This article has been written by Ms. Damini Chauhan, a student of BBA.LLB (Hons), from United world school of law, Karnavati University, Gandhinagar. This author is a 5th year law student.
INTRODUCTION
It is crucial to understand the fundamental differences between pre-constitutional and post-constitutional laws before attempting to comprehend their differences. The laws that were passed and put into effect before the Indian Constitution were known as pre-constitutional laws.
Due to the existence of autonomous schools of legal theory and practise, ancient India had a unique legal tradition. Manusmriti is thought to have been written in 100 AD, and Chanakya’s Arthashastra dates from 400 BC. Manu’s tolerance and pluralism-based philosophies were widely accepted and practised across Southeast Asia.
Indian tradition changed after the establishment of British Rule in India. In their place, British Common Law replaced Hindu and Islamic law. As a result, the current Indian judicial system largely borrows from the British legal system and has little in common with Indian law.
HISTORICAL BACKGROUND OF INDIAN CONSTITUTIONAL LAWS
India was split into two major provinces before to its independence in 1947;
1. The further divided into 11 provinces British India.
2. Under the subsidiary alliance policy, the princes of India governed the princely states, which was the second entity.
The two organisations were combined during the process of independence to form the Indian Union, but many of the legal frameworks still in use in India today have their origins in British India. The many laws and regulations that were enacted in India prior to independence provide the historical foundation and guide the formation of the Indian constitution. The British government in India enacted a number of laws at their convenience, and the major motivation for doing so was to exploit the country’s riches and quell any uprisings that may have occurred in response to their blatant looting.
INDIAN SYSTEM OF ADMINISTRATION
The parliamentary system of governance used in India places the parliament in charge of the executive branch. The Rajya Sabha and the Lok Sabha are the upper and lower houses of the parliament, respectively. India has a federal system of governance, meaning the national government and the individual states each have their own legislature and executive branch. India also has municipal levels of government that are autonomous. These systems are all based on the British system of government. Now that the history of the Indian Constitution has been established, this essay will concentrate on how it has changed through time.
PRE-CONSTITUTIONAL LAWS
There were several laws and actions passed by the British government while India was ruled by the British. The East India Company lay the cornerstone for its successful operation on the Indian Subcontinent with the Regulating Act of 1773. The Indian Independence Act, which went into effect on August 15, 1947, also signalled the end of British rule in India.
•Regulating Act of 1773
The British viewed this phase, which was already covered above, to be the first step in running the East India Company’s activities in India. As governor general, the governor of Bengal was chosen. First Bengali governor-general was Warren Hastings. There was no distinct legislative council; instead, a four-member executive council of the governor-general was constituted.
The corporation created the Supreme Court as the supreme court in Fort William (Calcutta) in 1774. The measure made it illegal for the company’s employees to engage in any type of business activity, including receiving bribes.
•Pitt’s India Act of 1784
The primary purpose of this action is to distinguish between the company’s economic and political actions. The board of directors was tasked with making decisions on the company’s commercial activity, while the court of directors was responsible for approving its political affairs. The council was now down to three members as a result of this action. The statute directly gave the British Government authority over Indian Affairs. India-administered Company area became known as “The British possession in India.” In Bombay and Madras, governor’s councils were constituted.
•Charter Act of 1813
The Charter Act of 1813 ended the company’s monopoly over trade with India, making it possible for any British subject to engage in business there.
•Charter Act of 1833
The Bengal Governor-General was promoted to the position of Governor-General of India. The first Governor-General of India was Lord William Bentick. In British India, the Charter Act of 1833 was seen as the beginning of centralization. The legislation established the central legislature and removed the legislative authority of the provinces of Bombay and Madras. The East India Company’s status as a business organisation was terminated by the Act, which changed it into a wholly administrative organisation.
•Charter Act of 1853
The Governor-legislative General’s council’s and executive responsibilities were divided. The central legislative council was composed of six members, of whom four were chosen by the temporary governments of Madras, Bombay, Bengal, and Agra. As a method of hiring civil officials, it promoted open competition. open enrollment in the Indian Civil Service.
•Government of India Act 1858
The corporation rule was superseded by the crown rule as a result of this act. The secretary of state for India was tasked with acting on behalf of the British Crown. 15 additional members also offered support to the secretary of state. The first Viceroy of India was Lord Canning.
