Indian Constitutional History

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Constitutional history of India This paper is an attempt to survey the constitutional developments in colonial Indian history. A constitution can be defined as a set of legal norms, either codified or uncodified that determine the extent and scope of the powers of the state. It gives the state it’s structure and form and strives to curtail arbitrary action to foster a legal environment where rule of law is above the rule of men. Before the advent of British colonial rule, the subcontinent was rules by a number of states that were absolute monarchies. Under an absolute monarchy there are no limits on the power of the Monarch, any limitations that the sovereign might encounter would be rooted in realpolitik and not in an inherent rule of law…show more content…
However, towards the end of the 19th century there was widespread challenge to this constitutional structure on the grounds of moral and ethical validation of these constitutional laws and all other laws that flow from this supreme constitutional legal paradigm. This challenge to the administrative structure can be understood in the light of Jürgen Habermas’s theory of legal discourse which demarcates all speech acts that lead to legal norm setting into two approaches. According to Habermas, the first kind of speech acts setting legal norms are a product of instrumental reasoning, instrumental reasoning is a type of discourse wherein the consequence of the act is predetermined and its rationale is established within the parameters of prevailing socio-legal language. The second approach to legal norm setting comprises of forwarding one’s viewpoint and merging it with other viewpoints to amalgamate different opinions, this leads to a more organically developed discourse lending more moral and ethical validation to the synthesised laws that this process formulates. An analysis of constitutional laws from the advent of the British Raj to its downfall shows a gradual shift from the fist approach of instrumental reasoning to the second approach of collaborative…show more content…
3 c. 64) and restricted the Court of Directors to four-year terms. It prohibited the servants of company from engaging in any private trade or accepting presents or bribes from the natives. The Act elevated Governor of Bengal, Warren Hastings to Governor-General of Bengal and subsumed the presidencies of Madras and Bombay under Bengal's control. It laid the foundations for a centralized administration in India. Governor of Bengal became the Governor General of Bengal with an executive council of four to assist him. Decisions would be taken by majority and Governor General could only vote in case of tie. The Act named four additional men to serve with the Governor-General on the Supreme Council of Bengal: Lt-Gen John Clavering, George Monson, Richard Barwell, and Philip Francis. A supreme court was established at Fort William at Calcutta. British judges were to be sent to India to administer the British legal system that was used

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