Constitutional Development During British Period


Ajit Kumar AJIT KUMARWISDOM IAS, New Delhi.

The Constitution of India was adopted in, November, 1949 and enacted in January 1950. It
was influenced by numerous political system of the world and numerous Acts passed by British
Government, especially the Government of India Act 1935. The English East India Company was founded in London in 1600, whose one share holder was Queen Elizabeth I, to have trade with India. Within a span of about 150 years, the company became a territorial power. The company’s commercial activities came under cloud and the British Government sought to regulate its affairs and assert sovereignty over the company's expanding territories, until the British Government finally took over region of India in 1958. But for the people of India the rule continued to be the same suppressive and exploitive.
The Regulating Act of 1773
The Regulating Act of 1773 opened a new chapter in the constitutional history of the Company. Previously, the Home government in England consisted of the Court of Directors and the Court of Proprietors. The Court of Directors were elected annually and practically managed the affairs of the Company. In India, each of the three presidencies was independent and responsible only to
the Home Government. The government of the presidency was conducted by a Governor and a Council.
Provisions of the Act The Regulating Act reformed the Company’s Government at Home and in India. The important provisions of the Act were:
(i) The term of office of the members of the Court of Directors was extended from one year to four years. One-fourth of them were to retire every year and the retiring Directors were not eligible for re-election.
(ii) The Governor of Bengal was styled the Governor-General of Fort William whose tenure of office was for a period of five years.
(iii) A council of four members was appointed to assist the Governor-General. The government was to be conducted in accordance with the decision of the majority. The Governor- General had a casting vote in case of a tie.
(iv) The Governor-General in Council was made supreme over the other Presidencies in matters of war and peace.
(v) Provision was made in the Act for the establishment of a Supreme Court at Calcutta consisting of a Chief Justice and three junior judges. It was to be independent of the Governor- General in Council. In 1774, the Supreme Court was established by a Royal Charter.
(vi) This Act prevented the servants of the Company including the Governor-General, members of his council and the judges of the Supreme Court from receiving directly or indirectly any gifts in kind or cash.
Pitt’s India Act, 1784
The Regulating Act proved to be an unsatisfactory document as it failed in its objective. In January 1784, Pitt the Younger (who became Prime Minister of England after the General Elections) introduced the India Bill in the British Parliament. Despite bitter debate in both the Houses, the bill was passed after seven months and it received royal assent in August 1784. This was the famous Pitt’s India Act of 1784.
Main Provisions (i) A Board of Control consisting of six members was created. They were appointed by the Crown. (ii) The Court of Directors was retained without any alteration in its composition.
(iii) The Act also introduced significant changes in the Indian administration. It reduced the number of the members of the Governor-General’s Council from four to three including the Commander-in-Chief.
Pitt’s India Act constitutes a significant landmark with regard to the foreign policy of the Company. A critical review of the Act reveals that it had introduced a kind of contradiction in the functions of the Company. The Court of Directors controlled its commercial functions, whereas the Board of Control maintained its political affairs. In fact, the Board represented the King, and the Directors symbolized the Company.
Charter Act of 1813
By 1813 when renewal of the Company’s charter was due there were elaborate discussions about the justification of the commercial privileges enjoyed by the company. The extent of the company’s territories in India had so much expanded that it was considered to be impossible for it to continue both a commercial and political functionary. Englishmen demanded a share in the trade with India in view of the new economic theories of laissez faire and the continental system introduced by Napolean.The Englishmen demanded the termination of the commercial monopoly of the company. The Act of 1813 renewed the charter of the East India Company for 20 years. The company was deprived of its monopoly trade with India but she was to enjoy her monopoly of trade with China for 20 years. Trade was thrown open to all British subjects the company retaining only its monopoly over tea and the china trade. While offering the company’s right to the territorial possession and revenues of India, the Act proclaimed the sovereignty of the crown over them. The Indian administration was asked to maintain separate accounts for its commercial and political activities.
The Directors kept their rights of patronage but all important appointment were henceforth to be subject to the approval of the crown. The Act marks the beginning of an ecclesiastical establishment in India for missionaries were now permitted to settle in the country. An educational policy was also initiated by the grant of Rs one lakh out of the Company’s Indian revenues for the encouragement of education, literature and science. Local governments of India were given the right of levying taxes on their subjects and punishing those not paying them.
