Historical Underpinnings of Constitution of India

Table of Contents:

BACKGROUND

Various features of the Indian Constitution and polity have their roots in the British rule. There are certain events in the British rule that laid down the legal framework for the organization and functioning of government and administration in British India. These events have greatly influenced our constitution and polity.

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REGULATING ACT OF 1773

What led to the passing of the Regulating Act of 1773?

• Failure of the dual government: The concept of the dual form of administration instituted by Robert Clive in 1765. Under this system, the company had Diwani Rights in Bengal and the Nawab had Nizamat rights (judicial and policing rights). Behind the curtains, Nizamat rights were also in the hands of Company as the Nawab acted as an agent of the company. These all only laid to the suffering of the people as they were being exploited by both the Nawabs and the Company.
• Financial crisis within the company: The Bengal Famine of 1770, corruption among the officials affected the revenues of the company. The company had asked for a loan of one million pounds from the British Government in the year 1772.
• Acquisition of territories: The company through earlier charters had only been given trading rights by the British Parliament. But, slowly and slowly, as it started acquiring more and more territory, it started acting like a ruling body. To put an end to this tendency of company i.e. using the political powers in the name of trading rights, it was necessary that these territories should be brought under the control of British Parliament.

Features of the Act

• 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. Thus, for the first time, the British cabinet was given the right to exercise control over Indian affairs.

Significance

• It was the first step taken by the British Government to control and regulate the affairs of the East India Company in India.
• It was attempted to check corruption in administration of company.
• It recognized, for the first time, the political and administrative functions of the Company.
• It laid the foundations of central administration in India. Therefore, the Act introduced the element of centralized administration.

Defects

• The Governor-General had no veto power.
• It did not address the concerns of the Indian population who were paying revenue to the company.
• It did not stop corruption among the company officials.
• The Supreme Court’s powers were not well-defined.
• The parliamentary control that was sought in the activities of the company proved to be ineffective as there was no mechanism to study the reports sent by the Governor-General in Council.

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CHARTER ACT OF 1833

This Act was the final step towards centralization in British India.

How centralization was an evolving process?

• Regulating Act, 1773: Before 1773, there existed three presidencies – Bengal, Madras, and Bombay in the country. All these three presidencies were independent of each other and there was no centralized authority in India to control them. The act made the governors of Bombay and Madras presidencies subordinate to the governor-general of Bengal.
• Pitts India Act, 1784: This Act was a further extension of the control of the British Government over the company affairs. Board of control was established to control the civil, military, and revenue affairs of the company. The Court of Proprietors was no more empowered to revoke or suspend the resolution of the directors approved by the Board of Control.

What led to the passing of the Charter Act of 1833?

• In India, the policy of intervention and territorial aggrandizement pursued by Wellesley and Hastings had added enormously to the territories of the Company and also to the consequent difficulties in administration.
• In England, Parliamentary reforms had brought into being a reformed House of Commons where liberalism was the ascendancy.
• There was a clamor for freedom of trade in India, unrestricted immigration of Europeans into India, reform of Indian laws and also important to mention the influence, among others, of two Liberals who were intimately associated with the Company’s headquarters at that time- Thomas Babington Macaulay and James Mill.

Features of the Act

• It made the Governor-General of Bengal as the Governor-General of India and vested in him all civil and military powers. 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. Lord William Bentick was the first governor-general of India.
• The laws made under the previous acts were called Regulations, while laws made under this act were called Acts.
• It ended the activities of the East India Company as a commercial body, which became a purely administrative body. It provided that the company’s territories in India were held by it ‘in trust for His Majesty, His heirs, and successors’.
• All restrictions on European immigration and the acquisition of property in India were lifted. Thus, the way was paved for the wholesale European colonization of India.
• In India, a financial, legislative, and administrative centralization of the government was envisaged:
  • The governor-general was given the power to superintend, control, and direct all civil and military affairs of the Company.
  • The Governments of Madras and Bombay were drastically deprived of their legislative powers.
  • Bengal, Madras, Bombay, and all other territories were placed under complete control of the governor-general.
  • All revenues were to be raised under the authority of the governor-general, who would have complete control over the expenditure too.
• A law member was added to the governor-general’s council for professional advice on law-making. Indian laws were to be codified and consolidated.
• No Indian citizen was to be denied employment under the Company on the basis of religion, color, birth, descent, etc. (Although the reality was different, this declaration formed the sheet-anchor of political agitation in India.)
• The administration was urged to take steps to ameliorate the conditions of slaves and to ultimately abolish slavery. (Slavery was abolished in 1843.)

