The Historical Underpinnings and Evolution of the Indian Constitution can be traced to many regulations and Acts passed before Indian Independence. These can be summarized under two heads:

HISTORICAL BACKGROUND OF INDIAN CONSTITUTION

Developments under the Company Rule (1773-1858)

The British government passed many laws and acts in India which elicited different reactions from different parts of the Indian society and played a pivotal role in the modeling of either the Indian polity or the Society. Some of the most important and consequential acts are listed below:

1. Regulating Act of 1773

• It designated the Governor of Bengal as Governor General of Bengal. It created an executive council of four members to assist him. Lord Warren Hastings became the first Governor General of Bengal.

• The governors of Bombay and Madras were made subordinate to the Governor-General of Bengal. This started a tendency towards ‘centralization’ of power, which continued up till the Charter Act, 1833.

• A Supreme Court was established as the Apex Court at Calcutta in 1774, comprising one Chief Justice and three other judges.

• It strengthened the control of British government over the Company by requiring the Court of Directors (governing body of the Company) to report on its revenue, civil and military affairs in India. It prohibited company officials from engaging in private trade
and from accepting gifts from Indians.

• It has constitutional importance as it laid the principles of central administration in India.

2. Pitt’s India Act of 1784

• Commercial and political functions of the company were separated. The Court of Directors managed the commercial activities while the Board of Control managed political affairs.

• The Board of Control in England was mandated to supervise the East India Company's affairs. It consisted of six members, which included one Secretary of State from the British cabinet, as well as the Chancellor of the Exchequer.

• The Act reduced the number of members of the Executive Council to three, of whom the Commander-in-Chief was to be one. It also modified the Councils of Madras and Bombay on the pattern of that of Bengal.

• It empowered the Board of Control to supervise and direct all operations of civil and military revenues of the British possessions. Thus, it paved the way for evolution of dual government.

• The Company’s territories were for the first time called ‘British possession in India’

Analysis of the Act

As pointed above (through formation of Board of Control), it introduced the Dual System of government: by the Company and by a Parliamentary Board, which lasted till 1858.

• The Board of Control had no independent executive power.

• It had no patronage. Its powers were veiled.

• It had access to all the Company's papers and its approval was necessary for all dispatches that were not purely commercial. Also, in case of emergency the Board could send its own draft to the Secret Committee of the Directors to be signed and sent out in its name.
Thus, the Act placed the civil and military government of the Company in due subordination to the Government in England.

3. Charter Act, 1813

• This act did not bring about any significant changes in the administration of India.

• Continental System introduced by Napoleon led to restriction on British’s European trade. It forced British companies and merchants to diversify their trade away from Europe. Hence, they wanted end of East India Company’s monopoly over Indian trade.

In this context, Charter Act ended Company’s monopoly in trade with India.

• However, trade in tea and trade with China remained exclusively with Company.

• It had a provision that Company should invest Rs. 1 Lakh every year on the education of Indians. However, this was not implemented in effect.

• It empowered local governments to impose taxes and punish for their non-payment subject to the jurisdiction of Supreme Court.

4. Charter Act, 1833

• Also known as ‘Saint Helena Act’, it brought about the final step of ‘centralization’, as mentioned earlier.

• It made the Governor-General of Bengal as the Governor-General of India and vested in him all the military and civil powers. Lord William Bentinck was the first Governor-General of India.
• All law-making powers were conferred on the Governor-General and his Council.
• Thus, the Act created for the first time, a government of India having authority over the entire territorial area possessed by the British in India.

• Laws under previous acts were called as ‘Regulations’, while those under Charter Act, 1833 were called as ‘Acts’.

• The Act ended the East India Company’s monopoly over trade with India. It became a purely administrative body. Trade with India was open to all British subjects.

• It attempted to codify all the Indian Laws. In this regard, it directed the government to set up an Indian Law Commission. Hence, India’s first law commission was set up with Lord Macaulay as its Chairman.

• It tried to bring about a system of open competition for selection of Civil Servants. The provision was however negated by opposition of the Court of Directors of Company.

5. Charter Act, 1853

It’s considered as a significant constitutional landmark:

• For the first time, legislative and executive functions (of the Governor General’s Council) were clearly demarcated.

• It provided for addition of six new members under a body called ‘Indian Legislative Council’ or ‘Central Legislative Council’. Four out of six members were appointed by the provisional governments of Madras, Bombay, Bengal and Agra.
• Thus, it marked the beginning of Parliamentary system in India.

