realisation of responsible
Govt. in India as an integral past of British empire. However, the Govt. of
India, Act, 1919 provided a great land mark in the constitutional development
and the aforesaid Act set up a bicarmesal legislative consisting of two houses
as council of state and control legislative Assembly with a life span of five
years and there years respectively. This Act provided for two lists of subjects
as to get uniformity in legislation was necessary and desirable. Thus the
control list and provincial list were given while the residuary subjects were
divided pet were control and provinces ultimately the Govt. of India Act- 1935
has provided the federal legislature which was consisting of federal Assembly
and the council for the state. This Act provided for the establishment of the
federal court of India with the jurisdiction over the provinces and the state
consisting of a Chief justice and two puisne judges. However the last word
regarding interpretation of the legislative within the spear reserved for them
was to be said by the privy council sitting in London.
The Indian Independence
Act, 1947 provided that until a new constitution in framed, the Act made by the
existing constituent Assembly, exercising all such powers which were formally
exercised by control legislative were given additional power regarding the
framing of new constitution. The constituent Assembly met on Dec. 9, 1946 and 4
Dec. 1946 Dr. Rajendra Prasad was elected as the permanent Chairman of the
constituent Assembly. The constitution was adopted by the constituent Assembly
on Nov. 26, 1949 and come in to force on Jan. 26, 1950. However a referendum
which should have been held and the constitution should have been referred to
the people of India for their approval was not been done. However it is said
that the constitution should have it’s roots, it’s authority, its sovereignty
from the people which has not been done. Thus prior to the coming in to force
of the constitution, the High Court of Madras, Bombay and Calcutta had the power
to issue certain prerogative writs will in their original civil jurisdiction
prior to the amendment of 1963, the High Court were given power to issue a writ
within its territorial jurisdiction but the power was conferred after the
amendment of 1963 to empower the High Court for issuance of a writ in which a
cause of action has arisla within its territorial jurisdiction even if the
Govt. of the authority again whom the writ is issued is not within its
territorial jurisdiction.
OBJECTS AND SCOPE OF CONSTITUTION
Democracy is impossible without the effective
participation of citizens which involves the creation of certain conditions
facilitating such participation. Civil education of citizens, leadership
training and inculcation of morals and values in them are necessary for a sound
democratic system.
Different
meanings have been given to the term ‘Republic’ by various writers. According
to jellinek, a Republic is a Government not by a single person but by a
collegial organisation more or less numerous. The view of Madison is that a
Republic “is a government which derives its powers directly or indirectly from
the great body of the people and is administered by persons holding their
offices during pleasure, for limited period or during good behaviour. It is
essential to such a government that it be derived from the great body of the
society, not from any portion, or a favoured class”. According to Justice
Cooley, “By the republican form of government is understood a government by
representatives chosen by the people or community as an organised whole wield
sovereign powers of Government and, on the othe(F)
The preamble And our constitutional Safe
Guards
The preamble
secures to all citizens social, economic and political justice. Social justice
demands equality along with liberty. In a country like India, it is necessary
that the state must try to improve the lot of the down-trodden and weaker
sections of the people and provisions have been made in the constitution for
that purpose. Economic justice is a corollary to social justice. It demands
that there should be no discrimination between man and man on the basic of
economic values. The very concept of economic justice demands a socialistic
pattern of society. The ideal before the Indian constitution is the
establishment of a welfare state. Pandit Jawaharlal Nehru is said to have told
the constitution, to feed the starving people and clothe the naked masses and
to give every Indian fullest opportunity to his capacity”. Again, “I trust this
constitution itself will lead to the real freedom that we have clamoured for
and that freedom, in turn, will bring food to our starving peoples, clothing
for them, housing for them and all manner of opportunities of progress.”
The preamble
emphasises the fact that it is the people of India who solemnly resolved to
constitute India into a sovereign, socialist, secular and Democratic Republic
and adopted, enacted and gave to themselves the constitution on November 26;
1949 for the realisation of the goals of justice, liberty, equality and
fraternity as explained in the Preamble.
As the
authority of the Government of India is derived from all the people, no section
of the people can challenge it. Nobody can assent that he is not bound by the
authority of the state because he has not given consent to it. The fact is that
his own will is included in the will of the state. No political party in India
can challenge the authority of the state as the same is derived from the
people.
The
constitution of India is not a gift of the British Parliament. It was given by
the people of India assembled in the constituent Assembly to themselves. The
constituent Assembly was competent to determine the political future of the
country in any manner it liked and it declared the ultimate sovereignty of the
people of India and the constitution of India rests on their authority.
The term
‘socialism’ has been defined in shorter oxford dictionary as “a theory or
policy of social organisation which advocates the ownership and control of the
means of production, capital, land, property etc. by the community as a whole
and their administration or distribution in the interests of all”.
