Homo Sapiens

Threat to Federalism:
1)Systematic

2)Non Systematic

· Economic

· political

Discretionary Grants:
 Article 282 empowers both the Centre and the states to make any grants for any public purpose, even if it is not within their respective legislative competence. Under this provision, the Centre makes grants to the states.

Statutory grants:
 under Article 275 (both general and specific) are given to the states on the recommendation of the Finance Commission.

In post-independent India, the Centre, on several occasions, has used its powers to dismiss or use the Governor to intimidate democratically elected governments. During the Emergency, education was moved to the Concurrent list which was until then a State subject under the constitutional division of responsibilities. However, the adverse changes to federal relations at present are more systemic.

To understand what has changed, at the risk of repetition, there has been increasing centralisation in resource allocations and welfare interventions. The gap between the revenue that State governments are allowed to generate and the expenditure that they are expected to incur has been widening, particularly with the implementation of Goods and Services Tax (GST). The shortfall of GST this year and the Centre’s lackadaisical response to demands for compensation by State governments are again known.

We can also see the consolidation and expansion of a few big business groups seen to be close to the BJP, probably at the expense of smaller players. On the one hand, the Centre has sought to insulate Indian big business from global competition by choosing not to enter into the Regional Comprehensive Economic Partnership (RCEP), but has eroded the power of small businesses through support for GST and the call for a single national market. Clearly, bigger players are more likely to benefit from a removal of State-level barriers to trade at the expense of smaller regional players. This re-calibration of State-capital relations works against smaller entrepreneurs and entrepreneurship.

Institutional transgression

The second challenge is in the use of executive and legislative aggression. Central institutions are increasingly weakening the policy levers of State institutions. Institutions such as the Income Tax Department, the Enforcement Directorate and the National Investigation Agency are being used to intimidate opponents. Appointments are not untouched either.

For instance, the Centre has been meddling with the appointments of vice-chancellors in universities funded and run by State governments. Direct transfers to beneficiaries of welfare schemes bypassing States are also contributing to this dynamic. Further, as recent events suggest, the Centre is increasingly ignoring elected representatives of State governments, holding meetings with State secretaries and district collectors on issues that are primarily under State control. An example was a recent meeting by Minister of Education Ramesh Pokhriyal Nishank with State Education Secretaries on implementation of the New Education Policy.

Source: The Hindu and Laxmikant

Positives:
The Rules must be credited for they mandate duties such as removal of non-consensual intimate pictures within 24 hours, publication of compliance reports to increase transparency, setting up of a dispute resolution mechanism for content removal and adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.

‘the freedom to circulate one’s views as the lifeline of any democratic institution’.

Negatives:
The problem started when these Rules came to life. They were framed by the Ministry of Electronics and Information Technology (MeiTY). The Second Schedule of the Business Rules, 1961 does not empower MeiTY to frame regulations for ‘digital media.’ This power belongs to the Ministry of Information and Broadcasting. In the given case although MeiTY has said that these rules shall be administered by the Ministry of Information and Broadcasting, however this action violates the legal principle of ‘colourable legislation’ where the legislature cannot do something indirectly if it is not possible to do so directly.

Fair recourse, privacy issues

An intermediary is now supposed to take down content within 36 hours upon receiving orders from the Government. This deprives the intermediary of a fair recourse in the event that it disagrees with the Government’s order due to a strict timeline. Additionally, it places fetters upon free speech by fixing the Government as the ultimate adjudicator of objectionable speech online.

The other infamous flaw is how these Rules undermine the right to privacy by imposing a traceability requirement. The immunity that users received from end-to-end encryption was that intermediaries did not have access to the contents of their messages. Imposing this mandatory requirement of traceability will break this immunity, thereby weakening the security of the privacy of these conversations. This will also render all the data from these conversations vulnerable to attack from ill-intentioned third parties. The threat here is not only one of privacy but to the extent of invasion and deprivation from a safe space. These regulations in the absence of a data protection law, coloured in the backdrop of recent data breach affecting a popular pizza delivery chain and also several airlines highlight a lesson left unlearnt.

On fake news

The problem here is that to eliminate fake news — rather than defining its ambit as a first step, the Rules proceed to hurriedly take down whatever an arbitrary, ill-decisioned, biased authority may deem as “fake news”.

Lastly, the Rules create futile additional operational costs for intermediaries by requiring them to have Indian resident nodal officers, compliance officers and grievance officers. Intermediaries are also required to have offices located in India. This makes profit making a far-fetched goal for multinational corporations and start-up intermediary enterprises. Therefore, not only do these Rules place a barrier on the “marketplace of ideas” but also on the economic market of intermediaries in general by adding redundant financial burdens.

Source : The Hindu Editorial

Supreme CourtHigh CourtIt is the principal court of justice in the country.It is the highest judicial body of a state that regulates state,s law and order.It is headed by the chief justice of India.It is headed by the chief justice of the state.There is only one Supreme Court in India.There are total 24 High Courts in India, three of which have jurisdiction in more than one state.Supreme Court has superintendence over all law courts and tribunals of the country.The High Court has superintendence over all courts under its jurisdiction.The judges of Supreme Court are appointed by the President of India.The judges of the high court are appointed by the president of India after consulting the Chief Justice of India and governor of the respective state.The judge of the Supreme Court retires at the age of 65 years.The judge of the high court retires at the age of 62 years.The judge of Supreme Court cannot plead before any court during his or her tenure or after his or her retirement.The judge of high court cannot plead before any court during his or her tenure and after retirement cannot plead in a court below the high court.

