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A constitution of the latter kind proceeding from a source different from that whence spring the other laws, capable of being amended or repealed in a different way, and exerting a superior force has been aptly styled by Lord Bryce as a "Rigid" constitution of which we have instances in the constitution of the United States of America, the English self-governing colonies and British India.* Such a constitution is enacted not by the ordinary legislative authority (which in the case of British India is the legislative council of the Governor-General of India) but by some higher or specially empowered person or body (which in the case of British India is the King in concurrence with the House of Lords and the House of Commons or, shortly speaking-the King in Parliament). If it is susceptible of change, it can be changed only by that authority or by that special person or body. When any of its provisions conflict with a provision of the ordinary law, it prevails and the ordinary law must give way.
The constitution of British India falls under the class of Rigid Constitutions because it is based on a series of royal charters and Parliamentary statutes which cannot be amended or repealed by the ordinary legislature in India viz. the Legislative Council of the Governor-General. The only body which can amend or repeal them is the King in Parliament -the sovereign legislature of the British Empire. studying Indian political institutions we find constant references not only to the King and the Parliament (including the House of Lords and the House of Commons) but also to other great English political institutions such as the Privy Council, the great political parties, the ministry and the cabinet. There cannot, therefore, be a proper understanding of the British Indian constitution without a preliminary study, however brief, of the English constitution. We therefore proceed to describe briefly the main outlines
*The Indian law codes contain two definitions of cardinal importance. One is "British India", the other "India". "British India" means all places and territories within the King's dominions which are governed by him through the Governor-General in Council. "India" includes British India "together with any territories of any native prince or chief under the suzerainty of His Majesty, exercised through the GovernorGeneral in Council". "British India" is under direct British rule, the portion outside British India which yet-is India is not under direct British rule. It is occupied by native princes or chiefs whose position as regards the Crown is that of an inferior power to the suzerain or paramount power.-Sir T. W. Holderness. In this book we are chiefly concerned with "British India" as defined in the above extract.
III. Authoritative Judicial Decisions, as those on the Rights of Jurymen, on the Prerogatives of the Crown, on the Privileges of the Houses of Parliament and of their members, and on the rights and duties of the Police.
IV. Parliamentary Precedents as recorded in Reports of Committees of both Houses, in the writings of authoritative commentators on Parliamentary usage, and in the reported Debates and Proceedings of both Houses.
The Sovereign-The Supreme Executive in the British Empire is the Sovereign and a body of ministers appointed with his consent. The Sovereign may be a King or a Queen. In official documents the King is described
'George, by the Grace of God of the United Kingdom and Ireland and of British Dominions beyond the Seas, King. Defender of the faith. Emperor of India.'
He holds office for life, subject to the conditions of the Act of Settlement which requires that he shall be a descendant of Princess Sophia of Hanover, a Protestant member of the Church of England, and married only to a Protestant. The rule of succession is hereditary, following the law of primogeniture.
"The King can do no wrong." His ministers are responsible personally for his public acts. In his private capacity "he cannot inflict an injury on a subject, nor is he personally amenable to the procedure of any court of law." The only remedy against the sovereign personally is by Petition
to have fixed salaries and only to be removed from office by petition of parliament; (d) no royal pardon can be pleaded as an answer to an impeachment.
The Reform Acts of 1832, 1867 & 1884-together have made man, instead of land, the holder of suffrage and have distributed representation according to population, they have thus made the House of Commons truly representative and national.
5 The Parliament Act of 1911-enacts as follows-(a) the Lords shall have no power of rejecting or amending a money bill; (b) any bill, other than a money bill, passed by the Commons in three successive sessions and rejected by the Lords in those sessions, becomes law if two years have elapsed between the second reading in the first Commons session and final passing in the third Commons session; (c) the duration of Parliament is limited to five years.
of the English Constitution, in so far as they have a bearing on the proper understanding of the British Indian constitution.
The nature of the English Constitution-The constitution of England is, as we have seen, a Flexible one; it can be understood only by reference to the following classes of authorities :
I. Written documents of the nature of solemn engagements made at great national crises between persons representing opposed political forces. Such are the Magna Charta* (1215) and its several confirmations and amended editions and the Petition of Right granted in 1628 by Charles I.+
II. Statutes like the Habeas Corpus Act', the Bill of Rights, the Act of Settlement, the Reform Acts (183267-84), the Parliament Act (1911)5.
* The chief provisions of the Magna Charta are-(1) that all accused persons are to be tried by their peers; (2) that no taxes are to be imposed without the consent of the Great Council of barons and tenants-in-chief, (3) that there shall be no imprisonment without lawful trial, and no delay or sale of justice.
+ The Petition of Right denounced as illegal the levying of gifts, loans or taxes without parliamentary consent, the imprisonment of persons without cause shown and the billeting of soldiers and sailors on householders against their will.
The Habeas Corpus Act, 1679-lays down that a person, detained on a criminal charge without being brought to trial, or unlaw fully detained by private individuals, will have to be brought, by the commanding governor of the gaol or by the person detaining him, before the court for investigating the reasons of his detention, if any one, on his behalf, apply to a judge of the High Court for a writ of Habeas Corpus.