•Government of India Act 1913
Commonly referred to as the Montague-Chelmsford Reforms. Dyarchy, a dual-governance system, was introduced. The Reserved and Transferred categories made up the Dyarchy system’s division of the provisional subjects. Regarding the reserved issues, the governor had no obligations to the legislative council. Additionally, the Bicameral legislature was established by the act. There were 140 members of the Legislative Assembly and 60 members of the Legislative Council. Also included in the statute were direct elections.
•Indian Independence Act of 1945
This is regarded as being the final law that the British enacted in India. It proclaimed India to be a sovereign, independent nation. The act established responsible national and state governments. It gave the Constituent Assembly two roles, namely legislative and constitutive roles.
POINTS TO PONDER
- Before the Charter Act of 1833, legislation were referred to as Regulations, and those passed afterward were referred to as Acts.
- During this time, the Portfolio System and the budget system were developed, which indicates the introduction of the separation of powers.
- The railway budget was separated from the overall budget in 1921.
- Local self-government was envisioned under Lord Mayo’s decentralisation of power concept.
- Lord Rippon’s resolution was heralded as the Magna Carta of Local Self-Government in 1882. In India, he became known as the “Father of local Self-governance.”
POST-CONSTITUTIONAL LAWS
Post-constitutional laws are those that came into force after the Constitution of India, 1950, was passed. Post-Constitutional Laws encompass any statutes that came into force on or after January 26, 1950. Before the constitution was created, laws like the Indian Penal Code, the Police Act of 1861, and even the Societies Registration Act of 1860 were implemented during the British rule and are still obeyed to this day. These are a handful of the significant pre-constitutional laws that are still in effect with the necessary modifications.
*IPC – Indian Penal Code
Under Lord Macaulay’s direction, the first law commission created the Indian Penal Code. IPC has received a lot of praise throughout time, despite having a number of flaws when it was first implemented. There have been a number of changes made to the IPC that will be examined in order to close the legal gaps that still existed and further adapt the legislation to the evolving needs of society.
•Amendment in IPC – Information Technology Act 2000
President K R Narayan approved and signed the IT Act during the 2000 budget session. The introduction of internet technology led to the implementation of the IT legislation. The IT act underwent numerous amendments even after it was passed. In 2008, the definition of “Communication Device” was expanded to include mobile devices, holding the owners of IP addresses accountable for offensive information.
The major change in this act was the inclusion of section 66 which makes offensive messages illegal and also holds the owner of the server responsible for the content.
•Criminal Law Amendment Act 2013 – Nirbhaya Act
The act went into effect on April 3rd, 2013, in response to the Delhi gang rape. The law made voyeurism and stalking crimes subject to a 7-year prison sentence. It considered some behaviours to be offensive and dealt with them separately. These behaviours included acid attack (Sec 326A), attempt to commit acid attack (Sec 326B), sexual harassment (Sec 354A), act with intent to disrobe a woman (Sec 354B), voyeurism (Sec 354C), and stalking (Sec 354D).
Many of the state governments even drafted bills making a convict liable of raping a girl of 12 years or less than that to be awarded death punishment.
•Criminal Law Amendment Bill 2018
The minimum sentence for raping a woman was increased from seven to ten years under the bill’s amendments to key IPC articles. If multiple girls under the age of 12 are raped, the perpetrator will likely face a 20-year prison sentence, with the possibility of the death penalty.
The amendment mandated that the rape of a minor kid investigation be finished within 6 months and should not go over that time limit.
DIFFERENCE BETWEEN PRE-CONSTITUTIONAL AND POST-CONSTITUTIONAL LAWS
According to Article 13(1) of the Indian Constitution, “All laws in force on Indian territory immediately prior to the commencement of this Constitution, in so far as they are inconsistent with the provisions of this article, shall, to the extent of such discrepancy, be void.”
In contrast, Article 13’s subclause (2) specifies that “The State shall not enact any law which takes away or abridges the rights conferred by this section and any law made in contradiction of this clause shall, to the extent of the contravention, be void.” This leads to the conclusion that Article 13(1) covers pre-constitutional laws, while Article 13(2) covers post-constitutional laws.