● Home Rule League Movement

Manifestation of a trend of aggressive politics in national movement;

was pioneered by Tilak and Annie Besant on lines of a similar

movement in Ireland.

* Factors Favouring the Movement

1. Need being felt for popular pressure to attain concessions.

2. Disillusionment with Morley-Minto Reforms.

3. Wartime miseries—public ready to protest.

4. Tilak, Besant ready to assume leadership.

* Aim of the Movement To convey to the common man the

concept of Home Rule as self-government.

* Tilak’s League—Started in April 1916 and operated in

Maharashtra, Karnataka, Central Provinces and Berar; had six

branches.

* Besant’s League—Started in September 1916 and operated in

rest of India; had 200 branches.

Later, the leagues were joined by others including Moderate

Congressmen.

* Methods used Organising discussions, reading rooms, propaganda

through public meetings, newspapers, pamphlets, posters, etc.

* Positive Gains Emphasis shifted to the masses permanently;

organisational link established between town and country; prepared

a generation of ardent nationalists, influenced Moderate-Extremist

reunion at Lucknow (1916)

● Lucknow Session of INC—1916

Extremists were readmitted to Congress

Muslim League and Congress put up joint demands under Lucknow

Pact.

Congress accepted the League’s position on separate electorates.

● Importance of Montagu’s Statement Attainment of self-government

for Indians became a government policy.

● Revolutionary Activities

* Reasons for emergence

Younger elements not ready to retreat after the decline of open

phase.

Leadership’s failure to tap revolutionary energies of the youth.

Government repression left no peaceful avenues open for protest.

* Ideology

Assassinate unpopular officials, thus strike terror in hearts of

rulers and arouse people to expel the British with force; based

on individual heroic actions on lines of Irish nationalists or

Russian nihilists and not a mass-based countrywide struggle.

● Revolutionary Activities

* Bengal

1902—First revolutionary groups in Midnapore and Calcutta (The

Anushilan Samiti)

1906—Yugantar, the revolutionary weekly started

By 1905-06—Several newspapers started advocating revolutionary

terrorism.

1907—Attempt on life of the former Lt. governor of East Bengal

and Assam.

1908—Prafulla Chaki and Khudiram Bose attempt to murder

Muzaffarpur Magistrate, Kingsford.

Alipore conspiracy case involving Aurobindo Ghosh, Barindra

Kumar Ghosh and others.

1908—Burrah dacoity by Dacca Anushilan.

1912—Bomb thrown at Viceroy Hardinge by Rashbehari Bose

and Sachin Sanyal.

Sandhya, Yugantar—newspapers advocating revolutionary

activity.

Jatin Das and Yugantar; the German Plot during World War I.

* Maharashtra

1879—Ramosi Peasant Force by Vasudev Balwant Phadke.

1890s—Tilak’s attempts to propagate militancy among the youth

through Shivaji and Ganapati festivals, and his journals Kesari

and Maharatta.

1897—Chapekar brothers kill Rand, the plague commissioner

of Poona and Lt. Ayerst.

1899—Mitra Mela—a secret society organised by Savarkar and

his brother.

1904—Mitra Mela merged with Abhinav Bharat.

1909—District Magistrate of Nasik—Jackson—killed.

* Punjab

Revolutionary activity by Lala Lajpat Rai, Ajit Singh, Aga Haidar

Syed Haidar Raza, Bhai Parmanand, Lalchand ‘Falak’, Sufi

Ambaprasad.

● Revolutionary Activity Abroad

1905—Shyamji Krishnavarma set up Indian Home Rule Society

and India House and brought out journal The Sociologist in

London.

1909—Madan Lal Dhingra murdered Curzon-Wyllie; Madame

Bhikaji Cama operated from Paris and Geneva and brought out

journal Bande Mataram.

Ajit Singh also active.

Berlin Committee for Indian Independence established by

Virendranath Chattopadhyay and others.

Missions sent to Baghdad, Persia, Turkey, Kabul.

* In North America, the Ghadr was organised by Lala Hardayal,

Ramchandra, Bhawan Singh, Kartar Singh Saraba, Barkatullah,

Bhai Parmanand.

The Ghadr Programme

Assassinate officials.

Publish revolutionary literature.

Work among Indian troops abroad and raise funds.

Bring about a simultaneous revolt in all colonies of Britain.

Attempt to bring about an armed revolt in India on February

21, 1915 amidst favourable conditions created by the outbreak

of First World War and the Komagata Maru incident (September

1914). The plan was foiled due to treachery.

Defence of India Act, 1915 passed primarily to deal with the

Ghadrites

● The Swadeshi and Boycott Movement

* Began as a reaction to partition of Bengal which became known in

1903, was formally announced in July 1905 and came into force in October 1905. The motive behind partition was to weaken Bengal which was the nerve centre of Indian nationalist activity; the official reason given for the

partition was that Bengal had become too big to administer—which was true to some extent.

* Moderate-led anti-partition movement (1903-05) was under

Surendranath Banerjea, K.K. Mitra, Prithwishchandra Ray.

Methods included public meetings, petitions, memoranda, propaganda through newspapers and pamphlets.

