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Indian Polity / Making of the Constitution

History of Indian Constitution

A Constitution is said to be a written document containing the fundamentals of governance of a country that includes the structure of the Government, the powers of different organs of the Government and also provides and guarantees various rights of the people and at the same time maintains a balance between the powers of the Government and different rights of the people. The history of Indian Constitution dates back to the era of British arrival in India.

Constitutional Development in India

The first and the most important source of Indian Constitution is the Government of India Act, 1935. But before the Act of 1935, the history of Indian Constitution traces back to different Acts that were passed by the British Parliament from time to time to regulate the matters of the East India Company from 1773 until 1858 and after that to govern India directly by the British Crown from 1858 till India got independence. The Indian Independence Act of 1947 was passed for partition related issues. So, the final Constitution of India was developed in a phased manner.

The Acts that gradually paved the way for the Constitutional Development in India are given below,

Historical Background of Indian Constitution

The Regulating Act of 1773

Through this Act, the British Government for the first time, took steps to control the matters of the East India Company in India and it paved the way for a series of Acts that shaped the structure of the Government of India over a period of time.

The major provisions of the Regulating Act of 1773 are that the post of Governor of Bengal was converted into the Governor-General of Bengal. An Executive Council having 4 members, was established to assist the Governor-General.

The Governors of Madras and Bombay were subordinated to the Governor General of Bengal. Warren Hastings became the first Governor General of Bengal. The company had to report its revenues, military and civil matters to the British Government.

Pitts India Act of 1784

Pitts India Act for the first time referred the East India Company controlled territories as the 'British Possessions in India'. Through this Act, all the civil and military affairs of India were brought under the Crown's control.

The important provisions of this Act are,

  • It established a 6-member Board of Control that is appointed by the Crown. The Board was meant to monitor the functioning of the 24-member Court of Directors of the Company.

  • The Governor-General's Executive Council membership was reduced from 4 to 3 which made the Governor-General more powerful.

  • Except in law making, in all matters like revenue, war and diplomacy, the Governors of Bombay and Madras were subordinated to the Governor-General of Bengal.

  • For the trial of accused officials of the Company, a special court was established in England.

  • 3-member Councils were established in Bombay and Madras to assist the Governors.

Charter Act of 1793

The Charter Act of 1793 extended the commercial monopoly of the East India Company for 20 more years. The Governor-General was given more power to overrule the decisions taken by his Council. The Act provided that the expenses incurred by the Board of Control were to be born from the Indian revenues.

Charter Act of 1813

The Charter Act of 1813 terminated monopoly of the East India Company on trade with India and opened it for all. The Act allowed Christian missionaries to propagate Christianity in India. It also made compulsory for the company to establish an Ecclesiastical department and to promote Western education.

Charter Act of 1833

The commercial activities of the East India Company was terminated by this Act while allowing it to retain the political and administrative powers over its territories in India. The post of Governor-General of Bengal was re-designated as Governor-General of India. William Bentick became the first Governor General of India. The government run by the Governor General of India was referred for the first time as the 'Government of India'.

The main provisions of this Act are,

  • The Governor-General of India was given power to make laws applicable for all the company territories in India. That means, the Act allowed for centralisation of legislative powers in India. The Governors of Bombay and Madras presidencies were deprived of their legislative powers.

  • The Act established an All India legislature, called the Legislative Council, created an office for a Law member and provided for the creation of a Law Commission.

  • The Legislative Council now consisted of the Governor-General of India and his Executive Council's 4 other members out of whom one being a Law member, having only legislative powers. The fourth member, who is the Law member, was added through this Act. Lord Macaulay became the first Law member of the Legislative Council.

  • In accordance with the Act, the first Law Commission was established by the British government in 1834. The Law member, Lord Macaulay served as the first Law Commission chairman with three more members in the Commission.

  • To hold any office or employment, discrimination against Indians on the grounds of caste, religion, colour, descent or place of birth was abolished, that means the Act provided for an open competition. But in reality, due to opposition from Court of Directors, this was not put into practice.

  • The Act cut down the membership of Executive Council from 3 to 2 in other Presidencies or Provinces.

  • The President of Board of Control was made as the minister for Indian Affairs.

Charter Act of 1853

The main provisions of this Act are,

  • The Legislative Council was expanded to 12 members. Of the 12 members of Legislative Council, 1 is Governor-General, 1 is Commander-in-Chief, 1 is the Chief Justice of the Supreme Court at Calcutta, 1 is a regular judge of the Supreme Court at Calcutta, 4 are members from the Governor-General's Executive Council and the other 4 are representatives drawn from the local presidency Governments of Madras, Bombay, Bengal and Agra division of North-Western Frontier Province (NWFP).

