Constitutional Development The system of governance that had evolved in Bengal over centuries was discontinued after the establishment of colonial rule. The colonial system of governance began, initially on a despotic basis but gradually yielded to western model. It had its genesis in the Regulating Act of 1773 culminating in the Government of India Act 1935. Since 1947, constitutional development followed the model established in the colonial period.
The Regulating Act, 1773 According to this Act Bengal and other Presidencies were to be regulated and controlled by a central authority called Governor General-in-Council of the fort william in Bengal. The Council was to consist of four members nominated by Parliament and held office for a period of five years. The Governor General-in-Council had legislative powers to frame and promulgate Regulations subject to publication in the Supreme Court to be established in Calcutta by the King-in-Council of England. This act was followed by a series of charter acts and a few parliamentary acts. The main objectives of the charter acts were to assert the sovereignty of the British Crown over the Indian territories (1813), create structures of provincial governments in India (1833), empower the executive council with a view to facilitating legislations (1853) and so on.
The Government of India Act, 1858 declared the end of company rule, and the beginning of rule by the Crown. Since then the head of the colonial state represented the British Crown, and on that count he was designated as Governor General and Viceroy of India-in-Council. It was provided in the Act that the powers and functions that used to be exercised by the court of directors' and board of control were to be exercised by the Secretary of State for India. A Council of 15 members was formed to assist him. The Secretary of State for India was to be a member of the British cabinet and was responsible to parliament. The Act empowered the crown to appoint the viceroy of India and the governors of the provinces. It also provided for the creation of the Indian Civil Service (ICS) under the control of the Secretary of State for India.
The Indian Councils Act, 1861 The road to representative government in undivided India can be traced back to the Indian Councils Act 1861. Queen Victoria's Declaration of 1858 mentioned that Indians would be associated with the governance of India and of creating representative institutions in order to prepare the people for self-rule. The immediate result of the Declaration was the Indian Council Act, 1861. For the purposes of legislation, the Governor General's Council was reinforced by additional members, not less than six but not more than twelve in number, nominated for two years, of whom not less than half were to be non-officials. Some of these non-official members were to be Indian. The legislative powers of the Governor General-in-Council were extended over all persons, both British and Indian, within the British Indian territories. The Governor General was directed to set up a legislative council for Bengal. The Bengal Legislative Council was set up with twelve members of whom four were Indians. The Governor General's Council was authorized to legislate for the whole of India, and the provincial councils for the provinces, and thus the framework for a federal government was foreshadowed.
Demand for Further Reforms The seventies and eighties of the nineteenth century saw a rapid growth of political consciousness among the Indian people. The western education system, emergence of an educated middle class, and growth of public opinion, political associations, growth of vernacular literature had created a tremendous urge for western institutions of governance. The Indian National Congress was founded in 1885 with a positive programme for acquiring self-rule in phases. In view of the Liberal Government in England and a changed political environment in British India, lord ripon (1880-1884) took the initiative in 1882 to introduce local self-government in India. The Indian National Congress also expressed grave dissatisfaction with the existing authoritarian system of government and had been demanding reforms of the legislative councils. With a view to satisfying the demands of the people Lord Dufferin appointed a committee to examine the issues and make a report. The Indian Councils Act of 1892 was the result of the recommendations.
The Indian Councils Act 1892 The Act expanded the size of the Governor General's legislative council by providing that the number of additional members would be not less than ten and not more than sixteen. The members were to be nominated, subject to the approval of the Secretary of State. It was laid down that two-fifths of the additional members were to be non-official, and the principle of election was conceded in their cases in a limited way, in the sense that after being so elected they had to be nominated by the government. Of the 16 additional members in the legislative council, 6 were official members, 5 were nominated non-official members and 5 were elected, one by the Calcutta Chamber of Commerce, and four from the four provincial councils. Thus, the principle of election, though not from any territorial constituency and of a limited scale, was introduced for the first time in Indian history.
In the formation of the provincial councils of Bengal, Madras and Bombay, the number of additional members was also increased with a minimum of 8 and maximum of 20. The maximum number of additional members of the Bengal Presidency was fixed at 20 and those of the North-Western Province and Oudh at 15. This Act also provided that the members would have the right to ask questions, and to discuss, though not to vote upon, the budget. The Indian Councils Act of 1892 was significant in the sense that it not only increased the number of non-official members of the legislative bodies both at the provincial and central levels, but also introduced the principle of election in a limited way through such constituencies as municipal bodies, district boards, chambers of commerce, university senates and zamindars Association.
Further Reforms In a letter dated 6 June 1906 Lord Morley, the new Secretary of State for India, conveyed to lord minto, the Viceroy of India, his desire to 'adapt English political institutions to the nations who inhabit India'. Under these socio-political conditions Lord Minto appointed a committee with Sir Arundale as its head to report on the necessity of reforms. The bill was drafted in the light of these developments. The British cabinet approved of it and in February 1909 parliament made the bill into an Act.
The Indian Councils Act, 1909 Under this Act the legislative councils, both central and provincial, were enlarged. For the Governor General's Council the membership was raised to 60 and for the legislative councils of Bombay, Madras, Eastern Bengal and Assam, United Provinces of Agra and Oudh, and the Punjab, it was raised to 50. Though the Act maintained the majority of the official members in the Governor General's Council, in the provincial legislative bodies the non-official members attained a majority. When the morley-minto reforms were under consideration the Muslims made a demand for separate Muslim representation commensurate not merely with their numerical strength, but also with their political importance and their contribution to the defence of the British Indian empire. The Muslim claim was admitted and the Act provided for a separate electorate for the Muslims.