* The movement under Extremists (1905-08) was led by Tilak, Bipin Chandra Pal, Lajpat Rai, Aurobindo Ghosh. Methods included boycott of foreign cloth and other goods, public

meetings and processions, forming corps of volunteers or samitis, use of traditional popular festivals and melas for propaganda, emphasis on selfreliance or atma shakti, launching programme of swadeshi or national education, swadeshi or poetry, pioneering research in science and later calling for boycott of schools, colleges, councils, government service, etc.

* Extremists took over because of the failure of the Moderates to achieve positive results, divisive tactics of governments of both Bengals, severe government repression.

zamindari, labour, some lower middle and middle classes in towns and

cities participated for the first time while the Muslims generally kept away.

* Annulment of Partition mainly to curb the ‘menace’ of revolutionary

terrorism.

* Why Swadeshi Movement fizzled out by 1908

Severe government repression.

Lack of effective organisation and a disciplined focus.

With arrest/deportation of all leaders, the movement left leaderless.

Split in nationalist ranks.

Narrow social base.

* Achievements

“A leap forward” because hitherto untouched sections participated, major trends of later movement emerged; richness of the movement extended to culture, science and literature; people educated in bolder form of politics; colonial hegemony undermined.

● Why Militant Nationalism Grew

1. Realisation that the true nature of British rule was exploitative, and that

the British India government, instead of conceding more, was taking away

even what existed.

2. Growth of self-confidence and self-respect.

3. Impact of growth of education—increase in awareness and

unemployment.

4. International influences and events which demolished the myth of white/European supremacy. These included

— emergence of Japan—an Asian country—as an industrial

power

— Abyssinia’s (Ethiopia) victory over Italy.

— Boer Wars (1899-1902) in which the British faced reverses.

— Japan’s victory over Russia (1905).

5. Reaction to increasing westernisation.

6. Dissatisfaction with the achievements as well as the methods of the Moderates.

7. Reactionary policies of Curzon such as the Calcutta Corporation Act (1899), the Official Secrets Act (1904), the Indian Universities Act (1904) and partition of Bengal (1905).

8. Existence of a militant school of thought.

9. Emergence of a trained leadership.

● The Extremist Ideology

(i) Hatred for foreign rule

(ii) Belief in the capacity of the masses

(iii) Swarajya as goal

(iv) Advocacy of direct political action and self-sacrifice.

Spectrum + Additional info from NCERT + Struggle for India's Independence by Bipin Chandra

Spectrum + Additional info from NCERT + Struggle for India's Independence by Bipin Chandra

Laxmikanth, M.. Indian Polity ;chap 2

Criticism of the Constituent Assembly

The critics have criticised the Constituent Assembly on various grounds. These are as follows: 1. Not a Representative Body: The critics have argued that the Constituent Assembly was not a representative body as its members were not directly elected by the people of India on the basis of universal adult franchise. 2. Not a Sovereign Body: The critics maintained that the Constituent Assembly was not a sovereign body as it was created by the proposals of the British Government. Further, they said that the Assembly held its sessions with the permission of the British Government. 3. Time Consuming: According to the critics, the Constituent Assembly took unduly long time to make the Constitution. They stated that the framers of the American Constitution took only four months to complete their work. In this context, Naziruddin Ahmed, a member of the Constituent Assembly, coined a new name for the Drafting Committee to show his contempt for it. He called it a “Drifting Committee”. 4. Dominated by Congress: The critics charged that the Constituent Assembly was dominated by the Congress party. Granville Austin, a American Constitutional expert, remarked: ‘The Constituent Assembly was a one-party body in an essentially one-party country. The Assembly was the Congress and the Congress was India’9. 5. Lawyer–Politician Domination: It is also maintained by the critics that the Constituent Assembly was dominated by lawyers and politicians. They pointed out that other sections of the society were not sufficiently represented. This, to them, is the main reason for the bulkiness and complicated language of the Constitution. 6. Dominated by Hindus: According to some critics, the Constituent Assembly was a Hindu dominated body. Lord Viscount Simon called it ‘a body of Hindus’. Similarly, Winston Churchill commented that the Constituent Assembly represented ‘only one major community in India’.

Laxmikanth, M.. Indian Polity

Enactment of the Constitution:

 Dr B R Ambedkar introduced the final draft of the Constitution in the Assembly on November 4, 1948 (first reading). The Assembly had a general discussion on it for five days (till November 9, 1948). The second reading (clause by clause consid-eration) started on November 15, 1948 and ended on October 17, 1949. During this stage, as many as 7653 amendments were proposed and 2473 were actually discussed in the Assembly. The third reading of the draft started on November 14, 1949. Dr B R Ambedkar moved a motion—‘the Constitution as settled by the Assembly be passed’. The motion on Draft Constitution was declared as passed on November 26, 1949, and received the signatures of the members and the president. Out of a total 299 members of the Assembly, only 284 were actually present on that day and signed the Constitution. This is also the date mentioned in the Preamble as the date on which the people of India in the Constituent Assembly adopted, enacted and gave to themselves this Constitution. The Constitution as adopted on November 26, 1949, contained a Preamble, 395 Articles and 8 Schedules. The Preamble was enacted after the entire Constitution was already enacted. Dr B R Ambedkar, the then Law Minister, piloted the Draft Constitution in the Assembly. He took a very prominent part in the deliberations of the Assembly. He was known for his logical, forceful and persuasive arguments on the floor of the Assembly. He is recognised as the ‘Father of the Constitution of India’. This brilliant writer, constitutional expert, undisputed leader of the scheduled castes and the ‘chief architect of the Constitution of India’ is also known as a ‘Modern Manu’.