    This made provincial representatives to be present in the Central Legislative Council. The functions of the Council were separated for the first time into two different wings, namely legislative and executive.

  • The functions of Legislative wing of the Council are performed like in a mini-Parliament, reflecting the procedures followed in the British Parliament.

  • A separate Governor for Bengal was appointed so that the Governor-General of India can focus on all-India issues.

  • It made the civil services in India open to all without any discrimination by ending the privilege of Court of Directors to nominate the civil servants and the recruitment was made through competitive examination.

Government of India Act of 1858

The Government of India Act of 1858, also known as the Act for the Good Government of India, came after the Sepoy Revolt in 1857. It is the first Act for governing India directly under the rule of British Government because after the Revolt, the British Crown abolished the East India Company and acquired sovereignty over India.

The main provisions of the Act are,

  • India was to be governed in the name of the British Queen through a Secretary of State for India, assisted by a 15-member Council, known as the Council of India.

  • The Secretary of State should to be a British MP and a member of the British Prime Minister's Cabinet and was responsible to the British Parliament. Council of India was only an advisory body.

  • The Governor-General of India works under the direct control of the Secretary of State. The Governor-General also came to be known as Viceroy of India. While dealing with British Presidencies, he was called Governor-General, but while dealing with Indian Princely States, he was called the Viceroy.

  • The British Crown appoints the Governors of Presidencies and the Viceroy of India, whereas the members for the Provincial and Central Councils are appointed by the Council of India led by the Secretary of State for India. The first Viceroy of India to be appointed, was Lord Canning.

Indian Councils Act of 1861

The Revolt of 1857 proved the danger of not associating Indians with the legislation of their country. The centralisation of legislation introduced by the 1833 Act was also proved defective. Though the administrative power was transferred from the Company to the British Crown, no fundamental changes in the administrative structure of India were brought in by the Government of India Act of 1858. Hence, the Indian Councils Act was brought in 1861.

The main provisions of the Act are,

  • The membership of Governor-General's Executive Council was increased from 4 to 5. The administrative work was distributed among different members of the Executive Council. This division of work laid the foundation for a kind of Cabinet system.

  • The Act mentioned that not less than half of the Legislative Council members should be non-officials and they were to be nominated by the Governor-General and hold office for a period of two years during his pleasure.

  • For the first time, Indians were inducted into the Legislative Council. The three members, who were nominated by the then Viceroy Lord Canning in 1862, were Maharaja of Patiala, Raja of Benaras and Sir Dinakar Rao.

  • It restored the legislative making powers of Madras and Bombay Presidencies and established new Legislative Councils for Bengal, NWFP and Punjab over a period of time.

  • The Governor General of India was given the power to make Ordinances, if necessary, and such Ordinances would be in force for six months.

Indian Councils Act of 1892

The Act increased the number of non-official members in the Central and Provincial Legislative Councils in partial response to the demand by the Indian National Congress (INC). But official members still formed the majority. It provided for the nomination methods of non-official members in the Legislative Councils.

For Central Legislative Council, the non-official members were to be nominated by Provincial Legislative Councils and the Bengal Chamber of Commerce. Regarding Provincial Councils' nominations, Municipal Committees, District Boards, Universities and Chambers of Commerce were given power to nominate the non-official members.

The Legislative Council powers were increased. The members were empowered to ask questions, to discuss and criticise the Budget but barred from asking supplementary questions. The President of the Legislative Council was empowered with disallowing any question without giving any reason.

Indian Councils Act of 1909

The proposals of this Act were also known as Morley-Minto Reforms named after Lord John Morley, the then Secretary of State for India and Lord Minto, the then Viceroy. The Act of 1892 could not satisfy the demands of people and they were asking for more reforms.

Viceroy Lord Curzon's repression policies and partition of Bengal created unrest among the people. To quell the unrest, the British Government wanted to bring in some reforms to win over the Moderates of INC and the Muslims. For the first time, it introduced the method of election to the Legislative Councils.

The main provisions of this Act are,

  • The strength of the Central Legislative Council was increased to 60, consisting of both nominated and elected members. But official members still formed the majority. The strength of the Provincial Legislative Councils should be from 30 to 50 members. Here, the official majority was terminated. However, strength of both official members and nominated non-official members formed the majority (usually nominated non-official members supported the decision of the Government).

  • The Act provided for inclusion of an Indian member in the Governor-General's Executive Council. The first Indian to be included in the Executive Council was S.P. Sinha. He was appointed as a Law member.