Charter Act of 1833
The Regulating Act of 1773 made it compulsory to renew the Company’s Charter after twenty years. Hence, the Charter Act of 1793 was passed by the Parliament. It extended the life of Company for another twenty years and introduced minor changes in the existing set up. The Charter Act of 1813 provided one lakh of rupees annually for the promotion of Indian education. It also extended the Company’s charter for another twenty years.
The Charter Act of 1833 was a significant constitutional instrument defining the scope and authority of the East India Company. The liberal and utilitarian philosophy of Bentham was made popular by the provisions of this Act. Following were the important provisions:
(i) The English East India Company ceased to be a commercial agency in India. In other words, it would function hereafter as the political agent for the Crown. (ii) The Governor-General of Fort William was hereafter called ‘the Governor- General of India’. Thus, Bentinck was the
first Governor-General of India’. (iii) A Law Member was appointed to the Governor-General’s
Council. T. B. Macaulay was the first Law Member of the Governor- General-in-Council.
(iv) The Act categorically stated ‘that no native of India, nor any natural born subject of His Majesty, should be disabled from holding any place, office, or employment, by reason of his religion, place of birth, descent or colour”. It was this enactment which laid the foundation for the Indianisation of public services. After twenty years, the Charter Act of 1853 was passed and
it was the last in the series of Charter Acts.
The Charter Act of 1853
British Parliament was called upon to renew the Charter of the Company in 1853.The Parliament had in the preceding year appointed two committees to go into the affairs of the Company and on the basis of their reports the Charter Act of 1853 was framed and passed. According to the new Act the law member was made a full member of Executive Council of the Governor General. Governor- General was given power to nominate a vice president of his council. The Act provided that the salaries of the members of the Board of Control ,its secretary and other officers would be fixed by the British Government but would be paid by the company. 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.








 

The number of the members of the courts of Directors was reduced from 24 to 18 out of which 6 were to be nominated by the crown. 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. The Charter Act of 1853 renewed the powers of the company and allowed it to retain possession of the Indian territories. The Act of 1853 marked the beginning of a Parliamentary system in India. No Indian element was associated with the Legislative Council.
 Government of India Act, 1858.
For our present purposes we need not go beyond the year 1858 when the British Crown assumed
sovereignty over India from the East India Company, and Parliament enacted the first statute for
the governance of India under the direct rule of the British Government,—the Government of
India Act, 1858 (21 & 22 Vict., c. 106). This Act was dominated by the principle of absolute imperial control without any popular participation in the administration of the country, while the subsequent history up to the making of the Constitution is one of gradual relaxation of imperial control and the evolution of responsible government. By this Act, the powers of the Crown were to be exercised by the Secretary of State for India, assisted by a Council of fifteen members (known as the Council of India). The Council was composed exclusively of people from England, some of whom were nominees of the Crown while others were the representatives of the Directors of the East India Co. The Secretary of State, who was responsible to the British Parliament, governed India through the Governor-General, assisted by an Executive Council, which consisted of high officials of the Government.
The essential features of the system2 introduced by the Act of 1858 were—
(a) The administration of the country was not only unitary but rigidly centralised. Though the
territory was divided into Provinces with a Governor or Lieutenant-Governor aided by his
Executive Council at the head of each of them, the Provincial Governments were mere agents of the Government of India and had to function under the superintendence, direction and control of the Governor-General in all matters relating to the government of the Province.2
(b) There was no separation of functions, and, all the authority for the governance of India,—
civil and military, executive and legislative,—was vested in the Governor-General in Council
who was responsible to the Secretary of State.
(c) The control of the Secretary of State over the Indian administration was absolute. The Act
vested in him the 'superintendence, direction and control of all acts, operations and concerns
which in any way related to the Government or revenues of India'. Subject to his ultimate
responsibility to the British Parliament, he wielded the Indian administration through the
Governor-General as his agent and his was the last word, whether in matters of policy or of
details.
(d) The entire machinery of administration was bureaucratic, totally unconcerned about public
opinion in India.
Indian Councils Act, 1861.