Laxmikanth, M.. Indian Polity; chap 2

Committees of the Constituent Assembly

The Constituent Assembly appointed a number of committees to deal with different tasks of constitution-making. Out of these, eight were major committees and the others were minor committees. The names of these committees and their chairmen are given below: Major Committees 1. Union Powers Committee – Jawaharlal Nehru 2. Union Constitution Committee – Jawaharlal Nehru 3. Provincial Constitution Committee – Sardar Patel 4. Drafting Committee – Dr. B.R. Ambedkar 5. Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas – Sardar Patel. This committee had the following five sub-committees: (a) Fundamental Rights Sub-Committee – J.B. Kripalani (b) Minorities Sub-Committee – H.C. Mukherjee (c) North-East Frontier Tribal Areas and Assam Excluded & Partially Excluded Areas Sub-Committee – Gopinath Bardoloi (d) Excluded and Partially Excluded Areas (Other than those in Assam) Sub-Committee – A.V. Thakkar (e) North-West Frontier Tribal Areas Sub-Committee8a 6. Rules of Procedure Committee – Dr. Rajendra Prasad 7. States Committee (Committee for Negotiating with States) – Jawaharlal Nehru 8. Steering Committee – Dr. Rajendra Prasad Minor Committees 1. Finance and Staff Committee – Dr. Rajendra Prasad 2. Credentials Committee – Alladi Krishnaswami Ayyar 3. House Committee – B. Pattabhi Sitaramayya 4. Order of Business Committee – Dr. K.M. Munshi 5. Ad-hoc Committee on the National Flag – Dr. Rajendra Prasad 6. Committee on the Functions of the Constituent Assembly – G.V. Mavalankar 7. Ad-hoc Committee on the Supreme Court – S. Varadachari (Not an Assembly Member) 8. Committee on Chief Commissioners’ Provinces – B. Pattabhi Sitaramayya 9. Expert Committee on the Financial Provisions of the Union Constitution – Nalini Ranjan Sarkar (Not an Assembly Member) 10. Linguistic Provinces Commission – S.K. Dar (Not an Assembly Member) 11. Special Committee to Examine the Draft Constitution – Jawaharlal Nehru 12. Press Gallery Committee – Usha Nath Sen 13. Ad-hoc Committee on Citizenship – S. Varadachari Drafting Committee Among all the committees of the Constituent Assembly, the most important committee was the Drafting Committee set up on August 29, 1947. It was this committee that was entrusted with the task of preparing a draft of the new Constitution. It consisted of seven members. They were: 1. Dr B R Ambedkar (Chairman) 2. N Gopalaswamy Ayyangar 3. Alladi Krishnaswamy Ayyar 4. Dr K M Munshi 5. Syed Mohammad Saadullah 6. N Madhava Rau (He replaced B L Mitter who resigned due to ill-health) 7. T T Krishnamachari (He replaced D P Khaitan who died in 1948) The Drafting Committee, after taking into consideration the proposals of the various committees, prepared the first draft of the Constitution of India, which was published in February 1948. The people of India were given eight months to discuss the draft and propose amendments. In the light of the public comments, criticisms and suggestions, the Drafting Committee prepared a second draft, which was published in October 1948. The Drafting Committee took less than six months to prepare its draft. In all it sat only for 141 days.

Laxmikanth, M.. Indian Polity chap 2

Changes by the Independence Act

The representatives of the princely states, who had stayed away from the Constituent Assembly, gradually joined it. On April 28, 1947, representatives of the six states5 were part of the Assembly. After the acceptance of the Mountbatten Plan of June 3, 1947 for a partition of the country, the representatives of most of the other princely states took their seats in the Assembly. The members of the Muslim League from the Indian Dominion also entered the Assembly. The Indian Independence Act of 1947 made the following three changes in the position of the Assembly:

1. The Assembly was made a fully sovereign body, which could frame any Constitution it pleased. The act empowered the Assembly to abrogate or alter any law made by the British Parliament in relation to India. 2. The Assembly also became a legislative body. In other words, two separate functions were assigned to the Assembly, that is, making of a constitution for free India and enacting of ordinary laws for the country. These two tasks were to be performed on separate days. Thus, the Assembly became the first Parliament of free India (Dominion Legislature). Whenever the Assembly met as the Constituent body it was chaired by Dr. Rajendra Prasad and when it met as the legislative body6, it was chaired by G V Mavlankar. These two functions continued till November 26, 1949, when the task of making the Constitution was over. 3. The Muslim League members (hailing from the areas7 included in the Pakistan) withdrew from the Constituent Assembly for India. Consequently, the total strength of the Assembly came down to 299 as against 389 originally fixed in 1946 under the Cabinet Mission Plan. The strength of the Indian provinces (formerly British Provinces) was reduced from 296 to 229 and those of the princely states from 93 to 70.

other functions:

In addition to the making of the Constitution and enacting of ordinary laws, the Constituent Assembly also performed the following functions: 1. It ratified the India’s membership of the Commonwealth in May 1949. 2. It adopted the national flag on July 22, 1947. 3. It adopted the national anthem on January 24, 1950. 4. It adopted the national song on January 24, 1950. 5. It elected Dr Rajendra Prasad as the first President of India on January 24, 1950. In all, the Constituent Assembly had 11 sessions over two years, 11 months and 18 days. The Constitution-makers had gone through the constitutions of about 60 countries, and the Draft Constitution was considered for 114 days. The total expenditure incurred on making the Constitution amounted to ` 64 lakh. On January 24, 1950, the Constituent Assembly held its final session. It, however, did not end, and continued as the provisional parliament of India from January 26, 1950 till the formation of new Parliament8 after the first general elections in 1951–52.