The Bill of Rights, 1689-declares acts such as levying money and keeping a standing army without the sanction of Parliament, as illegal, and states that the subjects have a right to petition the King and that Parliaments should be freely elected, frequently held and should enjoy freedom of speech. It also declares that the exercise of the power of suspending laws or dispensing with them by regal authority, without the consent of Parliament, is illegal. It enacts that "for the safety and welfare of this Protestant Kingdom," all persons "who profess the popish religion or marry a papist shall be incapable to inherit or possess the crown.'
3 The Act of Settlement of 1701-settles the crown of England, after Anne's death on Sophia, electress of Hanover and her heirs being Protestants. It also lays down, among other things, that (a) all future kings are to be members of the Church of England; (6) no foreigner is to hold grants or office, or to sit in Parliament; (c) judges are
of Right which is available only in cases in which the sovereign's title to lands or goods is disputed. It is held to be of the sovereign's mere grace and free will that the proceedings are allowed. The petition is granted in the form-'Let Right be done', and then the investigation follows the course of an ordinary civil trial before the superior courts of law.
Parliament cannot be assembled, adjourned or dissolved except by his express command. At the commencement of a new Parliament, he delivers, either in person or by a commisson duly authorized for that purpose, a speech declaring the cause of the summons, giving a general, though not very definite, sketch of the sort of measures which his Ministers will introduce into Parliament in the course of the session, and noticing briefly any important facts in current foreign politics or in the domestic annals of the Royal Family.
Bills passed by the Houses of Parliament must receive the assent of the sovereign in order to become a law. But "since the time of Queen Anne no English king has ever refused assent to a Bill. For, under the modern constitutional rule, the King must, in matters such as this, act in accordance with the advice of his ministers, and his ministers can practically prevent any bills, which in their opinion ought not to become law, from reaching the stage at which the king's assent is required." (Ilbert).
The sovereign can formally express his wishes by means of orders in Council or Proclamations, but these are only made subject to the assent of Parliament and are revocable by statute. At the present day all Proclamations derive their ultimate authority from Parliament. In case of emergency, the ministry would advise the Crown to issue a Proclamation on its own authority and would endeavour to pass a Bill of Indemnity as soon as Parliament met.*
* In 1766 Lord Chatham's ministry interfered by Proclamation with the export of wheat, in order to meet the scarcity caused by a bad harvest. When Parliament met, an Act of Indemnity was passed after 'acrimonious debates.' Again, in 1876, it was only after a heated debate in the House of Commons that the Proclamation issued by H. I. M. Queen Victoria before the passing of the Royal Titles Bill announcing her assumption of the title of "Empress of India" was ratified by Parliament. Once again, on March 16th, 1915, the House of Lords voted an Address to the Crown asking that the Royal consent should be withheld from the Proclamation (for the creation of an Executive Council for the United Provinces) which had, according to the Indian Councils Act of 1909, been laid on the tables of the House of Lords. It is evident, therefore, that those Proclamations which have not been questioned by Parliament or superseded by Acts of Parliament have behind them the full authority of Parliamentary sanction.
He has sole power of coining money, of appointing all officers in the army and navy, judges, ambassadors, the gov. ernors-general of India, Canada, the Australian Commonwealth, and the Union of South Africa, Colonial and Indian Governors, bishops and archbishops of the Established Church. He has the power of vetoing all Acts of Colonial and Indian legislatures. He has sole power of granting Charters (as Queen Elizabeth did to the East India Company in 1600) and degrees of nobility, of concluding treaties of any kind, of making war and peace with foreign states and of granting pardon to any particular offender. He has also sole command of the army and the navy.
Briefly speaking, the sovereign "is at the same time the supreme executive, a co-ordinate legislative authority, the fountain of justice and of honour, the supreme governor of the church, the commander-in-chief of the army and navy, the conservator of the peace, and the parens patriae and ex-officio guardian of the helpless and the needy. In law all land is held directly or indirectly, of him. Parliament exists only by his will." Lastly we should note that the Crown is the symbol of imperial unity: as Professor Lowell has pointed out, "the crown is the only visible symbol of the union of the Empire and this has undoubtedly had a considerable effect upon the reverence felt for the throne."
The Privy Council is nominally an assembly of advisors to the Crown. Its main duty now is to advise the Crown as to the issue of ordinances, which are known on that account to the English law as Orders in Council. During the last hundred years the Council has been nominated by the sovereign on the advice of the ministers. Its members are the only constitutional advisors of the Crown, and it is only as members of the Privy Council that the various ministers are permitted to advise the Crown. There is no limit to the number of its members. Every British subject' is eligible to appointment. Its members are appointed for life and bear the title of "Right Honorable" and take precedence after Knights of the Garter. Each member has to take an oath to give advice according to the best of his discretion, and for the King's honour and public weal: to keep the king's counsel secret to avoid corruption and to act in all things as “a good and true councillor ought to do to his sovereign Lord." (Blackstone).
Indians, as British subjects, are also eligible to be admitted to membership of the Privy Council. The Rt. Hon'ble Mr. Ameer Ali is the only Indian so far admitted.