This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author has tried to bring to the attention of the readers the difference between the pre-constitutional and post-constitutional laws and has further discussed the amendments made in the post-constitutional laws and their impact on the society.
In order to understand the difference between pre-constitutional and post-constitutional laws, it becomes important in the first place to know the basic meaning of pre and post-constitutional laws. Pre-constitutional laws are the ones which were enacted and enforced way before the Indian Constitution came into existence.
Ancient India followed a distinct tradition of law which was marked by the existence of independent schools of legal theory and practice. Chanakya’s Arthashastra is believed to be dated from 400 BC and Manusmriti from 100 AD. The philosophy which Manu put forth was of tolerance and pluralism which was accepted and followed throughout Southeast Asia.
With the arrival of British Rule in India, there was an altercation in the Indian tradition. Hindu and Muslim laws were abolished and British Common Law was put in place. Hence, the present judicial system in India derives much from the British system of Law and has very few connections with the Indian Legal system.
Historical background of Indian Constitutional laws
Before the independence of 1947, India was divided into two main provinces;
- The British India which was further divided into 11 provinces.
- The second entity was the princely states which were ruled by the Indian princes under the subsidiary alliance policy.
During the course of Independence, the two entities were merged together to form the Indian Union, but many of the legal systems followed in India till today date back to British India. The historical underpinning and evolution of Indian constitution can be traced back to the various regulations and acts passed in India before its Independence. The British government in India brought into effect various legislations as per their convenience and the main nexus behind bringing into effect such legislation was to exploit the resources and also to culminate the protests from the rebellions, against the open loot of such resources.
Indian System of Administration
Indian democracy is a parliamentary form of government in which the executive is responsible to the parliament. The parliament has two houses – the upper house and the lower house which is Rajya Sabha and Lok Sabha respectively. The type of government which India follows is federal government which has separate legislature and executive at both centre and the states. In addition to this India has self-governance at local levels of government. All these systems draw their onus from the British system of administration. This article will now focus on the historical background of the Indian Constitution and its development over the years.
During India’s existence under the British reign, there were various laws and acts passed by the British government. The Regulating Act of 1773 was seen as a foundation stone laid by the East India Company to ensure its smooth functioning in the Indian Sub-Continent. Further, the Indian Independence Act marked the end of British rule in India which was given effect on 15 August 1947.
As already discussed above, this step was considered to be the first step by the British to manage the affairs of the East India Company in India. The governor of Bengal was designated as the governor general. Warren Hastings became the first governor-general of Bengal. The executive council of governor-general was established, which comprised of 4 members and there existed no separate legislative council.
Supreme Court was established by the company at Fort William (Calcutta) as the apex court in 1774. The act prohibited the servants of the company from accepting bribes or indulging in any trade activities.
This act mainly draws a distinction between the commercial and political acts of the company. The court of directors was assigned the work to decide on the commercial activities and the board of control had to authorise the political affairs of the company. This act further reduced the strength of the council to 3 members. The act placed Indian Affairs directly under the control of the British Government. The Company’s territory under India came to be known as “The British possession in India”. Governor’s council was established in Bombay and Madras.
The Charter Act of 1813 terminated the company’s monopoly which existed over the Indian trade, after the passing of this act, trade with India was open to all British subjects.
The Governor-General of Bengal was upgraded to the post of Governor-General of India. Lord William Bentick became the first Governor-General of India. The Charter Act of 1833 was regarded as the first step towards centralisation in British India. The act took away the legislative powers of Bombay and Madras provinces and the central legislature was put in place. The Act brought an end to East India Company as a commercial body and transformed it into a purely administrative body.
There was a separation brought in the Legislative and Executive powers of the Governor-General’s council. 6 members comprised of the central legislative council, out of which 4 were appointed by the provisional government of Madras, Bombay, Bengal and Agra. It introduced open competition as a basis for recruitment of civil servants. Indian Civil Service opened for all.
This act replaced the rule of company by the rule of crown. The powers which were embodied on the British Crown were to be exercised by the secretary of state of India. The secretary of State was further assisted by 15 members. Lord Canning became the first Viceroy of India.