•No Retrospective Effect
Since the constitutional provision relating to fundamental rights in Article 13(1) does not apply retroactively, all conflicting laws in place as of the Constitution’s start date are null and void. Therefore, because of the conflict with fundamental rights, acts that were done before to the start of the Constitution that violated the terms of any laws become void after the start of the Constitution and cannot be contested in a court of law. However, there are certain exceptions to the rule, which will be covered in the article’s final section.
A person was being prosecuted under the law in Keshavan Madhava Menon v. State of Bombay before the Constitution went into effect. The law that led to the conviction was void once the constitution went into effect. As a result, the Supreme Court ruled that the defendant cannot be found guilty under the relevant statute.
•Doctrine of Eclipse
The Doctrine of Eclipse, which was established in the case of Bhikaji v. State of Madhya Pradesh, said that pre-constitutional laws that violated fundamental rights were not entirely eliminated from the law books but rather continued to exist as long as they related to rights and obligations. Therefore, it may be claimed that the law was temporarily “eclipsed,” which implies it was dormant but still functional. Furthermore, only pre-constitutional laws were covered by the statute; post-constitutional laws were not.
•Doctrine of Severability
The provisions of article 13 state that a law is invalid to the degree that it violates fundamental rights. This signifies that a provision is not null and void in its entirety, but rather that a portion of it is null and void and is separated from the remaining portion, which is still valid and in effect. The legislature’s objective in passing the law becomes the deciding factor in assessing whether the legitimate portions of the statute may be separated from the invalid portions.
In the case of RMDC v. Union of India, there was a prize competition that included both skill-based games and games of chance. The Supreme Court upheld some portions of the act because, according to article 19(1)(g), the parliament had the authority to limit prize competitions to those that involved skills and gambling. As a result, there was plenty of room for the parliament to enact laws to control competitions of a gambling nature.
IMPORTANT CONSTITUTIONAL AMENDMENTS
The constitution has undergone a great deal of revision since it was passed in 1950, in order to keep up with how society has changed and to make the law more current. In this article, some of the significant changes have been covered.
1. Abolition of states according to classes and the introduction of Union Territories and reorganisation of states by language (1956)
According to the languages used in those regions, this modification arranged the states. The classification of states based on progress and per-capita income was also abandoned as a result of this methodical organisation, which further reduced the complexity of the states.
• The mini-constitution (42nd amendment) inserted Socialism and Secularism in the preamble, a provision on fundamental (1976)
The fundamental justification for passing this law was to safeguard minority’ interests and to restore their faith in the idea that the wealthy and affluent segments of society wouldn’t rule them. Additionally, the inclusion of socialism in the amendment served to advance both social and economic equality in the nation.
2.Right to Property deleted from the list of fundamental rights (1978)
This action was taken to make it easier for the Indian government to acquire land for development objectives as well as to reorganise the land. Additionally, there was a need to narrow the gap between the wealthy and the poor in society, which could be done by redistributing land.
•Voting age reduced from 21 to 18 (1989)
The voting age was lowered from 21 to 18 under Rajiv Gandhi’s presidency. According to the administration of the time, this provision was put in place so that young people might actively engage in the nation’s electoral aims and be inspired to become involved in politics.
• Free and compulsory education to children between 6 to 14 years (2002)
One of the most significant changes to the Indian Constitution, this one required private schools to allocate 25% of their seats to the economically underprivileged and weaker segments of society through a procedure supported by government money. The purpose of starting this effort was to help those who needed it get an elementary education. In addition to this restriction, the amendment even guaranteed free education for all children between the ages of 6 and 14 years, and the administration took steps to put this provision into effect.
•Introduction of the Goods and Services Tax (GST), to present the idea of One Nation, One Tax (2016)
One of the most recent revisions includes both the tax levied by the federal government and the tax levied by the states. The NDA administration asserts that the implementation of the GST has prevented state governments from raising taxes arbitrarily.
CONCLUSION
When comparing pre-constitutional and post-constitutional laws, it can be claimed that there is a significant difference between the two, both in terms of when they were passed and in terms of why they were enforced. The time period in which they lived also differs greatly. Additionally, there is an urgent need to alter the current laws to make them compatible with the features of society given the expanding requirements and changes in society.
The interest of the society should be taken into account while making adjustments, establishing new laws, or repealing previous ones. It should be ensured that this interest is fulfilled and that there is the welfare of every individual in a society by ensuring the aforementioned purpose.
REFERNCE
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