Constitutional Development

Introduction 

• The constitutional evolution in India traces its roots back to the inception of the East India Company. From 1765, when the company secured Diwani rights over Revenue and Civil Justice in Bengal, Bihar, and Orissa, to the year 1947, the British rule, spanning different epochs, established the legal foundation for the organization and operation of the government and administration in India. 
• The Constitution serves as the fundamental law of a nation, encapsulating core principles that underpin the values and institutions governing its administration. Its primary role is to uphold the Rule of Law and wield ultimate supreme authority in India. 
• The phases of constitutional development are further categorized into two eras: Constitutional Development Under the East India Company (1773-1858) and Constitutional Development Under British Rule (1858-1947). 

Constitutional Development of India 

Under East India Company 

• Regulating Act, 1773 
• Act of Settlement, 1781 
• Pitt's India Act, 1784 
• Charter Act, 1793 
• Charter Act, 1813 
• Charter Act, 1833 
• Charter Act, 1853 

Under British Rule 

• Indian Council Act, 1861 
• Indian Council Act, 1892 
• Indian Council Act, 1909 
• Government of India Act, 1919 
• Government of India Act, 1935 
• Indian Independence Act, 1947 

Constitutional Development Under the East India Company (1773-1858) 

• During this period, the East India Company's rule in India, spanning from 1773 to the enactment of the Government of India Act of 1858, witnessed significant legislative developments. Notable among these were the Regulating Act of 1773, the Act of Settlement in 1781, and the Pitt's India Act of 1784. 

Regulating Act, 1773 

• The Regulating Act of 1773 marked the initial endeavor by the British Government to oversee and manage the affairs of the East India Company in India. 
• Enacted on the recommendation of the Secret Committee by the then British Prime Minister Lord North, it laid the groundwork for central administration in India. 
• This act designated the Governor of Bengal as the Governor-General, with Lord Warren Hastings becoming the first Governor-General of Bengal. 
• Governors in councils at Madras and Bombay were brought under Bengal's control, particularly in matters of foreign policy. 
• An Executive Council, composed of four members, was established to assist the Governor-General. 
• The Court of Directors, the executive body of the East India Company, reported to the British Government on revenue, military, and civil affairs in India. 
• The Governor-General had no veto powers. 
• To address grievances against the Supreme Court, the Act exempted the Governor-General, members of his council, revenue collectors, and judicial officers from the Supreme Court's jurisdiction for actions performed in their official capacity. 
• The Supreme Court, established in Calcutta in 1774, was required to consider and respect the religious and social customs of Indians while enforcing decrees and processes. 

Act of Settlement, 1781 

• The Act of Settlement, 1781, served as an Amending Act that rectified deficiencies in the Regulating Act of 1773. Also known as the Judicature Act, it aimed to establish a new system of courts in India. 

Pitt's India Act, 1784 

• Introduced to address shortcomings in the Regulating Act of 1773 and the Act of Settlement, 1781, Pitt's India Act of 1784 redefined the governance of Indian affairs. The Court of Directors managed commercial affairs, while a Board of Control, named after British Prime Minister William Pitt, oversaw political matters. This act distinguished and separated the commercial and political functions of the East India Company, establishing a system of dual government under the direct control of the British Government. 
• The structure included a Secretary of State, Chancellor of the Exchequer, and Four Privy Councilors. 
• This board was to directly report to the British Parliament. The Governor-General's additional powers were limited, returning authority to provincial Governors, and granting veto rights. 
• Under this Act, the Company's territories in India were officially termed the British Possessions in India for the first time. The British Government gained supreme control over the Company's affairs and administration in India.  
• The Act reduced the number of members of the Executive and Provincial Council from 4 to 3, with one serving as the Commander-in-Chief of the British Crown. 

The Act of 1789 

• Lord Cornwallis advocated for expanding the Governor-General's power, allowing him to override the majority of his council and act with special responsibility. The Act of 1786 granted him the authority to function as both Governor-General and Commander-in-Chief, making Cornwallis the first effective ruler of British India under the authority of the Board of Control and the Court of Directors. 

Charter Act of 1793 

• The 100 Charter Act of 1793 renewed the Company's Charter for 20 years, maintaining possession of all territories during that period. It stipulated that the Board of Control members and their staff would be paid from Indian revenues. 

Charter Act 1813 

• The Charter Act of 1813 established a regular code for the internal government of the British territory in Bengal, renewing the Company's Charter for an additional 20 years. However, it removed the company's trade monopoly, except for tea and trade with China.  
• This act asserted constitutional position, established the crown's sovereignty over British territories in India, and empowered local authorities to impose taxes. It also allowed Christian Missionaries to spread their religion in India. The act governed the company's commercial profits and territorial revenues, emphasizing the separation of commercial and territorial accounts. 
• It authorized the local government in India to impose taxes on individuals, laying the foundation for government by written laws and regulations in British India. 

