Indian Polity & Constitution

HISTORICAL BACKGROUND OF
INDIAN CONSTITUTION

The British came to India in 1600 as traders, in the form of East India Company, which had the exclusive right of trading in India under a charter granted by Queen Elizabeth I.
In 1765, the Company, which till now had purely trading functions obtained the ‘Diwani’ (i.e., rights over revenue and civil justice) of Bengal, Bihar and Orissa. This started its career as a territorial power.
In 1858, in the wake of the ‘sepoy mutiny’, the British Crown assumed direct responsibility for the governance of India.
This rule continued until India was granted independence on August 15, 1947.
As suggested by M N Roy in 1934, a Constituent Assembly was formed for this purpose in 1946.
On January 26, 1950, the Constitution came into being (the date when it was adopted).
However, various features of the Indian Constitution and polity have their roots in the British rule. They are explained here in a chronological order:v The British came to India in 1600 as traders, in the form of East India Company, which had the exclusive right of trading in India under a charter granted by Queen Elizabeth I.

Regulating Act of 1773

This Act was the first step taken by the British Government to control and regulate the affairs of the East India Company in India
It recognised, for the first time, the political and administrative functions of the Company
It laid the foundations of central administration in India.
It designated the Governor of Bengal as the ‘Governor-General of Bengal’ and created an Executive Council of four members to assist him.
The first such Governor-General was Lord Warren Hastings.
It made the governors of Bombay and Madras presidencies subordinate to the governor general of Bengal, unlike earlier, when the three presidencies were independent of one another.
It provided for the establishment of a Supreme Court at Calcutta (1774) comprising one chief justice and three other judges.
It prohibited the servants of the Company from engaging in any private trade or accepting presents or bribes from the ‘natives’.
It strengthened the control of the 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.

Amending Act of 1781

The act provided that the Governor General and council of Bengal were not to be subject to the Jurisdiction of the supreme court.
No action for wrong or injury was to lie in the Supreme Court against any person what so ever exercising a judicial office in the country courts.
The supreme court was not to have or exercise any jurisdiction in matters concerning the revenue or the regulations framed by the Governor-General and council.
The act empowered the Governor-General and council to frame, from time to time, regulations for the provincial courts and councils.

Pitt’s India Act of 1784

Under this Act, the Company’s territories in India were for the first time called the ‘British possessions in India’.
British Government was given the supreme control over Company’s affairs and its administration in India.
The act established a Board of 6 Commissioners called ‘Commissioners for the affairs of India, popularly known as the Board of Control. This consisted. of the chancellor of the Exchequer, a secretary of state and four privy counselors who were all unpaid.
In India, the members of the Governor-General’s council were reduced to three, one of whom was to be the commander-in-chief.
It distinguished between the commercial and political functions of the Company.
It empowered the Board of Control to supervise and direct all operations of the civil and military government or revenues of the British possessions in India.
The Court of Directors were to manage the commercial affairs. Thus, it established a system of double government.

Act of 1786

The act empowered the Governor General the discretionary power to override his council in certain circumstances and act on his own responsibility.
It enabled the offices of Governor General and commander in chief to be united in the same person if this was considered necessary.

Charter Act of 1793

The company’s charter and exclusive trading privileges were renewed for twenty years.
The Governor-Generals’ and Governors’ powers to overrule their council were emphasized.
Governor-General’s grip over the presidencies was tightened with the power to issue orders and directions to any Government and presidency in India during his absence from Bengal without previous consultation with his council.
He was empowered to exercise all executive power rested in a Government.
A ‘Regular code’ of all regulations that could be enacted for the internal Government of the British territory in Bengal was framed.
It laid the foundation of government by written laws and regulations in British India.

Charter Act of 1813

The act retained to the company its monopoly of trade with china and also into trade in tea.
The Act threw open to all British subject the rest of the trade with India, subject to some conditions. Thus, the East India Company’s monopoly over Indian trade was ended.
The act provided for the separation of the commercial accounts of the company from its territorial accounts.
The act declared that the Government’s duty was to promote the interest and happiness of the native inhabitants of India.
The Governor-General was authorised to spend not less than a lakh of rupees a year on the revival and encouragement of learning. The provision represents the first attempt on the part of the British Government at imposing an obligation on the company of fostering education in India.