Laxmikanth, M.. Indian Polity

Objective Resolution

On December 13, 1946, Jawaharlal Nehru moved the historic ‘Objectives Resolution’ in the Assembly. It laid down the fundamentals and philosophy of the constitutional structure. It read: 1. “This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution: 2. Wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside India and the States as well as other territories as are willing to be constituted into the independent sovereign India, shall be a Union of them all; and 3. wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units together with residuary powers and exercise all powers and functions of Government and administration save and except such powers and functions as are vested in or assigned to the Union or as are inherent or implied in the Union or resulting therefrom; and 4. wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of Government are derived from the people; and 5. wherein shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and 6. wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and 7. whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations; and 8. This ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.” This Resolution was unanimously adopted by the Assembly on January 22, 1947. It influenced the eventual shaping of the constitution through all its subsequent stages. Its modified version forms the Preamble of the present Constitution.

Laxmikanth, M.. Indian Polity :  Chap 2 = Making of Indian constitution

Composition of The Constituent Assembly :

The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan. The features of the scheme were: 1. The total strength of the Constituent Assembly was to be 389. Of these, 296 seats were to be allotted

to British India and 93 seats to the Princely States. Out of 296 seats allotted to the British India, 292 members were to be drawn from the eleven governors’ provinces2 and four from the four chief commissioners’ provinces3, one from each. 2. Each province and princely state (or group of states in case of small states) were to be allotted seats in proportion to their respective population. Roughly, one seat was to be allotted for every million population. 3. Seats allocated to each British province were to be divided among the three principal communities—Muslims, Sikhs and general (all except Muslims and Sikhs), in proportion to their population. 4. The representatives of each community were to be elected by members of that community in the provincial legislative assembly and voting was to be by the method of proportional representation by means of single transferable vote. 5. The representatives of princely states were to be nominated by the heads of the princely states. It is thus clear that the Constituent Assembly was to be a partly elected and partly nominated body. Moreover, the members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise4. The elections to the Constituent Assembly (for 296 seats allotted to the British Indian Provinces) were held in July–August 1946. The Indian National Congress won 208 seats, the Muslim League 73 seats, and the small groups and independents got the remaining 15 seats. However, the 93 seats allotted to the

princely states were not filled as they decided to stay away from the Constituent Assembly. Although the Constituent Assembly was not directly elected by the people of India on the basis of adult franchise, the Assembly comprised representatives of all sections of Indian Society—Hindus, Muslims, Sikhs, Parsis, Anglo–Indians, Indian Christians, SCs, STs including women of all these sections. The Assembly included all important personalities of India at that time, with the exception of Mahatma Gandhi.

Laxmikanth, M.. Indian Polity :  Chap 2 = Making of Indian constitution

Demand for a Constituent Assembly :

It was in 1934 that the idea of a Constituent Assembly for India was put forward for the first time by M. N. Roy, a pioneer of communist movement in India. In 1935, the Indian National Congress (INC), for the first time, officially demanded a Constituent Assembly to frame the Constitution of India. In 1938, Jawaharlal Nehru, on behalf the INC declared that ‘the Constitution of free India must be framed, without outside interference, by a Constituent Assembly elected on the basis of adult franchise’. The demand was finally accepted in principle by the British Government in what is known as the ‘August Offer’ of 1940. In 1942, Sir Stafford Cripps, a member of the cabinet, came to India with a draft proposal of the British Government on the framing of an independent Constitution to be adopted after the World War II. The Cripps Proposals were rejected by the Muslim League which wanted India to be divided into two autonomous states with two separate Constituent Assemblies. Finally, a Cabinet Mission1 was sent to India. While it rejected the idea of two Constituent Assemblies, it put forth a scheme for the Constituent Assembly which more or less satisfied the Muslim League.

Laxmikanth, M.. Indian Polity for Civil Services Examination (pp. 61-62). Tata McGraw-Hill Education India.

A group of retired judges, former bureaucrats and others have written to the newly constituted Committee for Reforms in Criminal Laws, questioning the lack of diversity in the committee and asking for more transparency in its functioning.

Background:

This committee was first announced by home minister Amit Shah in parliament in December 2019.

• The panel would look into required amendments to the Indian Penal Code and Code of Criminal Procedure to deal with the issue of mob lynching.

The Committee was constituted through a Ministry of Home Affairs notification on May 4, 2020. The chairperson is Ranbir Singh (vice-chancellor, National Law University Delhi).

What’s the issue?

The line-up of Committee’s members “lacks diversity, both in terms of the social identity of the members, as well as their professional background and experience.”