In excel wear
v. Union of India AIR1979SC25, the Supreme Court held that the concept of
socialist or a socialist state has undergone changes from time to time from
country to country and from thinkers to thinkers, but some basic concept still
holds the field. In the same judgement, Mr. Justice Untwalia quoted with
approval the following passage from the judgement of the Supreme Court in
Akadasi Padhan v. state of Orissa AIR 1963 SC 1047 where Mr. Justice
Gajendragadkar had observed thus: “With the rise of the philosophy of
socialism, the doctrine of Broadly speaking, this discussion discloses a
difference in approach. To the justification is the general notion of social
welfare. To the rationalist nationalisation or state ownership is a matter of
expediency dominated by considerations of economic efficiency and increased
output of production. This latter view supported nationalisation only when it
appeared clear that state ownership would be more efficient, more economical
and more productive. The former approach was not very much influenced by those
considerations and treated it as a matter of principle that all important and
nation- building industries should is pragmatic. The first proceeds on the
general ground that all national wealth and means of producing it should come
under national control, whilst the second supports nationalisation only on
grounds of efficiency and increased output”. Mr. Justice Untwalia further
observed that “the difference pointed out between the doctrinaire approach to
the problem of socialism and the pragmatic one is very apt and may enable the
courts to lean more and more in favour of nationalisation and state ownership
of an industry after the addition of the word ‘socialist’ in the preamble of
the constitution”.
In D.S.
Nakara v. Union of India, the Supreme Court held that the basic framework of
socialism is to provide a decent standard of life to the working people,
particularly security from cradle to the gravel. The object is to achieve
economic equality and equitable distribution of income. This is a blend of
Marxism and Gandhism, leaning heavily towards Gandhian socialism. This it the
type of socialism intended to be established in India.
“An India in
which the poorest shall feel that it is their country in whose making they have
an effective voice, an India in which all communities shall live in prefect
harmony. There can be no room in such an India for the curse of untouchability
or the curse of intoxicating drinks and drugs. Women will enjoy the same rights
as men.”
In Kedar
Pandey v. Narain Bikram Singh, the appellant and respondent were contesting
candidates to the state legislative assembly. The respondent was declared
elected and the appellant filed an election petition challenging the election
on the ground that the respondent was not duly qualified as he was a citizen of
Nepal and not India. The Supreme Court held that assuming that the respondent
was not born in the territory of India, on a consideration choice in India long
before the end of 1949 which is the material time under Article 5 of the
constitution. He had formed the deliberate intention of making India his home
with the intention of permanently establishing himself and his family in India
and therefore had the requisite animus manendi. He was ordinarily resident in
India for 5 years immediately preceding the time when Article 5 into came
force. As the requirements of Article 5 were satisfied, the respondent was a
citizen of India at the relevant time. In the words of Mr. Justice
P.N.Bhagwati, “These fundamental rights represent the basic values cherished by
the people of this country of the individual and create conditions in which
every human being can develop his personality to the fullest extent. They weave
a pattern of guarantee on the basic structure of human rights and impose
negative obligations on the state not to encroach on individual liberty in its
various dimensions.” As regards the test for determination of infringement of
fundamental rights, it was held in A.K. Gopalan v. Union of India, that the
object and form of state action alone need be considered and effect on
fundamental rights in general will be ignored. However, this view was rejected
by the Supreme Court in R. C. Cooper v. Union of India, where it was held that
the theory that the object and form of state action determine the extent of
protection which the aggrieved party may claim was not consistent with the constitutional
scheme which aims at affording the individual fullest protection of his basic
rights. The state action must be judged in the light of its operation upon the
rights of the individual and groups of individuals in all its dimensions.
In Bennett Coleman Co. v. Union of India, it
was held that the tests of pith and substance of the subject matter and of
direct object and of incidental effect of the legislation were irrelevant to
the question of infringement of fundamental impugned state action on a
particular fundamental right. In Maneka Gandhi v. Union of India, the Supreme
Court emphasised the relevance of directness of the impugned action in
adjudging the infringement of a particular fundamental right.
In Arti
Sapru vs State of Jammu and Kashmir, it
was held that the classification made for rectification of regional imbalances
without identifying the areas suffering from imbalance, was vague and arbitrary
and violative of Article 15 (4). The Government of Jammu and Kashmir earmarked
25% of the seats out of the total number of 50 seats for admission to the
M.B.B.S. course in the Government Medical College for rectification of regional
imbalance in different parts of the state. By a notification, certain villages
were identified as socially and educationally backward for rectification of
imbalance. It was held that there was no material before the Government
affording a basis for classifying these villages as socially and educationally
backward areas. The classification was arbitrary and unconstitutional.
r, the rule
of one man as King Emperor, Czar or Sultan, or with that of one class of men as
an aristocracy”.
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