Historical Polity - Background to Indian Constitution

Historical Background to Constitution  

• India is a parliamentary democracy in which the executive is accountable to the legislature. Many aspects of Indian politics and the Constitution are inherited from the British administration system. The colonial rulers devised and implemented methods for managing affairs in India. In 1765, the East India Company, which arrived in India in 1600, gained significant administrative power (in the aftermath of the Battle of Buxar when the British got revenue and civil justice rights for Bengal, Bihar and Odisha).  
• Since then, the trading company has consolidated its power in such a way that it has reached every nook and cranny of our country. Previously, ancient and mediaeval empires such as the Maurya, Gupta, and Mughal empires had this reach and consolidation of administrative power. The British's success in India was primarily due to the administrative system they established. This section will look at various acts that allowed the British to maintain their empire. Furthermore, emphasis will be placed on how these acts laid the groundwork for various provisions in our constitution.  

The company rule (1773-1858)  

• Various acts were passed by the British parliament during this period to control and supervise the activities of the East India Company (EIC). Following the Sepoy Mutiny in 1858, the company's rule came to an end. Since then, the British Parliament has been in charge of administering India.  

1773 Regulating Act  

• The Governor of Bengal was designated as the 'Governor-General of Bengal.'  
• It established a four-member executive council (not to be confused with the legislative council) to assist the governor-general of Bengal. Warren Hastings was the first of these generals.  
• It subordinated the governors of the Madras and Mumbai presidencies to the governor-general of Bengal (centralizing tendency started from this act)  
• Calcutta was the site of the establishment of the Supreme Court (1774). It consisted of one chief justice and three other judges.  
• Employees of the company were prohibited from engaging in private trade or accepting bribes, and the EIC Court of Directors was required to report on revenue, civil, and military affairs in India.  
• The British government took the first step toward controlling and regulating the affairs of EIC.  
• For the first time, the company's political and administrative functions have been recognised.  
• In India, it laid the groundwork for central administration.  

1781 Amending Act  

• It was also known as the 1781 Declaratory Act.  
• The act was primarily passed to correct the flaws in the regulating act.  
• The Supreme Court's jurisdiction was limited to Calcutta.  
• Civil servants in their official capacity, revenue collectors, and judicial officers were exempted from the court's jurisdiction.  
• The Governor-General-in-Council was to hear appeals from provincial courts.  
• The Regulating Act empowered the Governor General in Council to issue rules, ordinances, and regulations, but they had to be registered in the Supreme Court.  
• It was India's first attempt to separate the executive from the judiciary by defining the respective areas of jurisdiction.  

The Pitt India Act of 1784  

• It distinguished between the company's political and commercial functions.  
• Dual administration: The political affairs were managed by a new Board of Directors, while the commercial affairs were managed by the EIC's court of directors.  
• The Board of Directors was given the authority to supervise and direct all civil and military government operations as well as revenues from British possessions in India.  
• For the first time, a company's possession was referred to as British possessions.  
• The British government was given complete authority over the Company's affairs and administration in India.  

The 1793 Charter Act  

• John Shore was the author of the Charter Act of 1793.  
• The EIC Charter was extended for another 20 years.  
• Future Governor Generals (GG) and Governors now have the authority to override the Council.  
• GG's grip on Bombay and Madras was tightened. He now had full executive authority over the Central Government.  
• It established the concept of civil law enacted by a secular agency and applied universally in India.  
• It established a regular code of all internal government regulations that applied to all Indians in all matters, and it bound the courts to administer justice under the regular code. 
• All laws were to be printed and translated into local languages so that people could be aware of the laws that govern them. 
• The EIC was given the authority to grant licences to individuals and EIC employees to trade in India, which resulted in the Opium trade to China.
• It thus established written laws and regulations as the foundation of government in British India, replacing the personal rule of previous rulers. The Courts were supposed to interpret regulations and written laws. 
• Indians were not given positions in which they could share power or authority. 
• Indians were barred "to meet the demand for lucrative jobs among English men."  

The 1813 Charter Act  

• The Napoleonic Wars and the misery they caused prompted traders to put pressure on the government to end EIC's trade monopoly.  
• The rule of the company was extended for another 20 years.  
• The Charter Act of 1813 allowed British merchants to trade in India under a strict licencing system. However, the company maintained its monopoly in trade with China, as well as the tea and opium trades.  
• It called for a financial contribution to the revival of Indian literature and the advancement of science.  
• The company was asked to play a larger role in the education of the Indians who worked for them. It was to set aside one lakh rupees for this purpose.  
• The act allowed Christian missionaries to spread English and preach their faith.  