  • The powers of Central and Provincial Legislative Councils were increased. The members could discuss and move resolutions on matters related to public interest and finance. However, these resolutions were not bound to be accepted by the Government. The members were allowed to ask supplementary questions.

  • Communal Representation was provided through this Act. Under this method, the Council members from Muslim community were to be elected by only Muslim voters called Separate Electorate. Communal Representation was one of the biggest defect of this Act that led to partition of India.

Government of India Act of 1919

The proposals of this Act were also known as Montagu-Chelmsford Reforms, named after Edwin Montagu, the then Secretary of State for India, and Lord Chelmsford, the then Viceroy. The Indians provided great service to the British Government in India during the First World War. Thus, the British promised in 1917 that if they came out successful in the war, they would provide some sort of Responsible Government to the Indians.

The main provisions of this Act are,

  • There were changes in the Central Legislature. The Central Legislature should consist of two Houses namely, Council of States and Legislative Assembly, very similar to the current Rajya Sabha and Lok Sabha. In both the Houses, the total number of elected members was increased. The term of the Legislative Assembly was 3 years where as that of the Council of States was 5 years but they might be extended by the Governor-General.

  • The powers of both the Houses were increased. The Central Legislature was empowered with making laws for the whole of British India, but the Viceroy might accept or reject them. In some cases, even to introduce a Bill in a House, the approval of the Viceroy was required. The Viceroy can summon, prorogue and dissolve the two Houses of the Legislature.

  • The election system was changed to direct from indirect one. This Act extended Communal Representation to Indian Christians, Sikhs, Anglo-Indians and Europeans.

  • The Governor-General's Executive Council was also expanded by increasing Indian members from one to three. Since the Indian members were appointed by the Viceroy and they held the office during his pleasure, there was no much difference in the powers of the Viceroy. In addition to that, the Executive Council was not responsible to the Legislature.

  • Powers were divided between Central and Provincial Governments. Items of general nature, such as railways, defence, currency, foreign affairs, communication, etc., that required a uniformity of legislation and applicable to whole of India, were given to the Central Government. Items that were of provincial interest, such as health, education, land revenue, etc., were given to the Provincial Government.

  • In case of Provincial Executive, the Act provided for 'Dyarchy' or dual Government. The Reserved subjects like law and order, police, land revenue, irrigation, etc., were to be administered by the Governor with the help of his nominated Executive Council while the transferred subjects like education, public health, public works, agriculture, etc., were to be administered by the Governor with the support of the ministers chosen by him from the elected Legislative members. These ministers were accountable to the Provincial Legislature.

  • In case of the Provincial Legislature, it consisted of only one House called Provincial Legislative Council. The strength of the Council was increased greatly in accordance with the population of the Province. According to the Act, 70% members of the Provincial Legislative Council were to be elected.

    The power of the Provincial Legislature was enhanced greatly. Its members were given the power to ask questions and supplementary questions and to move adjournment motion and no-confidence motion against the ministers. The Governor was not responsible to the Provincial Legislative Council. He could extend the tenure of the Legislative Council and even dissolve it at his will.

  • A new post of Indian High Commissioner was established with head office located in London. The functions of High Commissioner were to take care of the Indian interests in London, to look after the Indian students staying in England and to buy stores for the Indian Government.

  • For the first time, the Act provided for establishment of a Public Service Commission in India to discharge its duties regarding recruitment and control of public services. In 1926, a Central Public Service Commission was established.

  • The Constitution established through the Act of 1919 was intended for a transitional stage. The British also laid down that after 10 years of implementation of the Constitution, a Commission would be appointed to look into the functioning of these reforms and to recommend further advanced steps in the direction of Responsible Government. In 1927, due to the pressure from INC, Simon Commission was appointed for constitutional advancement.

Government of India Act of 1935

This Act was introduced based on the recommendations that were made by the Simon Commission in 1930, the three Round table conferences that were held in London by the British Government to discuss the Commission's recommendations, and the Poona Pact between the Congress and leaders of the depressed classes.

The main provisions of this Act are,

  • The Government of India Act of 1935 provided for the establishment of an All India Federation with all the British Provinces of India and the Princely States. Since entry of the Princely States was optional, none of the Princely States joined the Federation.

  • Regarding the Federal Legislature, there shall be two Houses, namely the Council of States and the Federal Assembly. The Council of States shall be a permanent body. For every two years, one-third members of the Council of States are to be elected and one-third members will retire. The tenure of the Federal Assembly is five years but it can be dissolved earlier.

  • On the Bills passed by the Legislature, the Governor-General has veto powers. He can exercise all the powers during Emergency. He can also issue Ordinances.