Charter Act 1833 

• The Charter Act of 1833, the last step towards centralization in India under British Raj, renewed the Company's Charter. It designated the Governor-General of Bengal as the Governor-General of India, creating a Government of India with authority over the entire territorial area possessed by the British in India. 
• The Governors of Bombay and Madras lost their legislative powers, and the East India Company became primarily an administrative and political entity. The Governor-General's Council was separated into executive and legislative functions. 
• The Indian Council was to comprise four members, with one specifically handling legislative matters. A law member was introduced as well. The East India Company's transformation from a commercial body to a purely administrative entity marked the end of its commercial activities. 
• The Act of 1833 took the initial step in codifying the laws of the country, establishing the first Law Commission chaired by Lord Macaulay in 1834. The laws enacted under this Act, previously known as Regulations, were now referred to as Acts. 
• The Act aimed to abolish the slave trade in India, aligning with the British Parliament's decision to abolish slavery in the United Kingdom and its possessions in 1833. 

Charter Act, 1853 

• In the Charter Act of 1853, the legislative and executive functions of the Governor-General's Council were separated for the first time.  
• It introduced a new Legislative Council of the Governor-General, comprising six new members called Legislative Councilors, forming the Indian (Central) Legislative Council. 
• The British Parliament gained the authority to terminate the Company's governance in India at any suitable time. 
• The first Governor-General to assume independent charge was Lord Dalhousie. The law member gained full membership with voting rights, and the number of Board of Directors was reduced from 24 to 18, with 6 nominated by the British Crown.  
• This Act laid the foundation for the modern Parliamentary form of government, with the legislative wing of the Governor-General's Council functioning as a Parliament modeled after the British Parliament.  
• It introduced an open competition system for the selection and recruitment of civil servants, and local representation was introduced in the Legislative Council. 

Constitutional Development Under British Rule 

• The Constitutional Development continued with the Government of India Act, 1858, enacted in response to the Revolt of 1857 or the First War of Independence.  
• This Act transferred the government territories and revenues of India from the East India Company to the British Crown, replacing the Company's rule with the Crown's rule in India.  
• India was classified into British India and Princely States, with the Princely States showing allegiance to the Crown. The Secretary of State for India, a member of the British Cabinet, gained complete authority and control over the Indian administration through the Governor-General as his agent.  
• The Governor-General was designated as the Viceroy of India, with Lord Canning becoming the first Viceroy in 1858.  
• The Act marked the end of the East India Company's rule in India and is known as the Magna Carta of Indian Independence, focusing on improving the administrative machinery of British control over India. 

Indian Councils Act, 1861 

• Indian Councils Act, 1861, received approval from the British Parliament on August 11, 1861, introducing changes to the composition of the Governor-General's council for both executive and legislative functions. 
• This Act marked the initiation of representative institutions by involving Indians in the law-making process. 
• It specified that the Governor-General's Executive Council should include non-official Indian members when dealing with legislative matters.  
• For the first time, Governor-General Lord Canning nominated three Indians to his Legislative Council—Raja of Banaras, Maharaja of Patiala, and Sir Dinkar Rao. 
• No bill related to government finances, debt, armed forces, religion, or international relations could pass without the Governor-General's approval.  
• The Viceroy could override council decisions and held absolute veto power, issuing enforceable ordinances for six months. 
• Lord Canning introduced the Portfolio System in 1859, a precursor to the Cabinet System in India.  
• Legislative Councils were established for the North-Western Frontier Province, Punjab, and Bengal.  
• The Act restored legislative power to the Bombay and Madras Presidencies, reversing centralizing trends that began with the Regulating Act of 1773 and peaked under the Charter Act of 1833. 

The Indian Councils Act of 1892  

• The Indian Councils Act of 1892 introduced the establishment of elected Legislative Councils in the provinces, implementing the principle of indirect election for the first time. 
• Members were elected by municipalities, merchant bodies, universities, etc. A Legislative Council at the Centre comprised members elected by Provincial Councils, with no voting rights but the ability to ask supplementary questions on budget matters. Official members remained the majority at both levels. 