The Indian Councils Act of 1909 is remarkable in some very important aspects. First, the most spectacular change brought about by the Act was the abandonment of the majority of the official members in the provincial legislative councils. Second, the system of election was introduced though it could not be held through general territorial constituencies but through such bodies as municipalities, district boards, chambers of commerce, landlords' association and other groups of special interests. Third, the principle of full-scale election was recognized for the first time. Fourth, the principle of a separate electorate for the Muslims was established. Fifth, in the Governor General's Council, the number of non-official members was raised. Sixth, the scope of discussion in the council was enlarged. The budget estimates were to be presented to the Council. Resolutions on official matters could be moved, and supplementary questions were allowed.
Demand for more reforms The reforms under the Act of 1909, despite its progressive nature, failed to satisfy the growing demands of the people. There was no general advance in the local bodies, no real improvement of provincial finance, and the admission of Indians in greater numbers into the public service. The Indian leaders were looking for full-fledged responsible government in India, but these reforms fell far short of it. Even then the moderate politicians believed that the new institutions would be instrumental to make the government responsive to the views of Indian subjects.
Having this in view, after prolonged deliberations and thorough study of Indian affairs in collaboration with the Viceroy, Lord Montagu Chelmsford published a report on Indian constitutional problems in July 1918. The report laid down four governing principles guiding the new constitutional framework: (a) There should be a large measure of popular control in local self-governing bodies; (b) the progressive realization of responsible government should be undertaken in the provinces; (c) the Government of India must remain wholly responsible to parliament; (d) to give effect to the changes the control of parliament and the Secretary of State over the Government of India and the provincial governments must be relaxed. The recommendations contained in the report were embodied in a Bill which was passed by the House of Commons on 23 December 1919 as the Government of India Act, 1919 which was given effect to in 1921.
The Government of India Act, 1919 Its most important feature is the dyarchy in the provinces. The provincial subjects were divided into the 'reserved' and 'transferred' subjects. The reserved subjects, such as law and finance, were under the direct control of the governor who could administer them with the help of the executive council. The transferred subjects, such as public health, education, public works etc, were to be administered by the governor with the help of ministers. This dual arrangement in the provincial government was known as dyarchy. The members of the executive council were to be appointed by the Crown for a term of five years. The ministers were appointed by the governor from among the members of the legislature, and each minister was placed in charge of one or more transferred subjects. They were responsible to the legislature and had to resign if the latter passed a vote of no-confidence. Ordinarily the governor was to act on the advice of the ministers, but he could override their decisions in some areas. Thus, the Act provided for a framework of responsible parliamentary government in the provinces for the first time.
The size of the nine provincial legislatures, known as Legislative Councils, was enlarged. The Act provided that at least 70% of its members would be elected, and not more than 20% of them would be 'official' members. The system of direct election was introduced. The tenure of the Council was fixed at three years, though the governor had the authority to dissolve it earlier. The franchise, however, remained very restricted, only 2.8 percent of the population being enfranchised.
Demand for Further and More reforms The Dyarchy constitution had failed to satisfy the rising demands of Indian political leaders. The inherent defects of this Act also became obvious. The ministers were not given full powers over their departments, and ministerial responsibility was more a myth than a reality. The Act, in fact, offered a parliamentary system without parliamentary responsibility. The transfer of power to elected representatives was only nominal. Real power remained concentrated in the hands of the Governor General. The only redeeming feature of the Act was that the elected members of the legislature got the opportunity to criticize the government. This they did and made it clear that the Government of India Act, 1919 was nothing less than a 'responsible autocracy'. Thus the promise of the right of self-determination to the Indians remained as elusive as ever, and the reforms were condemned by all the political parties as highly unsatisfactory. The Indian National Congress at its annual session in 1919 condemned these reforms as 'disappointing and inadequate', and thus rejected the constitution and later refused to participate in the elections under this constitution.
Simon Commission and the Nehru Report At the end of 1927 the British government appointed a commission under the chairmanship of Sir John Simon to examine the working of the Government of India Act, 1919 and recommend the principles for a new constitution for India. The Congress boycotted the simon commission because of its all-white composition and set up a body, an 'all-party conference', to look into it. This in turn appointed a committee in 1928 with Pandit Motilal Nehru as its chairman to 'consider and determine the principles of the constitution in India'. The Muslim League also rejected the commission, though a faction of it under the leadership of Sir Mohammad Shafi sided with the British government.
The nehru report (the report of the Motilal Nehru Committee), published in 1929, accepted the 'Dominion Status' not as a distant goal but as the 'next immediate step'. The report hoped that the communal problems would be solved happily in free India. It emphasized the dire necessity of provincial autonomy in a federal structure. It recommended for a bi-cameral legislature in India, a senate and a house of representatives for representing the constituent states and the people. It, however, recommended the abolition of a separate electorate and any weightage for the minority communities, and proposed their substitution by a joint electorate with reservation of seats.
Jinnah's Fourteen Points The Nehru Report could not satisfy the Muslim leaders who had always been insisting on weightage in representation and a separate electorate in accordance with the terms of the Lucknow Pact of 1916. In response to the Nehru Report, mohammed ali jinnah gave his Fourteen-point formula for Hindu-Muslim unity in anti-British movements. Jinnah emphasized the need for federal government with full provincial autonomy. He also emphasized the necessity for the continuance of a separate electorate for the Muslims and weightage for them where they were a minority to be balanced by 'under-weightage' in Bengal and Punjab. It also demanded that the Muslims must have a statutory share in the central and provincial cabinets.