  • Regarding the Federal Executive, 'Dyarchy' was introduced at the Federal level. Reserved Subjects like External Affairs, Defence, Tribal Areas, and Ecclesiastical affairs were administered by the Governor-General with help of the Executive Council, whose members were not responsible to the Legislature.

    All other subjects that were not Reserved, were Transferred Subjects and these subjects were administered by the Governor-General with the help of elected Council of Ministers, who were responsible to the Legislature.

  • Subjects were also divided between the Federation and the Provinces. 59 subjects like Defence, Railways, Post and Telegraph etc., which are of general nature and applicable to whole of India, were put into the Federal list. 54 subjects like land revenue, education, local self government, etc., were put into the Provincial list.

    36 subjects were put into the Concurrent list, in which both Federal and Provincial Legislatures could make laws but in case of conflict, the law made by the Federal Legislature prevails. Residuary powers that were not assigned to anyone, were given to the Governor-General.

  • The Act provided for establishing a Federal Court for settling the disputes arising between the Federal Government and the Provincial Governments and for hearing the appeals against the decisions taken by the High Courts.

  • Regarding the Provincial Legislature, the Act provided for Bicameral Legislature in 6 out of the 11 provinces, namely Bengal, Madras, Bombay, Bihar, United Province and Assam in which there would be two Houses of Legislature, namely Legislative Council and Legislative Assembly.

    The remaining 5 provinces of Punjab, NWFP, Sind, Central Province and Orissa were to have only one House, called the Legislative Assembly. The Act mentioned that all the members of the Legislative Assembly were to be elected.

    The Governor of the Province could veto the Bills passed by Provincial Legislature. He could dissolve the Legislative Assembly and issue Ordinances.

  • Regarding the Provincial Government, 'Dyarchy' was replaced by Provincial Autonomy. All the Provincial subjects that were mentioned in the Provincial list, were placed under the charge of elected Council of Ministers, who were responsible to the Legislature.

  • Provincial Executive consisted of Governor, assisted by Council of Ministers. These ministers were appointed by the Governor from the majority party of the Legislature.

  • The Act provided for a Federal Public Service Commission and Provincial Public Service Commission for selecting the candidates into the services.

  • The Government of India Act separated Burma from India in 1935 and also created two new Provinces, namely Sind and Orissa.

Indian Independence Act of 1947

The Indian Independence Act of 1947 declared that effective from 15th August 1947 (referred to as the Appointed Day), India ceased to be a dependency. The suzerainty of the British Crown over the States of India and the treaty related with Tribal Areas also lapsed from the date.

The main provisions of this Act are,

  • The Act provided for partition of India and creation of two independent dominions, namely India and Pakistan. The Princely States should have the freedom of joining either of the dominions or to remain independent.

  • The Office of the Secretary of State for India and the Office of Viceroy were abolished.

  • The Governors-Generals were to be appointed by the British Crown on the advice of the respective Cabinets of the two Dominions of India and Pakistan. Governors-Generals became the constitutional heads of the two new dominions.

  • The Governors-General and the Provincial Governors were to act on the advice of Council of Ministers, who were having the confidence of the Legislature.

  • The Constituent Assemblies were to function as the Central Legislature for their respective dominions till they could formulate a Constitution for their dominions.

  • It provided for the governance of each dominion under the Government of India Act of 1935, till new Constitutions were framed.

Different Types of Constitutions

  • A Constitution can either be (1) Unwritten (or) Written or (2) Flexible (or) Rigid

    • Unwritten - It is a type of Constitution, where it contains very few aspects of administration but are not compiled or codified into a single written document, e.g. Britain

    • Written - In this type, all the aspects of administration are reduced to writing, e.g. USA, India, etc. Even in written Constitutions, some unwritten conventions are followed like in India where the President should not be elected for more than two times. The first written Constitution in the world is US Constitution.

    • Flexible - It is a type of Constitution which does not involve a special procedure or special majority in order amend it. The Constitution of the country is amended like a Statutory law. That is, there is no difference between ordinary law or Constitutional amendment law.

    • Rigid - If a Constitution is to be amended with a special majority, it will be called rigid Constitution.

  • Indian Constitution is a combination of both flexibility and rigidity. It is somewhat more rigid than flexible. We have basically a rigid Constitution because of the federal structure of the Government. As India is a developing country, we incorporated some elements of flexibility into our Constitution by means of Amendments. Article 368 deals with amendments to the Indian Constitution.

  • In India, some parts of the Constitution are amended by the Parliament with simple majority without invoking Article 368, e.g. Abolition and creation of states. Any amendment that is made to the Indian Constitution with simple majority is not deemed to be an amendment. That is, no number will be given to such an amendment.