The act is popularly known as Montague-Chelmsford Reforms. The scheme of dual governance- Dyarchy was introduced. Under the Dyarchy system, the provisional subjects were divided into two parts – Reserved and Transferred. The Governor was not responsible to the legislate council over the reserved subjects. The act also introduced the Bicameral legislature at the centre. The Legislative Assembly had a strength of 140 members and the Legislative Council’s strength was 60 members. The act also introduced direct elections.
This is considered to be the last act which was laid down in India under the British rule. It declared India as an independent and sovereign state. The act established responsible governments both at Centre and States. It assigned dual functions to the Constituent Assembly which were – Legislative and Constituent functions.
Points to Ponder
- The laws which were made before the Charter Act of 1833 were known as Regulations and the ones made after it was called Acts.
- The development of the Portfolio System and also the system of budget points to the separation of powers were introduced during this period.
- In the year 1921, the railway budget was separated from the general budget.
- Lord Mayo’s Idea of decentralisation of powers brought into picture the local self-government.
- In the year 1882 Lord Rippon’s resolution was hailed as Magna Carta of Local Self- Governance. He came to be regarded as the “Father of local Self-governance in India”
Post-constitutional laws are the ones which were brought into effect after the enactment of the Constitution of India, 1950. All those acts which were given effect after January 26, 1950 fall under the ambit of Post-Constitutional Laws. There are laws which were brought into effect during the British era before the formation of the constitution and are still being followed in the same manner, like that of the- Indian Penal Code, Police Act, 1861 and even the Societies Registration Act, 1860. These are few of the major acts which were enacted before the formation of the constitution and are still in practice with required amendments.
IPC – Indian Penal Code
The Indian Penal Code was drafted by the first law commission under the leadership of Lord Macaulay. Over a period of time, IPC has been one of the much-applauded legislative acts of India, even though it existed with several defects. In order to overcome the loopholes which existed in the law and further make it suitable with the changing aspects of the society, there have been various amendments which have been brought in IPC which will be looked into.
- Amendment in IPC – Information Technology Act 2000
The IT Act was passed in the budget session in the year 2000 and signed by president K R Narayan. The IT act was brought into effect with the advent of internet technology. Even after its enactment, the IT act went through various changes. In 2008 there was an expansion made in the definition of ‘Communication Device’ which included under its ambit mobile devices and placed owners of IP addresses responsible for disturbing content.
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.
The act came into force on April 3rd 2013, following the gang rape in Delhi. The act made stalking and voyeurism liable to be punished with 7 years of imprisonment. It regarded certain acts as offensive which were dealt with separately and these offences included acid attack (Sec 326A), attempt to acid attack (Sec 326B), sexual harassment (Sec 354A), act with intention 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.
The bill amended certain sections of IPC to increase the minimum punishment for rape of women from seven years to ten years. The gang-rape of girls who are below the age of 12 years would contain imprisonment for a period of 20 years and the same may even extend to the death sentence of the culprit.
The amendment made it mandatory for the investigation into the rape of a minor child to be completed within 6 months and should not exceed the said time limit.
Difference between pre-constitutional and post-constitutional laws
Article 13(1) of the Indian Constitution states – “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void”.
On the other hand sub-clause (2) of the Article 13 states “The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void”. From this, it can be concluded that Article 13(1) deals with the pre-constitutional laws and Article 13(2) deals with Post-Constitutional Laws.
No Retrospective Effect
Article 13(1) of the constitution which relates to fundamental rights has no retrospective effect, which means all existing laws which are inconsistent, become void from the date of commencement of the Constitution. Therefore the acts which are committed before the commencement of the Constitution which are in contravention of the provisions of any law, become void after the commencement of the Constitution because of the inconsistency with the fundamental rights and the same cannot be challenged in any court of law. But the same consists of certain exceptions which will be discussed in the latter part of the article.