• It introduced an open competition system for selection and recruitment of civil servants.

• It implied that the ‘covenanted’ civil services were now open for Indians too.
• Macaulay Committee was set up to recommend for enforcing the same in 1854.

• It introduced for the first time, local (provincial) representation to Indian Legislative Council. Four members were appointed by the local governments of Madras, Bombay, Bengal and Agra.

• It extended Company’s rule and allowed it to retain the possession of Indian territories on trust for British Crown. But, it did not specify any particular period, unlike previous Charters. This was an indication that the Company’s rule could be terminated at any time the Parliament liked.

Developments under the British Crown’s Rule (1858-1947)

1. Government of India Act, 1858

The Act is also known as the ‘Act for the Good Government of India’. After the 1857 revolt, the rule of the company was ended and transferred the powers of government, territories and revenues to the British crown. The Act was largely confined to improvement of the administrative machinery. It did not alter significantly the system of government that prevailed in India.

Few other important features were:

• It ended the system of double government by abolishing the Board of Control and Court of Directors.
• It established a new office of Secretary of State for complete authority and control over Indian administration.
• The Secretary of State would be a member of the British Cabinet and was  responsible to the British Parliament.
• He was assisted by a 15-member Council in India.
• The Council was an advisory body.
• The Secretary of State was its chairperson.

Thus, it established control of British Parliament over Indian affairs. Administration of the country was now highly centralized.

2. Indian Councils Acts:  They were total 3 in number: 1861, 1892 and 1909.

A. Indian Council Act of 1861

o Indians were, for the first time, made a part of the law making process. The Viceroy could now nominate a few Indians as non-official members.

o It initiated the process of decentralization by restoring powers to Bombay and Madras Presidency.

o It provided for establishment of new legislative councils for Bengal, North-Western Frontier Province (NWFP) and Punjab, which were established in 1862, 1866 and 1897 respectively.

o It also gave recognition to the ‘portfolio’ system, introduced by Lord Canning in 1859.

o It empowered the Viceroy to issue ordinances.

B. Indian Council Act  of 1892

o It increased the number of non-official members in the Central and provincial legislative councils, but maintained official majority in them.

o The Act made a limited and indirect provision for the use of election in filling up some of the non-official seats in both, Central, as well as, Provincial Legislative Councils. Thus, the element of election was introduced for the first time. However, the word ‘nomination’ was used instead of ‘elections’.

o It increased the functions of legislative councils:

1. Power of discussing budget was granted.
2. Questions could now be addressed to the Executive

C. Indian Council Act of 1909 (Morley-Minto Reforms)

o It increased the number of seats of legislative councils, both at central and provincial levels. The number of members of the Central legislative council was increased from 16 to 60.

o It retained official majority in Central Legislative Council but allowed the provincial legislative councils to have non-official majority.

o Members of legislative councils were given wider deliberative powers. They could now ask supplementary questions, move resolutions on budget.

o It provided for a provision for Indians to participate in executive councils. Satyendra Prasad Sinha became the first Indian to become listed on the Viceroy’s Executive Council. He was appointed as the law member of the British ministry.

o It introduced the system of communal representation for Muslims by accepting the concept of ‘separate electorate’. Under this, the Muslim members were to be elected only by the Muslim voters. Thus, the Act ‘legalized communalism’ and Lord Minto came to be known as Father of Communal Electorate.

3. Government of India Act, 1919 (Montagu-Chelmsford Reforms)

In 1917, the British Government declared, for the first time, that its objective was the gradual introduction of responsible government in India (Secretary of state Montagu’s declaration). The Government of India Act, of 1919 was thus enacted, though not completely in line with the above stand.

Following are its important features:

Relaxation of central control over the provinces by demarcating the central and provincial subjects. Respective legislatures at centre and provinces were authorized to make laws on their respective subjects. However, the basic government structure was largely centralized and unitary.

• Dyarchy was introduced at the level of provinces.

• Dyarchy implies division of governance subjects into two parts.
• These two parts were namely: transferred subjects(to be administered by the Governor with the aid of ministers) and reserved subjects (to be administered by the Governor and his Executive Council without being responsible to the legislature)

• Bicameralism was introduced for the first time. It was introduced at the Centre.

• Direct elections were introduced for the first time.