Significance

• It took a major step in the centralization of the Indian Administration.
• It abolished all the trade privileges being enjoyed by the British East India Company.
• It made the British East India Company an administrative agency.
• Different laws were codified under Lord Macaulay’s Committee.
• The provision of Indians to enter the government services was put forth.

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THE CHARTER ACT OF 1853

It was the last series of Charter Acts passed by the British Parliament between 1793 and 1853. Lord Dalhousie was the Governor-General of India when the charter act of 1853 was passed.

What led to the passing of the Charter Act?

• The two main events that led to the passing of the Charter Act of 1853 were the Raja Ram Mohan Roy’s visit to England and the petitions of Bombay and the Madras Native Associations. On the basis of the reports made by the Select Committees of Enquiry in 1852, this Act was formulated.
• Inadequacy of Charter Act of 1833 was the prime reason behind the new Act.
• Further territorial and political changes in India after the act of 1833 necessitated a new act. The British East India Company had already annexed Sind and Punjab and a number of other Indian states.
• There was also a demand for decentralization of powers and giving the Indians share in the management of their own affairs. It was under the above circumstances that the British Parliament decided to renew the East India Company’s charter in the year 1853.
• The Company in the preceding year appointed two Committees to look into the affairs of the Company. On the basis of their reports, the Charter Act of 1853 was framed and passed.

Features of the Act:

• It separated for the first time the legislature and executive functions of the Governor-General’s Council.
• It provided for the addition of six new members to the council, known as legislative councilors.
• To put it another way, it created a separate Governor General’s Legislative Council, which became known as the Indian (Central) Legislative Council.
• The council’s legislative branch acted as a mini-Parliament, following the same procedures as the British Parliament.
• For the first time, legislation was considered a distinct government function, needing specialized apparatus and procedures.
• The procedure of the Governor-General’s Council in matters of legislation was to be the same as followed by the British Parliament. Members could ask questions and discuss the policies of the Executive Council.
• Right to veto a bill passed by the Council in its legislative capacity was given to the Executive Council.
• Legislative business was conducted in public, and the discussion was oral.
• Bills were referred to the Select Committee rather than to any individual members.

Reduction in the number of Directors and their power

• The number of members of the court of directors was reduced from 24 to 18, out of which 6 were to be nominated by the Crown.
• By the Act of 1853, the Court of Directors was disposed of their power of patronage, and high posts were made subject to competitive examinations where no discrimination would be made based on caste, creed, or religion.
• The Macaulay Committee of 1854, which was the Committee for the Indian Civil Service, enforced this scheme.
• The Court of Directors was empowered to constitute a new Presidency.
• The court of Directors, by the Act, could also alter the boundaries of the existing states and incorporate the newly acquired state. This provision was made to create a separate Lieutenant Governorship for Punjab in the year 1859.

Second Law Commission

• Under the provisions of the Charter Act of 1853, the second Law Commission was appointed in England on 29th November 1853. The second Law Commission was composed of the following persons: Sir Edward Rayan, Robert Lowe, Lord Sherbrooke, V.H. Cameron, J.M. MacLeod, and T.F. Ellis.

Power with respect to the presidency

A separate Governor may be appointed for the Presidency of Bengal:

• Provision was made for the appointment of a separate Governor for the Presidency of Bengal, and until that was made, the Court of Directors might authorize the Governor-General of India in Council to appoint a covenant servant of ten years standing as the Lieutenant-Governor of the province. The latter appointment was made as it was the cheaper of the two.

Directors may create one new Presidency or authorize Governor General to appoint a Lieutenant Governor:

• Power was given to the Court of Directors to constitute a new Presidency. Power was also given to alter and regulate from time to time the limits of the various provinces. This power was used to create the Punjab into a Lieutenant-Governorship.

Open Competition System

• It introduced an open competition system of selection and recruitment of civil servants.
• As a result, the covenanted civil service was thrown open to Indians as well.
• In 1854, the Macaulay Committee (the Committee on Indian Civil Service) was appointed.

Significance

• The Charter Act of 1853 indicated clearly that the rule of the Company was not going to last forever.
• The most important feature was the distinction between the Legislative and Executive Council, which marks the beginning of the parliamentary system in India.
• The Governor-General was relieved of the administrative duties of Bengal and instead worked for the Government of India.
• The Charter Act of 1853 provided for the creation and functioning of the Legislative Council, which is considered an important constitutional measure.

Criticism

• Exclusion of the Indians from the Legislative Council was one of the major defects of the Charter Act of 1853.
• As the Charter Act of 1853 did not give the East India Company the right to govern India for another 20 years, it gave an opportunity to the Home Government to step in and take the place of the East India Company in India. This process was hastened by the happenings of 1857, or the so-called ‘Mutiny.’