The Indian Councils Act of 1861 introduced a grain of popular element insofar as it provided that
the Governor-General's Executive which was so long composed exclusively of officials, should
include certain additional non-official members, while transacting legislative business as a
Legislative Council. But this Legislative Council was neither representative nor deliberative in
any sense. The members were nominated and their functions were confined exclusively to a
consideration of the legislative proposals placed before it by the Governor-General. It could not,
in any manner, criticise the acts of the administration or the conduct of the authorities. Even in
legislation, effective powers were reserved to the Governor-General, such as—(a) giving prior
sanction to Bills relating to certain matters, without which they could not be introduced in the
Legislative Council; (b) vetoing the Bills after they were passed or reserving them for
consideration of the Crown; (c) legislating by Ordinances which were to have the same authority
as Acts made by the Legislative Council.
Similar provisions were made by the Act of 1861 for Legislative Councils in the Provinces. But
even for initiating legislation in these Provincial Councils with respect to many matters, the prior
sanction of the Governor-General was necessary.
Indian Councils Act, 1892.
Two improvements upon the preceding state of affairs as regards the Indian and Provincial
Legislative Councils were introduced by the Indian Councils Act, 1892, namely that (a) though
the majority of official members were retained, the non-official members of the Indian
Legislative Council were henceforth to be nominated by the Bengal Chamber of Commerce and
the Provincial Legislative Councils, while the non-official members of the Provincial Councils
were to be nominated by certain local bodies such as universities, district boards, municipalities;
(b) the Councils were to have the power of discussing the annual statement of revenue and
expenditure, i.e., the Budget and of addressing questions to the Executive.
 This Act is notable for its object, which was explained by the Under-Secretary of State for India
thus: "to widen the basis and expand the functions of the Government of India, and to give further opportunities to the non-official and native elements in Indian society to take part in the work of the Government."
Indian Councils Act 1909
The Indian Councils Act 1909 is commonly known, as the Morely-Minto Reforms. It was an
Act of the Parliament of the United Kingdom that brought about a limited increase in the
involvement of Indians in the governance of British India.
John Morley, the then Secretary of State for India, and the Governor general of India Minto
believed that cracking down on terrorism in Bengal was necessary but not sufficient for restoring
stability to the British Raj after Lord Curzon’s partitioning of Bengal. They believed that a dramatic step was required to put heart into loyal elements of the Indian upper classes and the growing westernized section of the population. They produced the Indian Councils Act of 1909 (Morely –Minto reforms). These reforms did not go any significant distance towards the Indian National Congress demand for ‘the system of government obtaining in Self-Governing British Colonies’. The Act of 1909 was important for the following reasons.
(i) It effectively allowed the election of Indians to the various legislative councils in India for
the first. Previously some Indians had been appointed to legislative councils. The majorities
of the councils remained British government appointments. Moreover, the electorate was
limited to specific classes of Indian nations.
The deliberative functions of the Legislative Councils were also increased by the Act. It
gave them the opportunity to move resolutions on the Budget and any matter of public interest. An
element of election was also introduced in the Legislative Councils at the Centre.
(ii) The system of election introduced by the Act provided for separate representation for
Muslim Community. It sowed the seeds of separation which led to the partition of the
country.
The Act provides that
a) Indian Muslims be allotted reserved seats in the Muncipal and District Board, in the
Provincial Councils and in the Imperial Legislature; the number of reserved seats be in excess of their relative population (25 percent of the Indian population); and only Muslims should vote for candidates for Muslim seats (separate electorates)
(b) The number of the members of the Legislative Council at the center was increased from 16
to 60. The number of the members of the Provincial Legislatives was also increased. It was fixed
as 50 in the provinces of Bengal, Madras and Bombay, and for the rest of the provinces it
was 30. The member of the Legislative Councils, both at the Centre and in the provinces, were to be of four categories ie, ex-officio members (Governor General and the members of their
Executive Councils) nominated official members (those nominated by the Governor General
and were government officials), nominated non-official members (nominated by the
Governor General but were not government officials and elected members (elected by
different categories of Indian people)
(c) The right of separate electorate was given to the Muslims.
(d) Official members were to form the majority but in provinces non-official member would be
in majority.
(e) The members of the Legislative Councils were permitted to discuss the budgets, suggest the
amendments and even to vote on them; excluding those items that were included as nonvote
items. They were also entitled to ask supplementary questions during the legislative
proceedings.