Round Table Conferences The recommendation of the Simon Commission satisfied neither the Congress nor the muslim league, which also opposed each other as regards constitutional dialogue. To overcome the deadlock, lord irwin, the Governor General, declared that 'Dominion Status' would be the object of India's Constitutional development; but his statement failed to have any pacifying effect. The Congress began a civil disobedience movement. It did not attend the first Round Table Conference in England in 1930, but all other parties and the princes of the native states did. However, some progress was made in the conference. A general consensus emerged about the next constitution. It should be federal, in the first place; second, all the Indian representatives agreed on the issue of 'Dominion Status' for India; it was agreed that the government should be parliamentary in form; fourth, there was also an agreement that dyarchy should be continued at the centre during the transition period.
The second Round Table Conference was held in 1931 and it was attended by the Congress headed by MK Gandhi. After the conference, the British Government made an award in 1932. It incorporated separate electorates not only for the Hindus and Muslims, but also for the British citizens living in India and the depressed castes. Gandhi threatened a fast unto death against that part of the award which provided for a separate electorate for the depressed castes of Hindus. He considered the Poona Pact, under which a number of seats were reserved for the members of the depressed castes, to be a solution to that problem. The Third Round Table Conference was held in 1932.
The government of India Act, 1935 These conferences provided enough materials to the Joint Select Committee, which was formed to draft the constitutional framework for India. In March 1933 the British Government published a draft of the future constitutional plan for India in the form of a White Paper. In April 1933, the Joint Select Committee discussed the various suggestions offered to it and gave it a final shape. A bill was introduced in the House of Commons on 5 February 1935. It became an Act on 4 June 1935 and received royal assent on 2 August 1935.
The Government of India Act, 1935 is a very lengthy and complicated statute consisting of 321 sections and 10 schedules. The basic features of the Act were: (a) All-India Federation; (b) Central responsibility; (c) Provincial autonomy and (d) Safeguards. The separate electorate system introduced earlier was retained. No representative Federal government as envisaged under the Act was formed in the centre and All India Federation never came into being.'
The Government of India Act, 1935 was received with a chorus of condemnation from the Indian National Congress and the Muslim League, and yet both the parties resolved to participate in the provincial elections of 1937 under this constitution. The participation brought a great victory for the Congress. It obtained an overall majority in the Hindu majority Madras, UP, CP, Bihar and Orissa provinces and emerged as the single majority party in Bombay and Assam provinces. The Congress won 711 of the 1585 seats in provincial legislatures. In the North-Western Frontier province the Red Shirts led by Frontier Gandhi, Khan Abdul Gaffar Khan, declared their solidarity with the Congress. Muslim league and Krishak Praja Party (KPP) coalition government headed by AK Fazlul Huq, leader of the KPP, was formed in Bengal after the 1937 election.
Pakistan Movement Throughout the discussions leading up to the 1935 Act it was assumed that representation of minority communities would be included in the provincial government. The provincial governors were specially instructed to ensure it. In the Muslim-majority provinces like Bengal, Assam, Sind and Punjab a kind of balanced representation was achieved, but the Congress high command refused to initiate Congress-Muslim coalitions in the Hindu majority provinces.
The refusal of the Congress ministries and the discriminatory and repressive nature of Congress rule in the Hindu-majority provinces brought the communal issue to the forefront. Here MA Jinnah's role, first as a mediator and then as the propagator of the two-nation theory became prominent. This is the genesis of the political conviction of Jinnah that in the United India, organised on the basis of one nation and one federal government, the Muslims would have no future as a permanent minority. So in January 1940 Jinnah expounded his two-nation theory. On the basis of the two-nation theory a historic resolution demanding independent states for the Muslim majority areas was passed in the All India Muslim League council conference held in Lahore on 23 March 1940.
The Muslim League's demand which soon came to be known as Pakistan movement further complicated the political situation in India. The British Government, already at war with the Axis powers and desperately in need of Indian support, issued its August offer on 8 August 1940. It offered to create a representative body to settle the constitutional issues and formulate a new constitution after the war. It expected that all parties and communities in India would co-operate with the war effort of the British Government and pave the way for India's attainment of free and equal partnership in the British Commonwealth of Nations. The Congress however, refused to accept the offer and resorted to a civil disobedience movement in August 1942 known as Quiet India movement. The Muslims denounced the Congress move and stated that no constitutional plan would be acceptable to the Muslims of India without the approval of the Muslim League as the true representative of the Muslims.
The Cripps Mission, 1942 The entry of Japan into the war, especially after the fall of Rangoon, made the British Government more worried; it seriously felt the need for the support of all the parties and communities in India. For ensuring that, Sir Stafford Cripps, a member of the War Cabinet, came to India with new proposals comprising a long-term and a short-term plan with a view to satisfying some of the demands of the Indian leaders.
As a part of the long-term plan, the British Government proposed to take steps to create a new Indian Union, which would have the full status of a Dominion. It also proposed that immediately after the end of the war, steps would be taken to set up a constituent assembly to frame a new constitution for India. In its short-term plan, the British Government must retain control of India as a part of their war effort, and an interim government would be formed consisting of the representatives of the major parties in India for the effective conduct of war. The cripps mission failed.