In the case of Keshavan Madhava Menon v. State of Bombay, a person was being prosecuted under the law before the Constitution came into force. And once the constitution came into effect, the law under which the person was convicted became void. Hence, the Supreme Court held that the person cannot be convicted under the said act.
Doctrine of Eclipse
The Doctrine of Eclipse was brought into force in the case of Bhikaji v. State of Madhya Pradesh and this doctrine laid down that the pre-constitutional laws which were inconsistent with the fundamental rights were not wiped out completely from the statute book but they continued to exist when they were with regard to rights and liabilities. Hence, it could be said that the law was ‘eclipsed’ for the time being which means it was dormant and the same was not dead for all purposes. Further, the law was applicable only to pre-constitutional and not post-constitutional laws.
Doctrine of Severability
The clauses of article 13 envisage that the law is void to the extent of its contravention with regard to the Fundamental Rights. This means that a provision is not void as a whole but only a part of it is void and the same is severed from the rest of the part which continues to be valid and in force. For the determination whether the valid parts of the statute are severable from the invalid parts, the intention of the legislature in doing so becomes the determining factor.
In the case of RMDC v. Union of India, there existed a prize competition which involved both, games of gambling nature and those which involved skills. Under article 19(1)(g) the parliament had the right to restrict the prize competition only for gambling and for those which involved skills, Hence the Supreme Court let some parts of the act intact and there existed ample scope for the parliament to enact laws to regulate competitions of gambling nature.
Important Constitutional Amendments
After the enactment of the constitution in 1950, there have been numerous amendments made over the passage of time in order to bring the law in line with the changing aspects of society. Some of the important amendments have been discussed in this article.
Abolition of states according to classes and the introduction of Union Territories and reorganisation of states by language (1956)
This amendment organised the states with regard to the languages spoken in those territories. This systematic arrangement further lowered the complexity of the states and it even abolished the classification of states by progress and per-capita income of the states.
The mini-constitution (42nd amendment) inserted Socialism and Secularism in the preamble, a provision on fundamental (1976)
The main contention behind the enactment of this act was to protect the interest of minorities and to restore their faith in the notion that the rich and the affluent strata of the society will not dominate over them. And the reason behind adding socialism in the amendment was to promote social as well as economic equality of the country.
Right to Property deleted from the list of fundamental rights (1978)
This move was taken up in order to facilitate the reorganisation of land and also facilitate the land acquisition by the government of India for developmental purposes. Also, there was a need to bridge the gap between the affluent and the poor of the society which would be accomplished by the way of redistribution of land.
Voting age reduced from 21 to 18 (1989)
During the governance of Rajiv Gandhi, the voting age was reduced from the age of 21 to 18 and according to the then government, this provision was laid down so that the youth could actively participate in the electoral purposes of the nation and this would eventually motivate them to become a part and parcel of the political process.
Free and compulsory education to children between 6 to 14 years (2002)
This amendment is hailed to be one of the most important amendments of the Indian Constitution, it directed the private schools to grant 25% of the seats to the economically weaker and disadvantaged sections of the society through a process by the way of government funding. The onus behind taking up this initiative was to provide elementary education to the ones in need of it. In addition to this reservation, the amendment even provided free education for all the children aged between 6 to 14 years and there were measures taken up by the government for the implementation of the same.
Introduction of the Goods and Services Tax (GST), to present the idea of One Nation, One Tax (2016)
This is one of the most recent amendments which includes both central government’s tax as well as state government’s tax. The NDA government has claimed that the introduction of GST has deterred the state governments from increasing tax unreasonably.
Taking into consideration the aspect of pre-constitutional and post-constitutional laws it can be said that there exists a wide difference between the two from the time of their enactment and also in the purpose behind enforcing them. The era in which they existed also varies on a large scale. Further, with the growing needs of the society and evolving changes in it, there is a dire need for making amendments with the existing laws so that they match with the aspects of the society.
While making amendments or introducing new laws or repealing the older ones, one aspect to be taken into consideration is the interest of the society, and it should be made sure that this interest is served and there is the well-being of every individual in a society, by ensuring the said purpose.