The 1833 Charter Act  

• It appointed the governor-general of Bengal as India's governor-general. He was given complete civil and military authority.  
• Lord William Bentinck was India's first governor-general.  
• It took away the governor's power to make laws in Bombay and Madras. The Governor-General of India now has complete legislative authority.  
• EIC's commercial activities have been completely discontinued.  
• A system of open competition for civil servant selection was attempted. The Court of Directors was opposed to this.  
• The laws enacted under previous acts were known as regulations. However, since the passage of this act, it has been referred to as Acts.  
• The act's provisions called for the establishment of an Indian Law Commission. Lord Macaulay was the commission's first chairman.  
• The act provided for the division of the Bengal Presidency into the Presidencies of Agra and Fort William. However, this was never implemented.  
• In 1833, the British Parliament abolished slavery in the United Kingdom and all of its possessions.  
• The administration's centralization reached new heights.  
• For the first time, law codification was undertaken.  
• It recognised the importance of involving Indians in administration.  

The 1853 Charter Act  

• It provided for the separation of the council's executive and legislative functions.  
• It called for the appointment of six new legislative council members (Indian Central legislative council)  
• Indians were given access to civil service.  
• In the Indian Central Legislative Council, there was a local representation (Bombay, Agra, Madras, Bengal)  
• The Court of Directors has the authority to establish a new presidency or province.  
• The Bengal Presidency Act provided for the appointment of a separate governor.  
• Though it extended EIC's authority, no time limit was set for its rule. This meant that the EIC rule could be terminated whenever the British Parliament desired.  
• In 1854, the Macaulay Committee on Civil Service was appointed, and a dedicated rule-making body was established.  

Crown Rule (1858-1947)  

• The 1857 revolt prompted the British Parliament to suspend the EIC's operations. The powers of the Indian government, territories, and revenues were now transferred to the British crown.   

The GOI Act of 1858  

• This act is also referred to as the 'Act for the Good Government of India.'  
• It put an end to Pitt's India Act's Dual Government Scheme.  
• The Company's Court of Directors' powers was transferred to the Secretary of State for India. He intended to be a member of the British Parliament. He was provided with a 15-member advisory council.  
• The Secretary of State-in-Council was established as a legal entity capable of suing and being sued in India and England.  
• A viceroy would be appointed to act as the British crown's representative.   
• Lord Canning was the first viceroy of this type.  
• Through the passage of this act, India became a direct British colony.  
• The act put an end to the contentious 'Doctrine of Lapse.'  
• The Indian Civil Services were to be established to administer the country. There was also a provision for admitting Indians to the service.  
• Indian princes were allowed to keep their principalities as long as they accepted British suzerainty.  
• It did not affect India's government system. The majority of the provisions were enacted to protect the crown jewel of the British empire from future threats or rebellions.  

The Indian Councils Act of 1861  

• The Indian Councils Act of 1861 was an Act of the United Kingdom Parliament that transformed India's executive council into a cabinet run on the portfolio system. It was enacted because the British government wanted to involve the Indian people in the legislative process. This Act was enacted on August 1, 1861.  
• It established the first representative institutions by involving Indians in the legislative process.  
• Some Indians were appointed as non-official members of the Viceroy's expanded council.  
• Lord Canning proposed three candidates: the Raja of Banaras, the Maharaja of Patiala, and Sir Dinkar Rao.  
• Bombay and Madras' legislative powers have been restored.  
• The formation of new Legislative Councils in Bengal, the North-Western Frontier Province, and Punjab.  
• The Viceroy could make provisions for more convenient business transactions in the council.  
• It recognised Lord Canning's 'portfolio system,' allowing the Viceroy to issue ordinances without the council's approval during an emergency. However, such an ordinance had a six-month lifespan.  
• The Act's most serious flaw concerned the selection and role of Additional Members.  
• These members did not participate in the discussions and were only advisory.  
• Non-official members of the Executive Council were not interested in attending Council meetings, and they were not required to do so under this Act.  
• The Indian members were not allowed to oppose any bill, and most bills were passed in a single sitting without debate.  