The Indian Councils Act of 1909 

• The Indian Councils Act of 1909, known as the Morley-Minto Reforms, featured several key changes. 
• The Central Legislative Council was renamed the Imperial Legislative Council, with its membership increased from 16 to 60. 
• Separate electorates were granted to Muslims, introducing communal representation. Lord Minto earned the title "Father of Communal Electorate." Although official members formed the majority, non-official members held the majority in provinces. 
• The Act allowed members to discuss budgets, suggest amendments, and vote on non-vote items.  
• Elections were introduced in India for the first time, and Indians were permitted in the Viceroy's Executive Council. 
• Two Indians were nominated to the Council of the Secretary of State for Indian affairs, and the Viceroy could nominate one Indian member to his Executive Council.  
• Satyendra Prasanna Sinha became the first Indian to join the Viceroy's Executive Council. Separate representation was established for presidency corporations, universities, zamindars, and chambers of commerce. 

The Government of India Act 1919 

• The Government of India Act 1919, also known as the Montague-Chelmsford Reforms, derived its name from the Secretary of State for India, Montague, and the Viceroy of India, Lord Chelmsford, in 1919. 
• Aligned with the British Government's declaration on August 20, 1917, its primary aim was the gradual introduction of responsible government in India. 
• The Act introduced the System of Dyarchy, a term rooted in the Greek word "di-arche," meaning double rule, in the provinces. It marked a significant stride toward transferring power to Indians. 
• Provincial subjects were categorized as transferred and reserved. Transferred subjects were administered by the Governor with the assistance of ministers responsible to the Legislative Council.  
• On the other hand, the Governor and the Executive Council handled reserved subjects without accountability to the Legislature, though this experiment was largely unsuccessful. 
• Devolution Rules were established to categorize subjects into Central and Provincial, with the former covering matters of all-India importance, such as Railways and Finance, and the latter focusing on provincial administration.  
• The Act introduced bicameralism, ushering in the concept of two Houses and direct elections for the first time.  
• The Indian Legislative Council was replaced by a bicameral legislature consisting of the Council of State (Upper House) and the Legislative Assembly (Lower House), with a majority of members elected directly. 
• The number of Indians in the Governor-General's Executive Council was increased to three, excluding the Commander-in-Chief.  
• Direct elections were introduced, assigning Indian members departments such as law, education, labor, health, and industries. Communal representation was extended to Sikhs, Christians, Anglo-Indians, etc.  
• The Act established the office of the High Commissioner for India in London, transferring some functions of the Secretary of State for India to this office.  
• It also granted franchise to the educated, tax-paying, and property-owning individuals, with reservations for women on 41 seats in Provincial Legislature and limited reservation in the Central Legislature. 
• The Act facilitated the creation of a Public Service Commission in 1926 for civil servant recruitment, separated Provincial budgets from the Central budget, and empowered Provincial Legislatures to enact their budgets. 
• In response to the Act of 1919, the Simon Commission was appointed in 1927 to review its provisions. The Seven-Members Statutory Commission, led by Sir John Simon, comprised all British members, leading to a boycott by all Indian parties.  
• The commission's 1930 report recommended abolishing Dyarchy, extending responsible government in the provinces, establishing a federation of British India and Princely States, and continuing communal electorates. 

Nehru Report, 1928 

• The Nehru Report served as a memorandum proposing a new Dominion Status Constitution for India. Formulated by a committee from the All-Parties Conference, chaired by Motilal Nehru in Delhi in February 1928, it outlined significant features: 
• Encompassed a bill of rights. 

It asserts that all governmental power, legislative, executive, and judicial, derived from and should be exercised through organizations established in accordance with the Constitution. 

• Advocated the absence of a state religion and the equal rights of men and women as citizens. 
• Proposed a federal form of government with residuary powers vested in the Centre. 

Suggested linguistic determination for provinces. 

• It did not support separate electorates for any community or provide weightage for minorities. 

Government of India Act, 1935 

• The Act aimed at establishing the All-Indian Federation, distributing power between the Centre and State units through Union, State, and Concurrent lists. Key provisions included: 
  • Granting Viceroy, the right to legislate on residuary subjects. 
  • Formation of an All India Union comprising provinces, Chief Commissioners Provinces, and Princely States. 
  • Separation of Burma from India. 
  • Abolition of Dyarchy in the Provinces, ushering in Provincial autonomy. 
  • Dissolution of the Indian Council in England. 
  • Provision for Indian Secretary with a team of advisors. 
• Expansion of Communal Representation: The Government of India Act, 1935, marked the first instance of elections for Dalit castes, women, and the working class. 
• Dual Government System: Introduced a division of federal subjects as transferred and reserved. 
• Bicameral System: Implemented in six out of eleven States, namely Bengal, Bombay, Madras, Bihar, Assam, and the United Provinces. 
• Establishment of Public Service Commission: 
  • Union Public Service Commission at the Centre. 
  • State Public Service Commission in the States. 
  • Joint Service Commission for two or more States. 
• Provision of Federal Court in India: Established in 1937 as a judicial body, with Maurice Gwyer serving as the first Chief Justice. 
• Establishment of Reserve Bank: Established for the purpose of currency control. 

