Lesson 4 of 86

2. Historical Background of Indian Constitution

Prior to 1947, India was segregated to two main structures- British India and Princely states. British India composed of 11 provinces and princely states were Indian princes underneath the policy of subsidiary alliance. These two structures combined to create the Indian Union. Even till now, several legacy systems of British India are being followed. The regulations and acts passed before Indian independence, constitutes the traces of historical underpinnings and the evolution of Constitution of India.

The evolution- During British Rule

Regulating Act of 1773

  • This was the first step on the part of the British Government to regulate East India Company’s (EIC) affairs in India.

  • For the first time, EIC’s political and administrative (besides, the commercial) functions were recognized.

  • The first time, “Governor of Bengal” was delegated as “Governor-General of Bengal” and Governors of Madras and Bombay were made subordinate to him.

  • Warren Hastings was the first Governor-General of India.

  • To assist Governor-General, the first time this act created a 4-member executive council.

  • First time Supreme Court at Calcutta was established consisting of 1 Chief Justice and 3 other judges.

  • Private trade by EIC officials was prohibited.

  • The number was fixed at 24 of the EIC directors.

Pitt’s India Act of 1784

  • For the first time, the company’s territories as “British Possessions in India” were recognized.

  • It differentiated between the company’s political and commercial roles – by setting up a new body i.e. “Board of control” to handle political affairs.

  • Henceforth, “Court of Directors” was only permitted to manage commercial affairs.

  • This was also known as “Double Government”.

  • However, Board of control was given more powers as it can control, direct, and supervise all functions in India related to military civil, revenue, etc.

Charter Act of 1833

  • Here Governor-General of Bengal was designated as Governor-General of India and was conferred with all civil and military powers.

  • He was also vested with exclusive legislative powers for the whole of British India.

  • The first Governor-General of India was William Bentick.

  • EIC was made a trustee of British Crown, the Act stated- the company retains Indian Territories ‘in trust of his majesty, his heirs, and successors’. It also converted EIC into a solely administrative body (i.e. no more commercial body)

  • This act also sought open competition in civil services and their indigenization – but this provision persisted only on paper due to the Court of Directors’ stiff opposition.

Charter Act of 1853

  • It divided the legislative and executive functions of the Council of Governors – General – seen as the first move in the establishment of modern-day Parliament in India.

  • To “Indian (Central) Legislative Council” were added, 6 members. The provincial/local governments of Madras, Bombay, Agra, and Bengal were to appoint 4 of the 6 representatives.

  • An open competition was instituted in civil services on the basis of recommendations of the Macaulay Committee (1854) and Indians were also permitted in higher civil services. 

Government of India Act of 1858

  • It is also termed as “Act for the Good Government of India”.

  • It has abolished the court of directors and the board of control.

  • It completely abolished EIC rule and transferred rule to the British Crown. 

  • The designation of the Governor-General of India changed to “Viceroy of India”. The first viceroy was- Lord Canning and he was directed direct representative of British Crown.

  • A new post was made, “Secretary of State“: 

    1.  Member of the British cabinet.

    2. He was given full control and authority over the administration of India.

    3. He was eventually responsible for the British Parliament.

    4. A Council of 15 members was created to advise and assist him.

    5. This State-in-Council Secretary was created like a corporate entity.

Indian Councils Act of 1861

  • It has given that several Indians were to be nominated by the Viceroy as non-official representatives of his expanded Legislative Council. Thus, in 1862, they appointed Raja of Benaras, Sir Dinakar Rao, and Maharaja of Patiala. 

  • The Bombay and Madras Presidencies’ legislative powers were restored- a move towards federalism.

  • It also called for the creation of new legislative councils in the provinces of Bengal (1862), North-West (1886), and Punjab (1897).

    More Powers were given to Viceroy:

    1. The power to make rules and orders in the council for more convenient business transactions.

    2. A Portfolio system was established.

    3. Power of giving ordinances- with the validity of 6 months.

India Council Act of 1892

  • Legislative Council has been granted powers to discuss the budget and to ask the questions to the executive.

  • It allowed for the nomination of certain non-official members (those were like indirect elections):

    1. To central Legislative Council: On advisory of the Provincial Legislative Council and Bengal Chamber of Commerce.

    2. To Provincial Legislative Councils: On advisory of universities, local bodies, trade associations, etc.  

Indian Councils Act of 1909

  • The Central Legislative Council’s members increased from 16 to 60. Likewise, the numbers in Provincial Councils have also increased.

  • Though the official majority was maintained in the Central Legislative Council, the non-official majority was permitted in provincial councils.

  • Legislative councils have increased their deliberative functions as members can ask supplementary questions, move resolutions, etc.

  • First-time Association of Indians was permitted on both levels in “Executive Councils.” Satyendra Prasad Sinha thus was the first Indian to join the Executive Council of Viceroy.

  • Separate Electorate for Muslims: Muslim members were only to be elected by Muslim voters.

  • This act further allowed for presidency corporation, Zamindars, Universities, chambers of commerce to be represented separately.

Government of India Act of 1919

  • It is also known as “Montague-Chelmsford Reform.

  • It divided the Central and Provincial subject lists and allowed them to make laws on their respective subject lists.

  • Introduced Dyarchy– The Provincial subjects were classified into “reserved” and “transferred”.

  • Introduced Bicameralism– Replacement of Indian Legislative Council into Upper House and Lower House.

  • Introduced direct Elections- The majority of the members were chosen by direct elections in both the houses. Still, on the grounds of tax, property, or education, the franchise was given to a limited number of Indians.

  • It divided the Central and Provincial budgets, authorizing provincial legislatures to issue their own budgets.