Charter Act of 1833

The East India Company lost its trading privileges (the monopoly of the china trade).
The company became a purely administrative body under the crown.
The Board of control was given responsibility to superintend, direct and control the affairs of company relating to the Government or revenues of the Indian territory.
The Governor-General of Bengal become the Governor-General of India.
The act provided for the ‘Codification of law’ in India. It empowered the Government to appoint a Law commission which had to codify the ‘Indian penal code’ and ‘Codes of civil and criminal laws’ from the prevalent English laws, presidency regulations, Hindu law, Muslim law, customary law etc.
The act introduced open competition for entry into the covenanted service.
The system of excluding Indians from all high offices was disfavored and provided Indians with an opportunity of entering into the company’s service.

Charter Act of 1853

It separated, for the first time, the legislative and executive functions of the Governor General’s council.
It established a separate Governor-General’s legislative council which came to be known as the Indian (Central) Legislative Council.
It introduced an open competition system of selection and recruitment of civil servants. The covenanted civil service was thus thrown open to the Indians also.
Accordingly, the Macaulay Committee (the Committee on the Indian Civil Service) was appointed in 1854.
It introduced, for the first time, local representation in the Indian (Central) Legislative Council. Of the six new legislative members of the governor-general’s council, four members were appointed by the local (provincial) governments of Madras, Bombay, Bengal and Agra
The law member was made a full member of the Executive council with power to sit and vote.
The Act appointed a law commission in London for the codification of Indian laws. The commission drafted the code of civil procedure (1859) and the code of criminal procedure (1861).
The position of the president of the Board of control was made equal to that of a secretary of state.

Government of India Act of 1858

This significant Act was enacted in the wake of the Revolt of 1857—also known as the First War of Independence or the ‘sepoy mutiny’.
The act known as the Act for the Good Government of India, abolished the East India Company, and transferred the powers of government, territories and revenues to the British Crown.
It provided that India henceforth was to be governed by, and in the name of, Her Majesty. It changed the designation of the Governor-General of India to that of Viceroy of India.
The viceroy was the direct representative of the British Crown in India.
Henceforth the Governor General and the Governors of the presidencies were to be appointed by the crown.
Lord Canning became the first Viceroy of India.
It ended the system of double government by abolishing the Board of Control and Court of Directors. The system of ‘Dual Government’ introduced by the Pitt’s India act of 1784 was finally abolished.
It created a new office, Secretary of State for India, vested with complete authority and control over Indian administration.
The secretary of state was a member of the British cabinet and was responsible ultimately to the British Parliament.
The salary of the secretary of state and the cost of his offices were to be paid out of the revenue of India.
It established a 15-member Council of India to assist the secretary of state for India. The council was an advisory body. The secretary of state was made the chairman of the council.
It constituted the secretary of state-in-council as a body corporate, capable of suing and being sued in India and in England.

Queen Victoria’s Proclamation of 1858

A Royal Durbar was held at Allahabad in November 1, 1858 where a proclamation was issued by Queen Victoria.
Queen Victoria’s Proclamation was read at the Durbar by Lord Canning, who was the last Governor General and the first Viceroy of India.
The Doctrine of Lapse was cancelled and the British stopped the policy of annexation.
It assured the people of India that no discrimination will be made on the basis of caste, colour, race and creed.

Act of 1861

It made a beginning of representative institutions by associating Indians with the law-making process.
It provided that the viceroy should nominate some Indians as non-official members of his expanded council.
In 1862, Lord Canning, the then viceroy, nominated three Indians to his legislative council-the Raja of Benaras, the Maharaja of Patiala and Sir Dinkar Rao.
It initiated the process of decentralization by restoring the legislative powers to the Bombay and Madras Presidencies. This policy of legislative devolution resulted in the grant of almost complete internal autonomy to the provinces in 1937.
It provided for the establishment of new legislative councils for Bengal, North-Western Frontier Province (NWFP) and Punjab, which were established in 1862, 1866 and 1897 respectively.
It gave a recognition to the ‘portfolio’ system, introduced by Lord Canning in 1859. Under this, a member of the Viceroy’s council was made in-charge of one or more departments of the government and was authorised to issue final orders on behalf of the council on matters of his department(s).
It empowered the Viceroy to issue ordinances, without the concurrence of the legislative council, during an emergency.