Unlike previous committees that had been assigned reforms of such magnitude, this one did not even have full-time members.

What needs to be done?

Include more expertise and diversity. Create sub-committees with outside experts and other consultants with established track records in the field of criminal justice who can redress the lack of diversity and experience in the Committee’s current composition.

• The committee should include “eminent women, Dalit, Adivasi and various religious minorities, LGBT, differently-abled criminal law practitioners and grassroots workers from different parts of India”.

The committee should make public the MHA notification constituting it. It should also upload on its website the terms of reference. The committee should clarify whether or not it is working independently of the MHA.

The committee should engage with a wide range of stakeholders in the criminal justice system in a meaningful, substantive, and transparent manner.

Background:

The Criminal law in India is contained in a number of sources – The Indian Penal Code of 1860, the Protection of Civil Rights Act, 1955, Dowry Prohibition Act, 1961 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Criminal Justice System can impose penalties on those who violate the established laws.

• The criminal law and criminal procedure are in the concurrent list of the seventh schedule of the constitution.

Lord Thomas Babington Macaulay is said to be the chief architect of codifications of criminal laws in India.

Need for reforms:

• Colonial era laws.
• ineffectiveness.
• Pendency of cases.
• Huge undertrials.

Previous committees:

Madhav Menon Committee: It submitted its report in 2007, suggesting various recommendations on reforms in the Criminal Justice System of India (CJSI).

Malimath Committee Report: It submitted its report in 2003 on the Criminal Justice System of India (CJSI).

Lord Wellesley  (1798-1805)

1. Lord Wellesley attempted to make the Company the Supreme Power in India by means of wars, mediatisation and the Subsidiary Alliance.
2. He fought the fourth Mysore War with Tipu in 1799, annexed most of the territory of Mysore and restored a part of it to the previous Hindu ruler who became a dependent ally of the English.
3. He fought the second Maratha war between 1803 to 1805, signed the subsidiary alliance (treaty of Bassein) with Peshwa Baji Rao, forced the Bhonsle and the Sindhia to sign Subsidiary treaties after defeating them, annexed large part of the territories of each of them and defeated the Holkar at the battles of Dig and Farrukhabad.
4. Lord Wellesley took over the territories of Tanjore, Surat and Karnataka on the plea of maladministration and the territory of Farrukhabad because its ruler was a minor.
5. All rulers who signed treaties (Subsidiary Alliance) with Lord Wellesley were forced to surrender a part of their territories to the Company in return for keeping an English army within their territories for their support.
6. Thus, Wellesley succeeded in extending the British Empire and making the Company the supreme power in India.

Reforms under William Bentinck (1828-1833)

● The four Circuit Courts were abolished and their

functions transferred to collectors under the supervision of

the commissioner of revenue and circuit.

● Sadar Diwani Adalat and a Sadar Nizamat Adalat were

set up at Allahabad for the convenience of the people of

Upper Provinces.

● Till now, Persian was the official language in courts.

Now, the suitor had the option to use Persian or a vernacular

language, while in the Supreme Court, English language

replaced Persian.

1833 : A Law Commission was set up under Macaulay

for codification of Indian laws. As a result, a Civil Procedure

Code (1859), an Indian Penal Code (1860) and a Criminal

Procedure Code (1861) were prepared.

Reforms under Warren Hastings (1772-1785)

● District Diwani Adalats were established in districts

to try civil disputes. These adalats were placed under the

collector and had Hindu law applicable for Hindus and the

Muslim law for Muslims. The appeal from District Diwani

Adalats lay to the Sadar Diwani Adalat which functioned under

a president and two members of the Supreme Council.

● District Fauzdari Adalats were set up to try criminal

disputes and were placed under an Indian officer assisted by

qazis and muftis. These adalats also were under the general

supervision of the collector. Muslim law was administered

in Fauzdari Adalats. The approval for capital punishment and

for acquisition of property lay to the Sadar Nizamat Adalat

at Murshidabad which was headed by a deputy nizam (an

Indian Muslim) assisted by chief qazi and chief mufti.

● Under the Regulating Act of 1773, a Supreme Court

was established at Calcutta which was competent to try all

British subjects within Calcutta and the subordinate factories,

including Indians and Europeans. It had original and appellate

jurisdictions. Often, the jurisdiction of the Supreme Court

clashed with that of other courts.

Reforms under Cornwallis (1786-1793)—

Separation of Powers

● The District Fauzdari Courts were abolished and,

instead, circuit courts were established at Calcutta, Dacca,

Murshidabad and Patna. These circuit courts had European

judges and were to act as courts of appeal for both civil and

criminal cases. ● The Sadar Nizamat Adalat was shifted to Calcutta and

was put under the governor-general and members of the

Supreme Council assisted by the chief qazi and the chief

mufti.

● The District Diwani Adalat was now designated as the

District, City or the Zila Court and placed under a district

judge. The collector was now responsible only for the

revenue administration with no magisterial functions.

● A gradation of civil courts was established (for both

Hindu and Muslim laws)—

(i) Munsiff’s Court under Indian officers,

(ii) Registrar’s Court under a European judge,

(iii) District Court under the district judge,

(iv) Four Circuit Courts as provincial courts of appeal,

(v) Sadar Diwani Adalat at Calcutta, and

(vi) King-in-Council for appeals of 5000 pounds and

above.