Conclusion

The Charter Act of 1853 was the last Charter Act passed for the East India Company. The Act did not grant commercial privileges for a specific period of time as preceding Charter Acts had provided. The Charter Act of 1853 marks the beginning of the parliamentary system in India. The Governor-General was relieved of administrative duties of Bengal and instead worked for the Government of India. This process was hastened by the happenings of 1857, or the so-called ‘Mutiny.’

GOVERNMENT OF INDIA ACT OF 1858

• The Act of 1858 declared that henceforth, “India shall be governed by and in the name of the Queen.” The Government of India was to be carried on by the Viceroy on behalf of the Queen.
• The Board of Control and the Court of Directors were abolished, and all the powers possessed by them were given to the Secretary of State. The Secretary of State was given the power to superintend, control, and direct the affairs of the Government of India. The Secretary of State was to be a member of the Cabinet, but his salary and allowances were charged on the revenues of India.
• As regards the Indian Council of the Secretary of State, it was to consist of 15 members. Out of the total, 7 were to be elected by the Court of Directors, and the rest of the 8 members were to be appointed by the Crown. More than half the members of the Council were to be those persons who had lived in India for 10 years or more and had not left India for more than 10 years at the date of appointment.
• The Secretary of State was to preside over the meetings of the India Council. He was given not only a vote but also a casting vote.

Constitutional importance of the Act of 1858

• It provided for the direct role of the Crown. Henceforth, India was to be governed by and in the name of Her Majesty.
• It ended the dual arrangement at home – Court of Directors (COD) and Board of Control (BOC). It was replaced by the office of the Secretary of State.
• The establishment of the India Council in 1858 was another measure of great importance. Its predecessor, the Court of Directors, exhibited complete ignorance regarding Indian affairs, as most of these Directors had never been to India. The members of the Council, on the other hand, were to be fully aware of even petty details about Indian affairs as they were to be equipped with 10 years of residential or service qualifications in India before the appointment.
• It provided for the abandonment of the policy of conquest and annexation and thus established a new healthy relationship between the native rulers and foreign masters.

Issues with the Act

• It did not grant any political rights to Indians nor did it allow them a share in the administration of their country.
• It was not a comprehensive act and left open many spaces for ambiguities which paved the way for the Indian Councils Act of 1861.

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GOVERNMENT OF INDIA ACT OF 1919

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).

What led to the passing of the Act of 1919?

• Failure of the Act of 1909 to introduce a responsible Government in India.
• Pressure generated by the Home Rule Movement and revolutionary activities.
• At the outbreak of World War I in 1914, the British Government affirmed that it was entering the war to make the world safe for democracy. The Indians took the promise at face value and extended wholehearted support to the war efforts of the Government. Indian public looked forward to a reward for their wartime services, but they were treated with bullets and martial law.

Edwin Montagu, the Secretary of State for India, made a declaration on behalf of the British Government in 1917. In his statement before the House of Commons, he said that the British policy in India would henceforth be directed towards securing the association of Indians in every branch of administration and the progressive realization of responsible government in India. In pursuance of this policy, the Parliament passed an Act in 1919 entitled Government of India Act, 1919.

Features of the Act

• It relaxed the central control over the provinces by demarcating and separating the central and provincial subjects. The central and provincial legislatures were authorized to make laws on their respective lists of subjects. However, the structure of government continued to be centralized and unitary.
• It further 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. However, this experiment was largely unsuccessful.
• 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 Houses were chosen by direct election.
• It required that 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 provided for the establishment of a public service commission. Hence, a Central Public Service Commission was set up in 1926 for recruiting civil servants.
• It separated, for the first time, provincial budgets from the Central budget and authorized the provincial legislatures to enact their budgets.
• The Indian legislature under the Act of 1919 was only a non-sovereign law-making body and was powerless before the executive in all spheres of governmental activity.

Significance

• This act expanded the election area in India, and people now began to understand the significance of voting.
• By the Government of India Act, 1919, the government for the first time showed its intention of gradually introducing responsible government in India.
• The concept of Self-Government in Provinces was introduced. Power was given to the people for administration, and administrative pressure from the government was greatly reduced.
• Self-Government now became the government policy. Therefore, the demand of Nationalists and the Home Rule League could no longer be termed as seditious.
• Indians now became aware of the process of administration, making them more awakened towards achieving the goal of Swaraj.
• Some Indian women also had the right to vote for the first time.

Defects

• It further developed a sense of communalism as representation of specific castes and religions was given.
• Provincial ministers were not given any control over finances or bureaucrats.
• Ministers were often not consulted on important matters and could be overruled by the governor on any matter that the latter considered special.
• The governor was given power to make decisions on all important matters related to administration; he could also overrule the decisions taken by the council of ministers.
• Elected Indian ministers were given no real powers.
• The franchise was very limited. It did not extend to the common man.