• Franchise was granted to some limited people on foundation of property, tax and education.

• Separation of central budget from provincial budget.

• It provided for the establishment of a Public Service Commission. Hence, a Central Public Service Commission was set up in 1926 (on recommendation of Lee Commission, 1923-24).

• It extended the principle of communal representation by providing separate electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans.

• It provided for the appointment of a statutory commission to inquire into and report on its working after ten years of its coming into force

4. Government of India Act, 1935

In line with the 1919 Act, the British Government announced the appointment of a sevenmember statutory commission under the chairmanship of Sir John Simon to report on the condition of India under its new Constitution. All members of the commission were British and, hence, all parties boycotted the commission. To consider the proposals of commission, the British Government convened three round table conferences of the representatives of the British Government, British India and Indian princely states. On the basis of these discussions, a ‘White Paper on Constitutional Reforms’ was prepared and submitted for consideration of a British Parliamentary Committee. Recommendations of this committee were incorporated (with certain changes) in Government of India Act of 1935. This Act has a singularly important role to play in framing of the Constitution in its current form, purely owing to the fact that several features of this Act have been incorporated, one way or the other, by our Constitution makers. Also, the Act endeavoured to give a written Constitution to the country. Further, after centuries, Indians got an opportunity to assume responsibility of running the administration of their country.

Some of its prominent features were:

• It provided for the establishment of an All-India Federation consisting of provinces and princely states as units. The Act divided the powers between the Centre and units in terms of three lists - Federal List, Provincial List and Concurrent List. Residuary powers
were given to the Viceroy. However, the federation never came into being as princely states did not join it.

• It abolished dyarchy introduced in the provinces by the GOI Act, 1919 and introduced ‘provincial autonomy’ in its place. The provinces were allowed to act as autonomous units of administration in their defined spheres. Moreover, the Act introduced responsible governments in provinces, that is, the Governor was required to act with the advice of ministers responsible to the provincial legislature. This came into effect in 1937 and was discontinued in 1939.

• It provided for adoption of dyarchy at the Centre. Consequently, federal subjects were  divided into reserved subjects and transferred subjects. However, this provision of the Act did not come into operation at all.

• Bicameralism was introduced in six out of eleven provinces. Thus, the legislatures of U.P., Bihar, Assam, Bengal, Madras and Bombay came to consist of two houses - the Legislative Assembly and the Legislative Council, whereas other provinces consisted of one House i.e. Legislative Assembly. The membership criteria of these houses varied from province to province. At the centre, the federal legislature consisted of two houses, the Council of States and Federal Assembly consisting of 260 and 375 members  respectively. The Council of States (Upper House) was a permanent body, one-third of whose members were to retire every three years.

• A Federal Court was established at the Centre.

Besides the above, it also contained the following provisions:

•  Formation of the provinces of Sindh and Orissa.
• It further extended the principle of communal representation by providing separate electorates for depressed classes (scheduled castes), women, and labour (workers).
• Separation of Burma and Aden from India.
• The Indian Council was abolished and a few advisers, varying from 3 to 6, were appointed to advise the Secretary of States in his policy formulation towards India.
• The Secretary was normally not expected to interfere in the Indian affairs, which were to be carried out by Governors.
• With respect to the changes brought in the Federal Government, the Viceroy remained its head. He exercised a wide range of powers concerning administration, legislation and finance.
• The Act created provisions for reserved subjects, to be looked after by the Viceroy through Executive Councilors. Similarly, the transferred subjects were also to be under the Viceroy, aided by Indian ministers, not more than 10 in number, selected from the legislature.
• In case of the provincial government, the Governor carried on the administration with the help of a council of ministers selected by him from among the members of the provincial legislature. The composition of the provincial legislature also varied from one province to the other.
• It provided for the establishment of a Reserve Bank of India to control the currency and credit of the country.
• It extended the franchise and about 10 per cent of the total population got the voting right.

Critical Analysis of the Act

Critical Analysis of the Act

It is said that the act was nothing but ‘sugar-coated quinine’:

• The proposed scheme for establishing a Federation proved to be a non-starter, as the princely states did not join it.

• Though it introduced Dyarchy in the Centre and autonomy in Provinces, but the powers of the elected or nominated members were limited. The Act had retained control of the Central Government over the Provinces in a certain sphere – by requiring the Governor to act ‘in his discretion’ or in the exercise of his ‘individual judgment’ in certain matters. In such matters the Governor was to act without ministerial advice and under the control and directions of the Viceroy, and, through him, of the Secretary of State.