The Simla Conference lord wavell, the Governor General and Viceroy of India, in a speech to the people of India on 14 June 1945, proposed for a conference of political leaders at Simla and make the following suggestions : (a) the Executive Council should be reconstituted so that all its members except the Governor General and Commander-in-Chief would be Indians. The caste Hindus and the Muslims would be equally represented in the council; (b) the portfolio of external affairs would be transferred to an Indian member of the council; (c) this council was to function as the 'Interim Government' till the war was over and an agreement reached on the final constitution of the Indian Union. The Simla Conference failed too. The Congress refused to accept the League's claim to have the right to nominate Muslim members on those bodies, and the League refused to accept the Congress claim to have that right.
The Cabinet Mission Plan, 1946 In March 1946, the British cabinet sent three of its members, Lord Pethic Lawrence, Mr. AV Alexander and Sir Stafford Cripps, to India to make another attempt at settling the differences between the Hindus and the Muslims and helping it attain freedom. They, in consultation with the Viceroy, did their best to help both the Congress and the Muslim League to come to an agreement on the structure of the future government in India. They, however, failed in their attempt and finally announced a plan to solve the constitutional deadlock. Its main points are as follows: (a) It suggested a federal union of India comprising both British India and native states; (b) The union would have authority in foreign affairs, defence, currency, and communications. The Union should have an executive and a legislature constituted by the representatives of the British Indian provinces and the states; (c) Other subjects and the residuary powers should be vested in the provinces; (d) The provinces of British India would form the following three groups : (i) Group 'A' would consist of such Hindu majority provinces as Madras, Bombay, UP, CP, Bihar and Orissa; (ii) Group 'B' would consist of such Muslim majority provinces as the Beluschistan, Punjab, NWFP, and Sind; (iii) Group 'C' would comprise such Muslim majority provinces as Bengal and Assam. Any group may decide to secede from the union. The provinces should be free to form groups with executives and legislatures; each group could determine the provincial subjects to be taken in common; (e) There should be a constituent assembly to frame a constitution for the Union and for groups and provinces. Members of the provincial legislatures would elect the members of the constituent assembly, the number of seat alloted to each province being proportional to its population. The seats would again be divided between the communities in proportion to their numbers; (f) There should be an interim government at the centre.
The Muslim League accepted the Plan on 6 June 1946. The Congress after prolonged discussion accepted the long term scheme of the plan but rejected the proposal for the formation of an interim government. The government declared that even if one major political party accepted the plan it would invite that party to form the interim government and go ahead with giving effect to the Cabinet Mission Plan. Governor General Lord Wavell, however, did not act according to his commitment and did not invite the Muslim League to form the interim government when it accepted the plan. The Muslim League regarded this as a breach of promise by the Governor General. Moreover the statement of Mr. Nehru in Bombay on 10 July 1946 after his election as president of All India Congress replacing Moulana Abul Kalam Azad that the 'big probability is that, from any approach to the question, there will be no grouping' along with his demand for the sovereignty of the proposed constituent assembly, created a deep distrust in the minds of the League leaders. In this situation the Muslim League rejected the plan.
Partition Plan of Lord Mountbatten The British Government thus recognized the inevitability of the Partition of India. The Muslim League wanted partition for the sake of Pakistan. Nehru and Patel, the two prominent Congress leaders also agreed to partition, although Gandhi at first bitterly opposed. When in March 1947 lord mountbatten came to India as the new Governor General, the situation was ripe for the Partition of India. On 3 June 1947, he came out with the details of his partition plan according to which India was partitioned along communal lines under the Indian Independence Act, 1947.
Constitutional Experiments (1947-1970) Section 8 of the Indian Independence Act, 1947 provided that the Government of India Act, 1935 with certain amendments and adaptations would be the working constitution of Pakistan during the transitional period, and indeed it lasted up to 23 March 1956 when the Constitution of the Republic of Pakistan was adopted and put into operation.
First Constituent Assembly The first Constituent Assembly was formed with the members elected in the general elections of 1946 from the areas joining Pakistan. It consisted of 69 members originally, though its membership ultimately increased to 79. Of the 79 members of the assembly, 44 were from East Bengal, 22 from West Punjab, 5 from Sind, 3 from NWFP, 1 from Baluchistan and 4 from the states joining Pakistan. It had the twin functions of acting as the central legislature of Pakistan and framing a constitution for Pakistan. But in this task the Assembly proved to be so tardy that it took 19 months to take only one resolution called the Objective Resolution, which runs as follows: (a) The state would exercise its power and authorities through the chosen representatives of the people; (b) The principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam would be observed; (c) The minorities would be free to profess and practice their religions and develop their own cultures; (d) The government would be federal in form and the units would be autonomous.
The basic principle committee (BPC) submitted its interim report on September 1950. It created a furore in East Bengal because it generated misgivings in the minds of people of East Bengal about the sincerity of the leaders of West Pakistan. When the BPC recommendations were published, the opposition to the report in East Bengal became not only highly vocal but also quite organised. A group of political leaders, journalists, lawyers and teachers, representing all shades of opinion and groups formed a Committee of Action for Democratic Federation in the first week of October 1950. It ultimately led to a National Grand Convention on 14 November 1950. In the convention alternative constitutional proposals for Pakistan as opposed to the BPC recommendations were approved. Faced with this kind of adverse reactions, the Government of Pakistan decided to postpone discussion on the recommendations of the BPC on 21 November 1950. Thus the process of constitution-making was further delayed, and a second draft was produced before the Constituent Assembly not before another two years later, on 22 December 1952.