  • 3 of the 6 Viceroy’s Executive Council members (other than the Commander-in-Chief) were to be Indian.

  • Separate electorates for Indian Christians, Sikhs, Anglo-Indians, and Europeans were introduced.

  • Introduced new office of High Commissioner for India and few functions of Secretary of State were transferred to him.

  • It called for the creation of a Public Service Commission and a Central Public Service Commission was established in 1926.

Government of India Act of 1935

  • It called for the formation of an “All India Federation” that would consist of princely states and provinces as units.  In this, the Federal, Provincial, and Concurrent List were also provided. But this type of federation never came into existence.

  • Dyarchy was replaced by Provincial autonomy. The Governor was supposed to act with the advice of ministers who were responsible for the provincial legislature.

  • It introduced dyarchy for the centre. But this never came into force.

  • In 6 out of 11 provinces, Bicameralism was introduced.

  • For women, depressed classes, and labour- separate electorates were introduced.

  • This expanded the franchise and thereby 10% of the overall population had voting rights.

  • This called for the formation of the Federal Court, RBI, the Provincial Public Services Commission, and the Joint Public Service Commission.

Indian Independence Act of 1947

  • It brought British rule to an end and proclaimed India an independent Country.

  • This called for the partition of India.

  • This has abolished the Viceroy’s office and called for the appointment of the Governor-General by the British King on the recommendation of the dominion cabinet.

  • This allowed the Constituent Assembly to draft and adopt any Constitution and can make any laws before the ratification of the new Constitution.

  • This therefore also abolished the office of Secretary of State and moved his responsibilities and functions to ‘Secretary of State for Commonwealth affairs’.

  • It created independent princely states and allowed them the freedom to join India or Pakistan, or continue to be independent.
  • •The Indian Government Act 1935 will continue until the new Constitution is framed or it is revised by the Constituent Assembly.

  • The Governor-General of India and the Provincial Governors were designated as nominal heads of states. They were supposed to act on the recommendations of the Council of Ministers.

  • Since this act terminated the appointment to civil services. However, the appointment of civil servants before 15 August 1947 will continue to enjoy all the benefits, they were entitled to till that period.

Points to be Noted

  • Laws made before the Charter Act of 1833 were called Regulations and those made after are called Acts.

  • Lord Warren Hastings created the office of District Collector in 1772, but judicial powers were separated from District collector later by Cornwallis.

  • From the powerful authorities of unchecked executives, the Indian administration developed into a responsible government answerable to the legislature and people.

  • The development of the portfolio system and budget points to the separation of power.

  • Lord Mayo’s resolution on financial decentralization visualized the development of local self-government institutions in India (1870).

  • 1882: Lord Ripon’s resolution was hailed as the ‘Magna Carta’ of local self-government. He is regarded as the ‘Father of local self-government in India’.

  • 1924: Railway Budget was separated from the General Budget based on the Acworth Committee report (1921).
  • From 1773 to 1858, the British tried for the centralization of power. It was from the 1861 Councils act they shifted towards devolution of power with provinces.

  • 1833 Charter act was the most important act before the act of 1909.

  • Till 1947, the Government of India functioned under the provisions of the 1919 Act only. The provisions of the 1935 Act relating to Federation and Dyarchy were never implemented.

  • The Executive Council provided by the 1919 Act continued to advise the Viceroy till 1947. The modern executive (Council of Ministers) owes its legacy to the executive council.

  • The Legislative Council and Assembly developed into Rajyasabha and Loksabha after independence.

Evolution of Constitution after Independence – Constituent Assembly

•The idea of Constituent Assembly was first put forward by M. N. Roy in 1934.

•Indian National Congress officially demanded Constituent Assembly, first time, in 1935.

•This demand was officially accepted in principle by British Government in “August Offer” of 1940.

•The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan.

•Mahatma Gandhi was not part of it.

•Members from Provinces were to be indirectly elected and members from Princely states were to be nominated by the kings.

•Elephant was adopted as symbol of Assembly.

  • Objective Resolution:

    • It was moved by Jawaharlal Nehru on Dec 13, 1946.
    • It laid down fundamentals and philosophy of the Constitutional structure.
    • It was unanimously adopted.
    • Its modified version forms Preamble of present Constitution.

Constituent Assembly also adopted National flag, National Anthem, National Flag; ratified India’s membership to Commonwealth; and elected India’s first President i.e. Dr Rajendra Prasad.

•Although, Constitution was passed on November 26, 1949 but it came into force on January 26, 1950.

NamePosition in Constituent Assembly
Dr Sachchidananda SinhaTemporary President (based on French Practice)
Dr Rajendra PrasadPresident (When Assembly met as Constitutional body)
G V MavlankarPresident (When Assembly met as Parliament)
H. C. Mukherjee and V. T. KrishnamachariVice-Presidents
B.N. RauLegal Advisor to Constituent Assembly
B R AmbedkarHead of Drafting Committee
Jawaharlal NehruHead of Union Powers Committee, Union Constitution Committee, States Committee etc.
Dr Rajendra PrasadHead of Rules of Procedure Committee, Steering Committee, Finance and Staff Committee etc.
Sardar PatelHead of Provincial Constitution Committee

Critical Analysis of Constituent Assembly:

•Not a Popular body.

•Not a Sovereign body.

•Time consuming.

•Dominated by Congress.

•Dominated by One community.

•Dominated by Lawyers.

Question – Outline the Constitutional Development of India before Independence.

Practice answers here:

Question – Did the Government of India Act, 1935 lay down a federal constitution? Discuss. (UPSC Mains 2016)

Question – The Charter Act of 1853 marked the beginning of Parliamentary system in India.” Explain.