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GOVERNMENT OF INDIA ACT OF 1935

The Act marked a second milestone towards a completely responsible government in India. It was a lengthy and detailed document, having 321 Sections and 10 Schedules.

Features of the Act

• 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 (for Centre, with 59 items), Provincial List (for provinces, with 54 items), and the Concurrent List (for both, with 36 items). Residuary powers were given to the Viceroy. However, 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 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 bicameralism in six out of eleven provinces.
• It further extended the principle of communal representation by providing separate electorates for depressed classes (scheduled castes), women, and labor (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 percent of the total population got the voting right.
• It provided for the establishment of a Federal Court, which was set up in 1937.

Significance

• Government of India Act 1935 curtailed the power concentrated in the hands of the Central Government and distributed it among decentralized forms of government.
• Separate electorates for women, despite the fact that they had not requested it, were beneficial to women’s advancement in the decision-making process. Workers had their own representation as well, which aided in the progress of the working class.
• This Act was the first attempt to give the provinces an autonomous status by freeing them from external interference.
• Another reason was that this Act provided voting rights to more people than were given under the Government of India Act, 1919.
• This Act also suggested the establishment of a federal government that would allow princes to participate in India’s political activities. Furthermore, the drafters of the Indian Constitution took into account those characteristics of the Government of India Act that were well-suited to a free India.
• The Constitution of India also borrowed the feature that every state should have a Governor who would be elected by the Central Government.
• The Public Service Commission that we see in Article 315 of the Indian Constitution had also been taken from the Government of India Act, 1935.

Defects

• The new Act armed the Governors and Governor-General with tremendous discretionary powers and thus reduced Provincial Autonomy to a farce.
• The proposed formation of the Federation was also fundamentally defective. Entry into the Federation was compulsory for the provinces but voluntary for the Princely States. Besides, the States were to be represented in the Federal Legislature not by the elected representatives of the States but by the nominees of the native rulers.
• The Act failed to provide a proper federal structure; the majority of the power was with the Governor-General.
• It not only retained the system of Communal Electorate but also extended its application in the case of Harijans, Labour, and women.
• In the name of preserving minorities against Hindu tyranny, the Governor-General and the Governor were given broad powers by the Act of 1935.
• Until 1947, the British Parliament and the Secretary of State for India were the de facto rulers of the country. As a result, it’s not unexpected that the Act of 1935 was met with disdain and resentment.
• The legislation failed to provide individuals with constitutional flexibility in terms of amending their rights because the British government had the ability to adjust or alter any right, while Indians were unable to do anything in accordance with their demands.

UPSC Mains Questions

1. “The various Acts passed by the British Parliament laid the foundation for centralized administration in India.” Discuss the evolution of the British administrative system in India from the Regulating Act of 1773 to the Government of India Act of 1935. (250 words)
2. “The British Parliament’s interventions in Indian administration were aimed at consolidating their control over the Indian territories.” Critically examine the significant legislative measures from the Regulating Act of 1773 to the Government of India Act of 1858 and their implications for India’s political and administrative system. (250 words)
3. Discuss how the Charter Acts (1813, 1833, and 1853) led to the centralization of power in British India. How did these Acts influence the administrative structure in India? (250 words)
4. “The Government of India Act of 1935 was a milestone in the constitutional development of India.” Examine its key provisions and assess how it influenced the future course of Indian political development. (250 words)
5. “The Government of India Act of 1919 introduced dyarchy in the provinces, a system that was largely unsuccessful.” Analyze the reasons behind the failure of dyarchy and its implications for provincial autonomy. (250 words)
6. “The Charter Act of 1853 laid the groundwork for the parliamentary system of governance in India.” Examine the provisions of the Act that led to the gradual development of parliamentary institutions in India. (150 words)
7. Evaluate the impact of the Government of India Act of 1858 on the relationship between the British Crown and the Indian administration. How did this Act change the governance structure in India? (150 words)
8. “The evolution of representative institutions in India was a gradual process that culminated in the Indian Independence Act of 1947.” Trace this evolution with special reference to the Indian Councils Acts (1861, 1892, 1909) and the Government of India Acts (1919, 1935). (250 words)
9. “The Acts passed by the British Parliament before 1857 primarily focused on consolidating British trade interests, but after 1857 the focus shifted towards political control and administration.” Discuss this transition in British policy towards India from 1773 to 1935. (250 words)
10. “The Government of India Act of 1935 was both a success and a failure.” Critically analyze the provisions of the Act and discuss its strengths and weaknesses in terms of creating a federal system in India. (250 words)