In 1953, when mohammad ali chaudhury became Pakistan's Prime Minister, he took another initiative to solve the constitution making crisis. He also proposed for a federal structure for Pakistan and came up with the principle of parity between East Bengal on the one hand, and the four units of West Pakistan on the other, parity both in the legislative and executive areas.
The general elections of March 1954 in East Bengal changed the political scenario entirely. In the elections, the united front under the leadership of three senior political leaders, ak fazlul huq, Moulana abdul hamid khan bhasani and huseyn shaheed suhrawardy, routed the ruling Muslim League by capturing 223 out of 237 Muslim seats. AK Fazlul Huq became the Chief Minister of East Bengal on 3 April 1954, but barely had two months passed before the Governor General dissolved the provincial government. The newly elected members of the provincial assembly of East Bengal began demanding resignation of the members of the Constituent Assembly as they had lost the confidence of the people. The Constituent Assembly was thus dissolved on 24 October 1954.
The first Constituent Assembly confronted with such complex problems as determination of the basis of representation in the central government, degree of autonomy to be granted to the provinces, status of the units or provinces in West Pakistan, and the language issue and so on; but in reality it had neither the time nor the seriousness to grapple with the all important problems of constitution-making. In about seven years the Constituent Assembly could meet only for 116 days.
Second Constituent Assembly In May 1955, the Governor General provided for the second Constituent Assembly by issuing a proclamation. It consisted of 80 members, 40 of whom were from East Bengal and 40 from West Pakistan. The members of the assembly were elected in June 1955, and it had its first meeting in July 1955. To pave the way for an effective agreement between the leaders of East and West Pakistan, the second Constituent Assembly went in for the one unit arrangement in West Pakistan by amalgamating all the provinces there into one. Then it framed the constitution which came into force in Pakistan from 23 March 1956.
The Constitution of Pakistan, 1956' The Constitution of 1956 contained 234 articles in 13 parts and 6 schedules. The main features of the Constitution were as follows:
It had a lengthy preamble wherein it was declared that Pakistan would be an Islamic Republic where all authority was to be subject to the supreme power of Allah. The Constitution laid down certain directive principles of state policy. The principles, however, had not the force of law. It contained a bill of rights embodying all rights as we find in the Constitution of western democracies. The government was declared to be a federal one. The judiciary was to act as the guardian of the Constitution. The Supreme Court of Pakistan was to interpret the Constitution and uphold the fundamental rights of the citizens. Both Urdu and Bangla were declared the state languages of Pakistan. The Constitution provided for a parliamentary form of government. The President, who must be a Muslim and should not be less than 40, was the head of the state. The National Assembly was the Parliament of Pakistan. It consisted of 300 members, 150 members elected from East Pakistan and 150 members from West Pakistan for a period of five years. In addition, there should be additional 10 women members, 5 of whom should be from East Pakistan and 5 from West Pakistan. The Constitution provided for the Supreme Court of Pakistan and two High Courts for the two provinces. These courts were authorized to issue writs for the enforcement of fundamental rights. The Supreme Court was the guardian of the Constitution. It could declare any Act passed by the National Assembly ultra vires if it violated the Constitution. The nature of the provincial government provided for by the 1956 Constitution was more or less similar to that of the central government, with a governor and a cabinet headed by the chief minister. The Provincial Assembly was to consist of 300 members to be elected from single-member constituencies for a five-year term. In addition, there were 10 more seats reserved for women for a period of 10 years.
Proclamation of Martial Law The operation of the 1956 Constitution was characterised by political instability at the centre as well as in the provinces. President Iskander Mirza abrogated the Constitution on 7 October 1958 by declaring martial law. The central and provincial governments were dismissed. All political parties were banned. General Mohammad ayub khan made himself the Chief Martial Law Administrator. Within three weeks of the proclamation of martial law in Pakistan Iskander Mirza was removed from the office of President, and General Ayub Khan became the President and Chief Martial Law Administrator at the same time.
Pakistan remained under an authoritarian system of government from 1958 to 1962. With a view to restoring their own brand of democracy the new regime introduced a scheme of local self-government known as basic democracies. When the elections were held under the new system, President Ayub sought a vote of confidence of the 80,000 elected basic democrats, and he secured the mandate from them to frame a new constitution for Pakistan. Accordingly, President Ayub Khan appointed a Constitution Commission on 17 February 1960 with the former Chief Justice Muhammad Shahabuddin to examine the failure of parliamentary government in Pakistan and recommend measures for the future constitution. The commission submitted a report to the President on 6 May 1961. The President, after having the report discussed by different committees of the cabinet and getting it examined at a Governor's Conference, put it to a drafting committee. Thus, a new constitution was promulgated on 1 March 1962.
Constitution of Pakistan, 1962 The Constitution of 1962 was a long and detailed document, containing 250 articles in 12 parts and 3 schedules. The Constitution of 1962 provided for a government which was federal, republican and presidential in form. The President was the head of the state and government. He was elected by an electoral college consisting of the elected members of the basic democracies. He was the real executive. There was a cabinet appointed by the President, which was both subordinate and responsible to him. The President was neither a member of the National Assembly nor was dependent on it for his continuance in office. He could be removed from office only by impeachment. It was in fact the basic departure from the Constitution of 1956.