Act of 1892

It increased the number of additional (non-official) members in the Central and provincial legislative councils, but maintained the official majority in them.
It increased the functions of legislative councils and gave them the power of discussing the budget and addressing questions to the executive.
It provided for the nomination of some non-official members of the (a) Central Legislative Council by the viceroy on the recommendation of the provincial legislative councils and the Bengal Chamber of Commerce, and (b) that of the Provincial legislative councils by the Governors on the recommendation of the district boards, municipalities, universities, trade associations, zamindars and chambers.
The members were authorised to discuss the Budget but without a right to vote on it. The members were allowed to ask questions on public interest
The act made a limited and indirect provision for the use of election in filling up some of the nonofficial seats both in the Central and provincial legislative councils.

Government of India Act, 1909

This Act is also known as Morley-Minto Reforms (Lord Morley was the then Secretary of State for India and Lord Minto was the then Viceroy of India).
It considerably increased the size of the legislative councils, both Central and provincial. The number of members in the Central Legislative Council was raised from 16 to 60. The number of members in the provincial legislative councils was not uniform.
It retained official majority in the Central Legislative Council but allowed the provincial legislative councils to have non-official majority.
It enlarged the deliberative functions of the legislative councils at both the levels. For example, members were allowed to ask supplementary questions, move resolutions on the budget, and so on.
It provided (for the first time) for the association of Indians with the executive Councils of the Viceroy and Governors.
Satyendra Prasad Sinha became the first Indian to join the Viceroy’s Executive Council. He was appointed as the law member.
It introduced a system of communal representation for Muslims by accepting the concept of ‘separate electorate’. Under this, the Muslim members were to be elected only by Muslim voters.
The Act ‘legalized communalism’ and Lord Minto came to be known as the ‘Father of Communal Electorate.’
It also provided for the separate representation of presidency corporations, chambers of commerce, universities and zamindars
Lord Morley referred the act of 1909 as “The opening of a very important chapter in the history of Great Britain and India and the opening of a chapter in constitutional reform itself.

Government of India Act, 1919

On August 20, 1917, the British Government declared, for the first time, that its objective was the gradual introduction of responsible government in India. The Government of India Act of 1919 was thus enacted, which came into force in 1921.
This Act is also known as Montagu-Chelmsford Reforms (Montagu was the Secretary of State for India and Lord Chelmsford was the Viceroy of India).
It relaxed the central control over the provinces by demarcating and separating the central and provincial subjects. The central and provincial legislatures were authorised to make laws on their respective list of subjects. However, the structure of government continued to be centralized and unitary.
It divided the provincial subjects into two parts-transferred and reserved.
The transferred subjects were to be administered by the governor with the aid of ministers responsible to the legislative Council.
The reserved subjects, on the other hand, were to be administered by the governor and his executive council without being responsible to the legislative Council.
This dual scheme of governance was known as ‘dyarchy’-a term derived from the Greek word di-arche which means double rule.
It introduced, for the first time, bicameralism and direct elections in the country. Thus, the Indian Legislative Council was replaced by a bicameral legislature consisting of an Upper House (Council of State) and a Lower House (Legislative Assembly). The majority of members of both the Houses were chosen by direct election.
The system of setting up two co-ordinate Authorities in the provinces were introduced in 1921 in nine Governor’s provinces Viz. Madras, Bengal, Bombay.
It required that the three of the six members of the Viceroy’s executive Council (other than the commander-in-chief) were to be Indian.
It extended the principle of communal representation by providing separate electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans.
It granted franchise to a limited number of people on the basis of property, tax or education.
It created a new office of the High Commissioner for India in London and transferred to him some of the functions hitherto performed by the Secretary of State for India.
It provided for the establishment of a public service commission. Hence, a Central Public Service Commission was set up in 1926 for recruiting civil servants.