Indian Councils Act of 1892  

• It increased the number of non-official (additional) members in the Central and Provincial Legislative Councils, with an official majority.  
• It expanded the powers of legislative councils and gave them the authority to debate the budget and ask questions of the executive.  
• Members could now debate the budget but not vote on it, and they were also barred from asking follow-up questions.  
• The Governor-General in Council was given the authority to establish rules for member nomination, subject to the Secretary of State for India's approval.  
• A limited and indirect provision was made for the use of elections to fill non-official seats in both central and provincial councils.  
• Nomination of non-official members to the central legislative council (Bengal chamber of commerce, governors for the provincial legislative council based on the recommendations of district boards, municipalities, universities, trade associations, zamindars, and chambers).  
• The Indian Councils Act of 1892 was a watershed moment in India's constitutional and political history.  
• The act increased the size of various legislative councils in India, increasing Indians' involvement in the British Indian administration.  
• The Indian Councils Act of 1892 was the first step in modern India toward representative government.  
• Because the British only made a minor concession, the act set the stage for the development of revolutionary forces in India.  

The Morley-Minto reforms of 1909  

• It is one of the British parliament's historic acts.  
• The size of the legislative councils at the Centre and in the provinces has grown.  
• It established a non-official majority in provincial legislatures.  
• It increased the deliberative powers of legislative councils at both levels.  
• It allowed Indians to serve on the executive council for the first time. SP Sinha was appointed as a law member of the Viceroy's executive council.  
• Muslims were given a system of communal representation.  
• There were separate representations for presidential corporations, chambers of commerce, universities, and Zamindars.  
• It planted the seeds of partition in India.  
• It belied the self-governance expectations that Congress had set.  
• There are no meaningful representations in the central legislature.  
• Government of India Act of 1919 
• It established many of the characteristics that we now associate with the Indian constitution.  
• India is gradually introducing a responsible government.  
• It loosened the central government's grip on the provinces by demarcating and separating central and provincial subjects.  
• Provincial subjects were divided into two lists: transferred and reserved. Reserved lists were managed by the governor and his executive council, who were not accountable to the legislature, whereas transferred lists were managed by the governor on the advice of ministers who were accountable to the council.  
• For the first time, bicameralism and direct elections were implemented.  
• The act required that three of the Viceroy's executive council's six members be Indian.  
• Separate electoral districts were extended to Sikhs, Indian Christians, Anglo-Indians, and Europeans.  
• It granted franchise to a limited number of people based on their property, taxation, or education.  
• The position of High Commissioner of India has been created. Some of the Secretary of State's powers were transferred to the commissioner.  
• Provincial budgets were separated from the central budget for the first time.  
• A central public service commission was formed.  
• After ten years, a statutory commission will assess the impact of this act.  

Simon Commission 1927  

• The Simon Commission, also known as the Indian Statutory Commission, is a body charged with researching constitutional reform in India.   
• The Simon Commission's mandate was to report on the operation of the Indian constitution established by the Government of India Act of 1919.   
• Sir John Simon presided over the establishment of the Simon Commission. The Simon Commission was heavily criticised for not including any Indians.   
• The Indian National Congress and most other Indian political parties boycotted the commission.   
• The 1919 Act provided for the appointment of a Commission to review the provisions of the Act in light of their operation and to extend, modify, or restrict the government of India's degree of responsibility.  
• According to the Act's provisions, the Commission was to be appointed in 1929.  
• However, for a variety of political reasons, it was established in November 1927, with Sir John Simon as Chairman.  
• Sir John Simon, a distinguished Liberal lawyer, and Clement Attlee, the future prime minister, co-chaired the commission, which had seven members—four Conservatives, two Labourites, and one Liberal.  
• Recommendations of the Simon Commission  
• • The provinces' Diarchy administration system is to be abolished, and representative governments will be established in its place.  
  • It advocated for the retention of separate electorates until communal violence and tension subsided.  
  • It advocated for a Federation-style structure at the heart, with a "Council of Greater India" representing the interests of both British India and the princely states.  
  • It proposed that seats be reserved for the poorest classes.  
  • To maintain communal hatred, rift, and internet security, the Governor was given discretionary powers.  
  • It was proposed to increase the number of Legislative Council members.  
  • The reforms also suggested incorporating the Commission into the Government of India Act of 1935.  
  • To have complete control over the High Court, the Government of India should have complete control over it.  
• Criticism of Simon Commission  
  • The all-European composition of the Commission was interpreted as an insult to Indian nationalism. As a result, the Indian National Congress resolved to boycott the Commission at all levels and in all forms.  
  • The Commission's seven members were all Englishmen who were members of the British Parliament.  
  • The British government cited the following reasons for not including Indians on the Commission:  
  • They argued that because the committee had to report its findings to the British Parliament, it was only fair to appoint British citizens.  
  • This argument was undermined by the presence of two Indian members of the British Parliament, Lord Sinha and Mr Saklatwala.  
  • The British government declared that because there was no unanimity of Indian opinion on the issue of constitutional development, an Indian could not be appointed to its membership.  
• It was pointed out that they had requested a Round Table Conference of Indians and British, not an English Commission. Congress attempted to resurrect the spirit of non-cooperation through the boycott.  
• However, Indian revolutionaries such as Bhagat Singh and others opposed the Simon Commission, arguing that only Indians should have a say in drafting India's constitution.  
• The Muslim League, led by Muhammed Shaft, as well as the Madras Justice Party, Central Sikh Sangh, and All India Achut Federation, did not object to the Commission.  
• The Simon Commission arrived in Bombay on February 3, 1928, and was greeted with the slogan "Go back, Simon."  
• Lala Lajpat Rai's procession in Lahore was attacked with a lathi, and Lalaji died as a result of his injuries. In Lucknow, Jawaharlal Nehru and G.B. Pant were both charged with carrying a lathi.  
• To avenge the death of Lala Lajpat Rai, a revolutionary group led by Bhagat Singh assassinated Assistant Police Superintendent Saunders.  
• The Commission's popular resentment reflected the popular belief that the future constitution of India should be drafted by the people themselves.  
• Congress called an All Parties Conference in February 1928, and Motilal Nehru appointed a Constitution Drafting Committee on May 19, 1928.  