• The legislative powers of both the Central and Provincial Legislatures were subject to various limitations and neither could be said to have possessed the features of a sovereign Legislature. Consider, for instance, the following:

o Apart from the Viceroy’s power of veto, a Bill passed by the Central Legislature was also subject to veto by the Crown.

o The Viceroy might prevent discussion in the Legislature and suspend the proceedings in regard to any Bill if he was satisfied that it would affect the discharge of his ‘special responsibilities’.

o Apart from the power to promulgate Ordinances during the recess of the Legislature, the Viceroy had independent powers of legislation, concurrently with those of the Legislature. Thus, he had the power to make temporary Ordinances as well as permanent Acts at any time for the discharge of his special responsibilities.

o No bill or amendment could be introduced in the Legislature without the Viceroy’s previous sanction, with respect to certain matters, e.g., if the Bill or amendment sought to repeal or amend or was repugnant to any law of the British Parliament extending to India or any Viceroy’s or Governor’s Act, or if it sought to affect matters as respects which the Viceroy was required to act in his discretion.
There were similar restraints on the Provincial Legislature.

The Instruments of Instructions issued under the Act further required that Bills relating to a number of subjects, such as those derogating from the powers of a High Court or affecting the Permanent Settlement, when presented to the Viceroy or a Governor for his assent, were to be reserved for the consideration of the Crown or the Viceroy, as the case might be.

Other Intermediate Developments

1. Communal Award

• After the Second Round Table Conference, in August 1932, the British PM, Ramsay Macdonald gave his ‘Communal Award’. According to it, separate representation was to be provided to the forward castes, lower castes, Muslims, Buddhists, Sikhs, Indian Christians, Anglo-Indians, Europeans and Dalits. The Dalits were assigned a number of seats to be filled by election from special constituencies in which voters belonging to the Dalit community only could vote.
• The award was opposed by Mahatma Gandhi, who fasted in protest against it. After lengthy negotiations, Gandhi reached an agreement - called the Poona Pact - with Dr. Ambedkar to have a single Hindu electorate, with Dalits having seats reserved within it.

2. Cripps Mission

In March 1942, Sir Stafford Cripps, a member of the British cabinet came with a draft declaration on the proposals of the British Government. These proposals were to be adopted at the end of the Second World War, provided the Congress and Muslim League could accept them.

According to the cripps proposals

o The Constitution of India was to be framed by a Constituent Assembly elected for the purpose by the Indian people.

o The Constitution should provide India, a dominion status.

o There should be one Indian Union comprising all the provinces and Indian states.o Any province (or Indian state) not accepting the Constitution would be free to retain its constitutional position existing at that time, and with such a non-acceding province, British Government could enter into separate constitutional arrangements.

3. Cabinet Mission

In March 1946, Lord Clement Atlee sent a Cabinet Mission to India consisting of three Cabinet Ministers, namely Lord Pethick Lawrence, Sir Stafford Cripps and Mr. A.V. Alexander. The object of Cabinet Mission was to help India achieve its independence as early as possible, and to set up a Constitutional Assembly. According to the Cabinet Mission Plan, there was to be a Union of India, comprising both British India and the States, having jurisdiction over the subjects of foreign affairs, defence and communication. All residuary
powers were to be vested in the provinces and the states. The Union was to have an executive and a legislature consisting of representatives of the provinces and the states. The provinces could form groups with executives and legislatures, and each group could be competent to determine the provincial subjects.

4. The Mountbatten Plan

The plan for transfer of power to the Indians and partition of the country was laid down in the Mountbatten Plan. It was given a formal shape by a statement made by the British Government on June 3, 1947.

5. Indian Independence Act, 1947

On February 20, 1947, the then British Prime Minister, Clement Atlee, declared that the British rule in India would end by June 30, 1948. Other provisions of the Indian

Independence Act, 1947 were:

• End of British rule in India was declared independent and sovereign.

• Partition of India and Pakistan.

• Abolition of the post of Viceroy and appointment of a Governor-General for both India and Pakistan.

• Empowering the Constituent Assemblies of both the dominions of India and Pakistan with legislative and executive powers to frame and adopt a Constitution for their respective nations.

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