● The Cornwallis Code was laid out—

— There was a separation of revenue and justice

administration.

— European subjects were also brought under

jurisdiction.

— Government officials were answerable to the civil

courts for actions done in their official capacity.

— The principle of sovereignty of law was established.

• Gorkha war with Nepal → Treaty of Sagauli + Subsidiary alliance with Nepal
• Third Anlgo Maratha War

• Established Ryotwari System of Land Revenue

• 1817 – Establishment of Hindu college at Calcutta For English & western education by Raja Rammohan Roy & David Hare
• 1817 – Government also set up three Sanskrit colleges at Calcutta, Delhi and Agra
• Encouraged freedom of press & abolished censorship issued in 1799 during Wellesley period
• The first vernacular newspaper Samahar Patrika published during his time.

Salient Features of the Government of India Act 1935 were as follows:

• Abolition of provincial dyarchy and introduction of dyarchy at centre.
• Abolition of Indian Council and introduction of an advisory body in its place.
• Provision for an All India Federation with British India territories and princely states.
• Elaborate safeguards and protective instruments for minorities.
• Supremacy of British Parliament.
• Increase in size of legislatures, extension of franchise, division of subjects into three lists and retention of communal electorate.
• Separation of Burma from India

>DPSP (taken from instrument of instruction of GOI 1935)
>Local Self Government + Provincial and federal judiciary = originated in GOI 1935

Poona Pact/ Communal Award [1932]:

• Dr Ambedkar was in favour of a separate electorate for the Depressed Classes and this was laid down by him in the First Round Table Conference. He was representing the Depressed Classes in the conference.
• Gandhi was against this idea and when PM Macdonald decided to grant communal awards to minorities and the Depressed Classes, he undertook a fast whilst in jail in Poona.
• Due to public pressure to end the fast unto death, Dr Ambedkar and Gandhi made the Poona Pact which laid down reserved seats for the Depressed Classes in the provincial legislatures for which elections would be through joint electorates.
• Gandhi was against this idea because he did not want to view the untouchables as being outside the folds of Hinduism.
• Certain seats for the provincial legislatures would be reserved for the Depressed Classes. The number of seats was based on the total strength of the Provincial Councils. The number of seats reserved for the provinces were 30 for Madras, 8 for Punjab, 15 for Bombay with Sindh, 20 for the Central Provinces, 18 for Bihar and Orissa, 30 for Bengal, 7 for Assam and 20 for the United Provinces. So, in total there were 148 reserved seats.
• For each of these seats, the members of the Depressed Classes who could vote would form an electoral college. This Electoral College would elect a panel of four candidates who belong to the Depressed Classes. These candidates would be elected on the basis of a single vote. Four candidates getting the highest number of votes would be elected.
• Then these four candidates would stand in the election for the assembly along with the general candidates where the general electorate would vote. The members of the Depressed Classes hence got a ‘double vote’ since they could vote under the general electorate also.
• Even in the Central Legislature, the same principle of joint electorate and reserved seats was to be followed.
• In the Central Legislature, 19% of the seats would be reserved for the Depressed Classes.
• This system would continue for ten years unless a mutual agreement consents to terminate it earlier.
• Fair representation of the Depressed Classes would be ensured by all means.
• Nobody would be discriminated against on the basis of caste on matters regarding election to the local bodies or in public services appointments.
• A certain sum of money from the educational grant would be allotted for the education of the Depressed Classes in all provinces.

GOI Act 1919:

1. It relaxed the central control over the provinces by demarcating  and separating the central and provincial subjects. The central and  provincial legislatures were authorised to make laws on their respective  list of subjects. However, the structure of government continued to be  centralised and unitary.

2. It further divided the provincial subjects into two  parts—transferred and reserved. The transferred subjects were to be  administered by the governor with the aid of ministers responsible to  the legislative Council. The reserved subjects, on the other hand, were  to be administered by the governor and his executive council without  being responsible to the legislative Council. This dual scheme of  governance was known as ‘dyarchy’—a term derived from the Greek word  diarche which means double rule. However, this experiment was largely  unsuccessful.

3. It introduced, for the first time, bicameralism and direct  elections in the country. Thus, the Indian Legislative Council was  replaced by a bicameral legislature consisting of an Upper House  (Council of State) and a Lower House (Legislative Assembly). The  majority of members of both the Houses were chosen by direct election.

4. It required that the three of the six members of the Viceroy’s  executive Council (other than the commander-in-chief) were to be Indian.

5. It extended the principle of communal representation by providing  separate electorates for Sikhs, Indian Christians, Anglo-Indians and  Europeans.

6. It granted franchise to a limited number of people on the basis of property, tax or education.

7. It created a new office of the High Commissioner for India in  London and transferred to him some of the functions hitherto performed  by the Secretary of State for India.

8. It provided for the establishment of a public service commission.  Hence, a Central Public Service Commission was set up in 1926 for  recruiting civil servants.

9. It separated, for the first time, provincial budgets from the  Central budget and authorised the provincial legislatures to enact their  budgets.

10. It provided for the appointment of a statutory commission to  inquire into and report on its working after ten years of its coming  into force.