The Constitution of 1962 provided for 21 principles of policy. These were in regard to an Islamic way of life, national solidarity, fair treatment to minorities, promotion of the interest of backward peoples, opportunities to participate in national life, humane conditions of work, spread of education, social security, provision of basic needs and so on. These were more or less like the Directive Principles of State Policy as laid down in the 1956 Constitution. These principles were, however, ideals and not law. They stated certain ideals which the different organs of the government would try to achieve in the exercise of powers. It provided like the Constitution of 1956 for two state languages for Pakistan, Urdu and Bangla. The English language could also be used for official and other purposes till arrangements were made for its replacement. The Constitution was amended in 1964 incorporating therein fundamental rights of the citizens of the country.
The Constitution of 1962 had a number of federal features: (a) Pakistan was declared a federal state comprising two provinces; (b) There was distribution of powers between the centre and the provinces. The central list of subjects comprised those of national importance and all other subjects were in the provincial lists; (c) There were two sets of government, the central and the provincial, with the subjects and powers defined in the Constitution.
The 1962 Constitution provided for a unicameral legislature, known as the National Assembly of Pakistan. It was to consist of 156 members, one half of whom were to be elected from East Pakistan and the other half from West Pakistan. Three additional seats from each province were reserved exclusively for women. The term of the National Assembly was fixed at five years, but it could be dissolved earlier. The National Assembly could be summoned and prorogued by the President. It could also be summoned if one-third of the total number of members asked for it.
The Constitution provided for the Supreme Court of Pakistan. It was to consist of a Chief Justice and other judges whose number might be determined by law. The Chief Justice was to be appointed by the President, and other judges were to be appointed by the President in consultation with the Chief Justice. The permanent seat of the Supreme Court was in Islamabad, but it was required to sit in Dhaka at least twice a year.
The provincial government was headed by a governor. He was to be appointed by the President, and was subject to President's directions in the exercise of his powers. The executive authority of a province was vested in the governor. There was a council of ministers in the province to be appointed by him. The governor was also empowered to appoint parliamentary secretaries and the advocate-general.
Each province had a unicameral legislature known as the Provincial Assembly. It was to consist of 155 members. Five additional seats in each province were reserved for women only who could contest other seats also. The term of the Provincial Assembly was five years, but it could be dissolved earlier. The Governor of a province was to summon and prorogue the assembly from time to time. The speaker of the assembly also could summon and prorogue it at the request of not less than one-third of the total number of members of the assembly.
Ayub Khan's promulgation of the Constitution of 1962 provoked massive and long- drawn agitation from different sections of the population in both the wings of Pakistan. In the face of popular resistance President Ayub Khan stepped down in favour of General yahya khan, the Chief of Army Staff of Pakistan. He, as the Chief Martial Law Administrator, promulgated martial law in Pakistan on 25 March 1969, abrogated the Constitution of 1962 and dissolved the National Assembly, the two provincial assemblies and the cabinets. He placed the two provinces in charge of two Martial Law Administrators and appointed himself the President of Pakistan on 31 March 1969. On 28 November General Yahya Khan declared that elections for the National Assembly would be held in 1970. For the purpose, he lifted the ban on political activities from 1 January 1970, and in order to give a legal cover to the incoming general elections, he promulgated a Legal Framework Order on 30 March 1970. The new constitution was to be framed on the basis of the Order.
The main features of the Legal Framework Order were as follows: (i) The election would be held on the basis of universal adult franchise. (ii) The National Assembly would consist of 313 members of which East Pakistan would have 169 and West Pakistan 144 members on the basis of population. Each Provincial Assembly would have 300 seats. (iii) The Constitution of Pakistan shall be framed within 120 days of the first sitting of the National Assembly. (iv) The Islamic character of the Constitution must be maintained.
The elections were held in December 1970 and in some constituencies in January 1971 due to devastating cyclone and tidal bores in the costal areas of East Pakistan. The awami league, securing 167 out of 169 seats, emerged as the majority party. The People's Party in West Pakistan secured 88 out of 144 seats. The National Assembly was convened on 3 March 1971. But General Yahya Khan announced the postponement of the session of the National Assembly on 1st March 1971. The announcement sparked off a series of events, uprisings and finally the onset of the war of liberation. All these led to the dismemberment of Pakistan and the emergence of Bangladesh as an independent state on 16 December 1971.
Constitutional history since 1972 Following the Pakistani military crackdown on 25 March 1971, the elected members of the National Assembly from East Pakistan and all the members of East Pakistan Assembly met at Mujibnagar, constituted themselves into a Constituent Assembly and formed a Government of Bangladesh-in-exile with a view to legalising the War of Independence. They adopted a legal instrument, the proclamation of independence on 10 April 1971 with retrospective effect from 26th March. The Proclamation served as the Provisional Constitution. It provided for a presidential system of government in Bangladesh. The President was declared the supreme commander of the armed forces; he was to exercise all executive, legislative and judicial powers of the republic; he had the powers to summon and adjourn the constituent assembly and do 'all other things that may be necessary to give to the people of Bangladesh an orderly and just government'. He had the power to appoint the prime minister. This legal document became the fountain of law and authority.
The Proclamation of Independence made Bangladesh a sovereign People's Republic. It further declared that Bangladesh would observe and give effect to all duties and obligations that devolved on it as a member of the family of nations under the Charter of the United Nations. With the establishment of Bangladesh as a sovereign Republic after the surrender of the Pakistan Army on 16 December 1971, this proclamation remained a significant document both from the historical and constitutional point of view, and it continued to remain the fundamental law of the land till the framing of the constitution.