August Offer, 1940 

On August 8, 1940, Viceroy Lord Linlithgow presented the August Offer, featuring the following proposals: 

• The objective for India was Dominion status. 
• The Viceroy's executive council would expand, with a majority of Indians drawn from major political parties. 
• After the Second World War, a Constituent Assembly would be established where primarily Indians would decide the Constitution. 
• No future Constitution could be adopted without the support or consent of minorities. 

Cripps Mission, 1942: 

• In 1942, the Cripps Mission, led by Sir Stafford Cripps, was dispatched to India. Some of the proposals included: 
  • Granting Dominion status to India after the Second World War. 
  • Establishing an elected body in India after the war to frame the Indian Constitution. 
  • The participation of Indian States in the Constitution-making body. However, the majority of parties and sections in India rejected the Cripps Mission's proposals. 

Cabinet Mission, 1946: 

• British Prime Minister Clement Attlee formulated the Cabinet Mission to discuss and finalize plans for transferring power from British rule to Indian leadership. 
• It aimed to grant independence under Dominion Status in the Commonwealth of Nations. The Cabinet Mission, consisting of Lord Pethick Lawrence, Sir Stafford Cripps, and Mr. AV Alexander, proposed: 
  • Rejecting the claim for a separate Constituent Assembly and a separate electorate for Muslims. 
  • Forming a Union of India, encompassing British India and the states. 
  • Granting jurisdiction over foreign affairs, defense, and communication to the Union, with residuary powers vested in provinces and states. 
  • Creating an executive and a legislature for the Union consisting of representatives from provinces and states. 
  • Requiring majority support from representatives of each of the two major communities for decisions on major communal issues in the legislature. 
  • Allowing provinces to form groups with executives and legislatures, empowering each group to determine provincial subjects. 
• The proposals were accepted, leading to Constituent Assembly Elections in July 1946. 

Interim Government (1946): 

• Pt. Jawaharlal Nehru: External Affairs and Commonwealth Relations 
• Sardar Vallabhbhai Patel: Home Affairs/Information and Broadcast in 
• Dr. Rajendra Prasad: Food and Agriculture 
• Dr. John Mathai: Industries and Supplies 
• Jagjivan Ram: Labour 
• Sardar Baldev Singh: Defence 
• CH Bhabha: Works, Mines, and Power 

The Interim Government comprised individuals who were part of the Viceroy's Executive Council. While the Viceroy retained his position as the head of the Council, Jawaharlal Nehru was appointed as the Vice-President of the Council. 

Mountbatten Plan, 1947 

• In 1947, the British Government presented a plan on June 3rd, known as the Mountbatten Plan. The key principles of this plan included: 
  • Acceptance of the Principle of Partition for India by the British Government. 
  • Granting Dominion Status to successor governments. 
  • Implicit acknowledgment of the right to secede from the British Commonwealth. 
  • The Indian Independence Act, 1947, served as the implementation of the 3rd of June Plan. 

Indian Independence Act of 1947 

• The Indian Independence Act of 1947, enforced on July 18th, divided British Indian territory into two dominions, namely India and Pakistan, both under the Commonwealth of Nations until their respective Constitutions took effect. 
• To delineate the boundary between India and Pakistan, a commission led by Sir Cyril Radcliffe was appointed. 
• Lord Mountbatten assumed the role of the first Governor-General of Dominion India. Subsequently, C Rajagopalachari was elected as the Governor-General of Independent India by the Constituent Assembly. 
• As per the Act, the sovereignty and responsibility of the British Crown over India were set to expire on the Appointed Day, decided as August 15th, 1947. 
• The Act encompassed several provisions, including the abolition of the post of Secretary of State, making the Crown no longer the source of authority. 
• Constitutional heads were designated to the Governor-General and provincial Governors. India was granted Dominion status, and the Constituent Assembly was tasked with serving as the Provisional Parliament of the dominion. 
• The Constituent Assembly held unlimited powers to frame any Constitution and repeal any Act of the British Parliament, including the Indian Independence Act.  
• British supremacy over the Indian Princely States and treaty relations with tribal areas were terminated on August 15th, 1947. 
• The Act permitted Indian Princely States to choose between joining the dominion of India, dominion of Pakistan, or remaining independent.  
• The appointment to civil services and reservation of posts by the Secretary of State for India was discontinued. Additionally, the British Monarch removed the title of Emperor of India from the Royal Style and titles. 

First Cabinet of Free India (1947)