Council Act 1909:

• The legislative councils at the Centre and the provinces increased in size.
  Central Legislative Council – from 16 to 60 members
  Legislative Councils of Bengal, Madras, Bombay and United Provinces – 50 members each
  Legislative Councils of Punjab, Burma and Assam – 30 members each
  
• The legislative councils at the centre and the provinces were to have four categories of members as follows:
  Ex officio members: Governor-General and members of the executive council.
  Nominated official members: Government officials who were nominated by the Governor-General.
  Nominated non-official members: nominated by the Governor-General but were not government officials.
  Elected members: elected by different categories of Indians.
  
• The elected members were elected indirectly. The local bodies elected an electoral college who would elect members of the provincial legislative councils. These members would, in turn, elect the members of the Central legislative council.
• The elected members were from the local bodies, the chambers of commerce, landlords, universities, traders’ communities and Muslims.
• In the provincial councils, non-official members were in a majority. However, since some of the non-official members were nominated, in total, a non-elected majority was there.
• Indians were given membership to the Imperial Legislative Council for the first time.
• It introduced separate electorates for the Muslims. Some constituencies were earmarked for Muslims and only Muslims could vote their representatives.
• The members could discuss the budget and move resolutions. They could also discuss matters of public interest.
• They could also ask supplementary questions.
• No discussions on foreign policy or on relations with the princely states were permitted.
• Lord Minto appointed (on much persuasion by Morley) Satyendra P Sinha as the first Indian member of the Viceroy’s Executive Council.
• Two Indians were nominated to the Council of the Secretary of State for Indian affairs.

Council Act 1892:

• The act increased the number of additional or non-official members in the legislative councils as follows:
  Central Legislative Council: 10 – 16 members
  Bengal: 20 members
  Madras: 20 members
  Bombay: 8 members
  Oudh: 15 members
  North Western Province: 15
  
• In 1892, out of 24 members, only 5 were Indians.
• The members were given the right to ask questions on the budget (which was barred in the Indian Councils Act 1861) or matters of public interest but had to give notice of 6 days for it.
• They could not ask supplementary questions.
• The principle of representation was initiated through this act. The district boards, universities, municipalities, chambers of commerce and zamindars were authorised to recommend members to the provincial councils.
• The legislative councils were empowered to make new laws and repeal old laws with the permission of the Governor-General.

Charter Act 1853:

• Governor-General’s office
  The Law member (fourth member) became a full member with the right to vote.
  The Legislative Council which had six members now had 12 members.
  The 12 members were: 1 Governor-General, 1 Commander-in-Chief, 4 members of the Governor-General’s Council, 1 Chief Justice of the Supreme Court at Calcutta, 1 regular judge of the Supreme Court at Calcutta, and 4 representative members drawn from among the company’s servants with at least 10 years tenure, appointed by the local governments of Bengal, Bombay, Madras and North Western Provinces.
  The Governor-General could nominate a vice president to the council.
  The Governor-General’s assent was required for all legislative proposals.
  
• The Court of Directors could create a new presidency or province. This was because of the difficulties that were faced in administering the increasingly large Indian territories of Britain.
  Since 1833 and 1853, two new provinces of Sind and Punjab were added.
  It could also appoint a Lieutenant Governor for these provinces. In 1859, a Lt. Governor was appointed for Punjab.
  This Act also led to the creation of Assam, Burma and the Central Provinces.
  
• The Act provided for the appointment of a separate governor for the Bengal Presidency. It maintained that the governor of Bengal should be different from the Governor-General who was to head administration of the whole of India.
• The number of Board of Directors was reduced from 24 to 18 out of which 6 people were to be nominated by the British Crown.
• Indian Civil Services
  Macaulay Committee of 1854 gave India her first civil services.
  This act removed the right of patronage to appointments in civil service held by the Court of Directors.
  Appointment was to be done only by open competition based on merit and was open to all.
  The report recommended that only the ‘fittest’ be selected to the ICS.
  

Charter Act 1833:

India became a British colony

• The Charter Act of 1833 was a significant constitutional instrument defining the scope and
• authority of the East India Company. The liberal and utilitarian philosophy of Bentham
• was made popular by the provisions of this Act. Following were the important provisions:
• (i) The English East India Company ceased to be a commercial agency in India. In other words,
• it would function hereafter as the political agent for the Crown.
• (ii) The Governor-General of Fort William was hereafter called ‘the Governor- General of
• India’. Thus, Bentinck was the first Governor-General of India’.
• (iii) A Law Member was appointed to the Governor-General’s Council. T. B. Macaulay
• was the first Law Member of the Governor- General-in-Council.
• (iv) The Act categorically stated ‘that no native of India, nor any natural born subject of His
• Majesty, should be disabled from holding any place, office, or employment, by reason of his
• religion, place of birth, descent or colour”. It was this enactment which laid the foundation for
• the Indianisation of public services.

Pitts India Act 1784:

The Board of Control took care of civil and military affairs. It comprised of 6 people:
Secretary of State (Board President)
Chancellor of the Exchequer
Four Privy Councillors

• In this dual system of control, the company was represented by the Court of Directors and the British government by the Board of Control.
• The act mandated that all civil and military officers disclose their property in India and Britain within two months of their joining.
• The Governor-General’s council’s strength was reduced to three members. One of the three would be the Commander-in-Chief of the British Crown’s army in India.
• The Governor-General was given the right of veto.
• The Presidencies of Madras and Bombay became subordinate to the Bengal Presidency. In effect, Calcutta became the capital of the British possessions in India.