The Laws Continuance Enforcement Order The Acting President, in exercise of the powers conferred on him by the Proclamation, issued the Laws Continuance Enforcement Order on 10 April 1971. It was made effective from 26 March 1971 in order to ensure continuity in all areas of administration. This order adopted and made effective all the existing laws of Pakistan subject to the proclamation. It provided that all officials of the government, civil, military, judicial and diplomatic, who would take the oath of allegiance to Bangladesh, would continue in their offices on terms and conditions of service so long enjoyed by them. The administration of such oath was to be arranged by the district judges, magistrates and diplomatic representatives within their jurisdictions.
The Provisional Constitution of Bangladesh Order, 1972 On 11 January 1972 President sheikh mujibur rahman issued a Provisional Constitution Order. This Order changed the nature of government. The presidential form was substituted by the cabinet form of government. Its main features were: (i) There should be parliamentary democracy in Bangladesh in accordance with the will of the people; (ii) There should be a cabinet of ministers with the prime minister as its head; (iii) The president should act and exercise his functions on the advice of the prime minister; (iv) The President should appoint a member of the Constituent Assembly the prime minister who commanded the confidence of the majority members of the constituent assembly. All other ministers should be appointed by the President on the advice of the prime minister; (vi) There should be a constituent assembly comprising Bangladeshis who had been elected to the seats of the National Assembly and the Provincial Assembly in December 1970 and 17 January 1971, who are not otherwise disqualified by or under any law; (v) In the event of a vacancy in the office of the President at any time prior to the framing of the constitution by the constituent assembly, the cabinet should appoint a Bangladeshi citizen as the President.
There should be a high court of Bangladesh which would consist of a chief justice and as many judges as may be appointed from time to time. One significant point to be noted here is that unlike the Constituent Assembly of Pakistan the Constituent Assembly of Bangladesh was not given any law-making function; it was solely responsible for making the constitution of the country. The law-making power continued to remain vested in the executive, and the Proclamation of Independence continued to remain as the supreme law till the constitution was put into effect on and from 16 December 1972. The executive till then remained unaccountable to anybody or to any institution whatsoever.
Constitution, 1972 The beginning of the constitution-making process was made when the President issued the Constituent Assembly of Bangladesh Order, 1972 on 23 March 1972. The Order defined the Constituent Assembly and its functions in great detail.
Though the total number of members who were elected to the National Assembly and Provincial Assembly was 469, a few of them had died and some were disqualified. Only 404 took part in the proceedings of the Constituent Assembly. The Assembly held its first meeting on 10 April 1972. On the second day of the sitting a Constitution Drafting Committee of 34 members was formed with Dr. Kamal Hossain as its chairmen. The Constitution Bill was introduced in the Assembly on 12 October for consideration. Its first reading began on 19 October and continued till 30 October. The second reading took place from 31 October to 3 November. The third reading began on 4 November and it approved 65 amendments to the Constitution Bill and adopted and enacted the Constitution on 4 November. The Constitution was given effect to from 16 December 1972.
The Constitution as adopted and enacted in 1972 contained a Preamble, 153 Articles divided into 11 parts, and four schedules. The main contents of the Constitution are:
(i) The Preamble The Preamble, which embodied the collective memories and national aspirations, affirmed that the 'high ideals of nationalism, socialism, democracy and secularism that inspired our heroic people to dedicate themselves to, and sacrifice their lives in, the national liberation struggle', would be the fundamental principles of the Constitution. It also pledged that fundamental aims of the state shall be to realize through the democratic process a socialist society, free from exploitation- a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens.'
(ii) New Nationhood Part I of the Constitution was the definitive and formal manifestation of a new nationhood. It has declared Bangladesh as a sovereign unitary people's Republic. It has stated the state territory, the state language, the national anthem, the national flag, the national emblem, the national flower and the national identity. It has also declared that all powers in the Republic belong to the people and the constitution as the supreme law of the Republic, and any other law inconsistent' with it shall to the extent of inconsistency shall be void.'
(iii) Fundamental Principles of State Policy Part II of the Constitution has contained a declaration of social and economic goals of the nation in the form of 'Fundamental Principles of State Policy'. It has defined the four basic principles as mentioned in the Preamble. It has affirmed that 'Bangali' nationalism is rooted in the unity of the people from its identity of language and culture and attainment of independence through the determined struggle in the War of Independence (Article 9). Socialism has been defined as a 'socialist economic system' aiming at ensuring the attainment of a just and egalitarian society, free from the exploitation of man by man (Article 10). Democracy has been envisaged as a system in which fundamental human rights, freedom and dignity of persons would be guaranteed and effective participation of the people would be ensured through their elected representatives at all levels of administration (Article 11). Secularism has been defined as the elimination of all forms of communalism, abuse of religion for political purposes and discrimination on the basis of religion (Article 12). Moreover, emancipation of peasants and workers from all forms of exploitation; provision of such basic necessaries of life as food, clothing, shelter, education and medical care to all citizens; the right to employment with recreation and leisure and such other facilities to the citizens have been made the national goal. The Fundamental Principles of State Policy are mere pledges, though not enforceable in the court, should be applied by the state in the making of laws and should be a guide to the interpretation of the Constitution and other laws of Bangladesh.