The Government of India Act of 1935  

• It called for the formation of an All-India federation with provinces and princely states as units.  
• It divided powers between the centre and the units into three lists: federal, provincial, and concurrent. The Viceroy was given residuary powers. However, because princely states did not join, this federation never took off.  
• It abolished dyarchy in the provinces and replaced it with 'provincial autonomy.'  
• The act established responsible government in provinces, requiring the governor to act on the advice of ministers accountable to the provincial legislature.  
• It called for the establishment of a dyarchy at the centre. However, this provision was never implemented.  
• Separate electorates were also extended to the lower classes, women, and the labour Council of India, which was established by the 1858 act, was abolished. Instead, the secretary of state was given a team of advisors.  
• The act established a federal public service commission, a provincial public service commission, a joint public service commission, a federal court, and the Reserve Bank of India.  

Indian Independence Act of 1947  

• The Indian Independence Act of 1947, was crucial because it allowed for the peaceful transfer of power from the Crown to India.   
• It was passed in British Parliament on July 5, 1947, and received royal assent on July 18. After consultations with the main stakeholders — the Indian National Congress, the Muslim League, and representatives of the Sikh community — Viceroy of India Lord Louis Mountbatten and Prime Minister of Britain Clement Attlee devised a plan on June 3, 1947, to divide the British Indian colonies into India and Pakistan.  
• The following are notable features of the Indian Independence Act of 1947:  
  • It declared India to be a sovereign and independent state.  
  • It called for the partition of India and the establishment of two new dominions, India and Pakistan.  
  • It did away with the position of Secretary of State for India.  It abolished the office of the viceroy and established a governor-general for each dominion, to be appointed by the British King on the advice of the dominion cabinet.  
  • It gave the constituent assemblies of the two dominions the authority to draught and adopt any constitution for their respective nations, as well as repeal any act of the British parliament, including the independence act itself.  
  • The constituent assemblies were given the authority to legislate for their respective dominions until new constitutions were drafted and implemented.  
  • The constituent assemblies were given the authority to legislate for their respective dominions until new constitutions were drafted and implemented.  
  • It gave the princely states the option of joining one of the dominions or remaining independent.  
  • The provisions of the GoI act of 1935 were to govern each dominion, and the British monarch could no longer request or veto bills. This, however, was reserved for the Governor-General.  
  • The Governor-General of the dominions was appointed to act with the council's assistance and advice.  
• Evaluation of the features of the act:  
  • Hasty action: the lack of clarity on the border still has repercussions today, with India and Pakistan constantly tussling. The same is true for the Chinese border.  
  • Even today, the issue of Jammu and Kashmir remains a source of contention.  
  • Rise in communal feeling: Another unanticipated result of Partition was that Pakistan's population became more religiously homogeneous than expected.  
  • Suspicion: Indian Muslims are frequently suspected of harbouring Pakistani loyalties; non-Muslim minorities in Pakistan are becoming increasingly vulnerable as a result of the so-called Islamisation of life since the 1980s.  
  • Conclusion: More than a billion people are still living in the shadow of Partition seven decades later. As a result of post-partition identity fragmentation, the much-touted value of tolerance and acceptance appears to have weakened, disrupting social harmony in the country. The political exploitation of religious sentiments has further polarised society.