Simon Commission (1927)

The British Government announced the appointment a seven-member statutory commission under the chairmanship of Sir John Simon in 1927 to report on the condition of India under its new Constitution.
All the members of the commission were British and hence, all the parties boycotted the commission.
The commission submitted its report in 1930 and recommended the abolition of dyarchy, extension of responsible government in the provinces, establishment of a federation of British India and princely states, continuation of communal electorate and so on.
To consider the proposals of the 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 the consideration of the Joint Select Committee of the British Parliament.
The recommendations of this committee were incorporated (with certain changes) in the next Government of India Act of 1935.

Nehru Report (1928)

The Nehru Report of 1928 was a memorandum outlining a proposed new dominion status constitution for India.
It was prepared by a committee of the All Parties Conference chaired by Motilal Nehru with his son Jawaharlal acting as secretary.
This committee was created when Lord Birkenhead, Secretary of State of India asked the Indian leaders to draft a constitution for the country.
The final report was signed by Motilal Nehru, Ali Imam, Tej Bahadur Sapru, M.-S. Aney, Mangal Singh, Shuaib Qureshi, Subhas Chandra Bose, and G. R. Pradhan. Shuaaib Qureshi disagreed with some of the recommendations.
The report demanded a Dominion Status for India.
The report rejected separate electorates which haders were given to the Viceroy.
The federation never came into being as the princely states did not join it.
It abolished dyarchy in the provinces and introduced ‘provincial autonomy’ in its place. The provinces were allowed to act as autonomous units of administration in their defined spheres.
It 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 the adoption of dyarchy at the Centre. Consequently, the federal subjects were divided into reserved subjects and transferred subjects. However, this provision of the Act did not come into operation at all.
It introduced provincial autonomy.
It introduced bicameralism in six out of eleven provinces. Thus, the legislatures of Bengal, Bombay, Madras, Bihar, Assam and the United Provinces were made bicameral consisting of a legislative council (upper house) and a legislative assembly (lower house). However, many restrictions were placed on them.
It further extended the principle of communal representation by providing separate electorates for depressed classes (scheduled castes), women and labour (workers).
It abolished the Council of India, established by the Government of India Act of 1858. The secretary of state for India was provided with a team of advisors.
It extended franchise. About 10 per cent of the total population got the voting right.
It provided for the establishment of a Reserve Bank of India to control the currency and credit of the country.
It provided for the establishment of not only a Federal Public Service Commission but also a Provincial Public Service Commission and Joint Public Service Commission for two or more provinces.
It provided for the establishment of a Federal Court, which was set up in 1937.
The Federal court consisted of one Chief Justice and not more than six other Judges.
The first Chief justice of the Federal court was Sir Maurice Gwyer.
It led to the separation of Burma from India. Berar was merged with C.P., Aden surrendered to British colonial office.

August Offer (1940)

On 8 August 1940, early in the Battle of Britain,the Viceroy of India, Lord Linlithgow, made the so-called August Offer.
It comprised a fresh proposal promising the expansion of the Executive Council to include more Indians, the establishment of an advisory war council, giving full weight to minority opinion, and the recognition of Indians’ right to frame their own constitution (after the end of the Second World war).
In return, it was hoped that all parties and communities in India would cooperate in Britain’s war effort.
The declaration marked an important advance over the existing state of things, as it recognised at least the natural and inherent right of the people of the country to determine the form of their future constitution, and explicitly promised dominion status.
However, The Congress Working Committee meeting at Wardha on 21August 1940 rejected this offer, and asserted its demand for complete freedom from the imperial power.
Jawaharlal Lal Nehru said that the whole idea was “dead and doornail”.

Cripps Mission (1942)

The Cripps mission was an attempt in late March 1942 by the British government to secure full Indian cooperation and support for their efforts in World War II.
The mission was headed by Sir Stafford Cripps, a senior left-wing politician and government minister in the War Cabinet of Prime Minister Winston Churchill.
Cripps promised to give dominion status after the war as well as elections to be held after the war.
The Congress and the League rejected his proposals and the mission proved a failure.
Gandhi said that Cripps’ offer of Dominion Status after the war was a “post-dated cheque drawn on a crashing bank”.