(iv) Fundamental Rights of the Citizens Part III of the Constitution has dealt with the fundamental rights of the citizens. Article 26 of the Constitution has asserted that the state shall not make any law inconsistent with this part, and any law so made shall to the extent of such inconsistency be void. These include such rights as equality before law, equal opportunity in public employment or office, equal protection of law, right to life and liberty, safeguard against arbitrary arrest and detention, freedom of movement, freedom of assembly, freedom of association, freedom of speech and expression and of the press, freedom of religion and right to property. The right to move the Supreme Court in accordance with Article 102 for the enforcement of these rights has also been guaranteed (Article 102). Most of the fundamental rights have been subject to 'reasonable restrictions imposed by law' in the interest of 'the security of the state', or 'decency' or 'morality'. Fundamental rights guarantees most of the important universal declaration of human rights adopted on 10 December 1948 by the United Nations General Assembly.'
(v) Form of Government (Executive, Legislature, Judiciary) Parts IV, V and VI of the Constitution have mainly described the structure of Bangladesh Government. The form of government as provided for in the Constitution has been parliamentary democracy modelled on the British system. The head of the state is the President who would be elected by the members of the jatiya sangsad for a term of 5 years and removed only through impeachment by at least two-thirds majority of the members of the Jatiya Sangsad. Like the British King or Queen, he is the constitutional head, is not personally answerable in any court and during his term of office no criminal case shall be commenced against him and he shall not be arrested or imprisoned. He would appoint as prime minister a member of the Jatiya Sangsad (Parliament), who appeared to him to command the support of the majority of members of the Sangsad. In the exercise of his functions, the President is required to act on the advice of the Prime Minister except in the appointment of the Prime Minister and the chief justice, who, in fact, is the chief executive. The Prime Minister is the head of the cabinet, 'central to its formation, central to its life and central to its death'. The cabinet is the executive arm of the government. Though the cabinet is collectively responsible to Jatiya Sangsad and executive power is exercised in the name of the President by the Prime Minister, power of the Prime Minister to remove a minister cuts at the root of such collective responsibility by making the Prime Minister a democratic autocrat.'
A major theme of the Constitution is to make the unicameral Jatiya Sangsad not only the law making body but also the authority to appoint the executive body, the cabinet and control it in principle but such aim is frustrated by the autocratic power exercisable by the Prime Minister, as the leader of the ruling party, by pressing into service Article 70 to compel a member of the Sangsad to vacate his seat in the Sangsad. It consists of 300 members, to be elected from 300 single-member constituencies on the basis of universal adult franchise. In addition to this, there are another 15 seats reserved for 10 years for women to be elected by the members of the Sangsad. Jatiya Sangsad elects the speaker and a Deputy Speaker. During the vacancy in the office of the President or inability to discharge functions of his office the speaker discharges the functions. The speaker and in his absence the deputy speaker presides over the sitting of the' Sangsad and conducts its business. The' president has no veto power, although a bill passed by it requires the assent of the President to be an Act. The Jatiya Sangsad is also the guardian of national finance, and no tax can be imposed without its sanction.
Judicial power has been vested in a judiciary with the Supreme Court at the apex. This court consists of two divisions, appellate and high court divisions. The Chief Justice of Bangladesh is appointed by the President and holds office up to the age of 65 years. Other judges are appointed by the President in consultation with the Chief Justice. The control and discipline of the employees in the judicial service are vested in the Supreme Court. Administrative tribunals can also be established by law to deal with matters relating to the terms and conditions of persons in the service of the Republic. The high Court division not only hears appeals and' revisions from the decisions of the courts subordinate to it but also exercises judicial review of all executive actions under Article 102 and can declare any such action or proceeding without lawful authority or of no legal effect, direct enforcement of area of the fundamental rights; to do or refrain from doing anything required by law to do or not permitted by law to do, as the case may be; declare detention in custody of a person without lawful authority and also holding of any public office by any person without lawful authority. In exercise of such power High Court Division can also declare any law void either under Article 7(2) on the ground its inconsistency with the constitution or under Article 26 on the ground of its in consistency with the fundamental rights. Law declared by the Supreme Court is binding on all courts subordinate to it. All authorities, executive and judicial, shall act in aid of the Supreme Court. Appellate Division hears and determines appeals from judgments, decrees, orders or sentences of the High Court Division, can do complete justice in any matter pending before it and can review its previous judgments.
(vi) Elections, Services and Audit Parts VII, VIII and IX of the Constitution deal with elections, audit and civil services. The Chief Election Commissioner, Comptroller and Auditor-General, and chairman and members of the bangladesh public service commission are independent in the exercise of their functions and can be removed 'in the like manner and on the like grounds as a judge of the Supreme Court' (Articles 118, 129 and 130).
(vii) Amendment of the Constitution Part X of the Constitution is concerned with the amendment process. It has been provided that any provision of the constitution can be amended or repealed by an Act of the Jatiya Sangsad passed by not less than two-thirds of its members.
(viii) Miscellaneous Provisions In Part XI of the Constitution there are some miscellaneous provisions. The first schedule contains a list of the laws that have been kept beyond judicial review; the second prescribes rules regarding the election of the President; in the third the proforma of oaths to be taken by persons of certain elevated positions has been inserted. The fourth one contains provisions for transition to constitutional government.
Amendments of the Constitution of Bangladesh The Constitution of the People's Republic of Bangladesh has so far been amended fifteen times. The fifteen constitutional amendment Act and the numerous proclamation orders have been responsible for bringing in profound changes in the basic character of the Constitution. As a result, the nature of the Bangladesh Constitution today is considerably different from the original one. [Emajuddin Ahamed]