Homo Sapiens

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 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 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.

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

Need for reforms:

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)

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.