(f) The Secretary of State for India was empowered to increase the number of the Executive
Councils of Madras and Bombay from two to four.
(g) Two Indians were nominated to the Council of the Secretary of State for Indian Affairs.
(h) The Governor General was empowered to nominate one Indian member to his Executive
Council.
Subsequently, to this, the Government of India Act 1919, as passed merely to consolidate all
the preceding Government of India Acts.
GOVERNMENT OF INDIA ACT 1919
The Indian National Congress, which established in 1885, became more active during the
first world war and started its campaign for self-government . In response to this popular demand, the British government declared its policy in 1917 through Montagu (Secretary of state) and Chelmsford (Governor General) report. This led to the enactment of an Act called Government of
India Act 1919. The main features of the Act, were as follows.
i) Introduction of ‘Dyarchy’ in the Provinces: The Act introduced an absurd system of
administration in the Provinces known as ‘Dyarchy’. The subjects of administration were
to be divided: Central and provincial. The ‘Central’ subjects were exclusively kept under
the control of Central government. The ‘provincial subjects’ were sub-divided into
‘transferred’ and ‘reserved’ subjects. The ‘transferred’ subjects assigned to the provinces
were to be administered by the ‘Governor’ with the aid of ministers, who were responsible
to the legislative councils. The ‘reserved subjects’ were to be administered by the
Governor and Executive Council, without any responsibility to the Legislative Council.
ii) Relaxation of central control over the Provinces: The rules made by the Government
of India Act of 1919 were known as ‘Devolution Rules’. It separates the subjects of
administration into two categories: Central and Provincial. The subjects which were
brought under the category ‘Central’ were subjects of all India important. The matters
relating to the administration of ‘provinces’ were classified as ‘provincial’. This was
actually a relation of control over provinces, even in legislative and financial matters. The
provinces could run the administration with the aid of revenues collected by provinces
themselves. The provincial budgets were separated from central budget. The provincial
legislature was empowered to present its own budget and levy its own taxes.
The devolution of power should not be like a ‘Federal’ distribution of powers. The provinces
got power by way of delegation from the Centre. The central legislature, retained be power to
legislate for the whole of India. The control of the ‘Governor General’ over provinces was also
retained by laying down a provincial bill which would not because the law unless it was also
assented by be Governor General. The Act empowered the Governor to reserve a bill for the
consideration of Governor General.
iii) The Indian legislature made more representative.
The Central Government, led by the Governor General continued to remain responsible only
to the British Parliament, through the Secretary of state. Nevertheless, the Indian legislature was
made more representative and bicameral. The Indian Legislative Council was transformed into a bicameral legislature existing of council of states (upper house) and Legislative Assembly (Lower house) The elections were arranged on a communal and social basis, developing the ‘Morely-Minto’ device.
The reforms of Act 1919, failed to fulfil the aspirations of the people in India and led to an
agitation by the Congress under the leadership of Gandhiji (Non –cooperation movement)
Government of India Act 1935
The non –cooperation movement led the British Government in 1927, to appoint a statutory
commission, as envisaged by the Government of Indian Act 1919. The commission was appointed to enquire into and report on the working of the Act.
The commission was headed by Sir John Simon and reported in 1930. The report was
considered by the round table conferences consisting the delegates of British government, and of
British India and the rules of Indian states. A white paper was prepared on the basis of this
conference.
The British government gave the joint select committee the task of formulating the new Act
for India. Lord Linlithgow was appointed as the president of the committee, which consisted of
members from the two houses of British parliament, representation of British India and princely
states. The bill, after proper discussion and passage in two house of British Parliament, was
enforced as the Government of India’ Act 1935, in July 1935.
The main features of the Act of 1935 were:
i) The Act promised a federation of India, comprising both the provinces and the Indian
states as units. It was optional for the Indian states to join the federation. Since a
specified number of rulers of Indian states had not signed the ‘Instruments of Accession’
the Federation envisaged by the Act of 1935, never came to being. The central
government continued to function in accordance with the 1919 Act
1. A Federation of India was promised for, comprising both provinces and states. The provisions
of the Act establishing the federal central government were not to go into operation until a
specified number of rulers of states had signed ‘Instrument of Accession’. Since, this did not
happen, the central government continued to function in accordance with the 1919 Act and
only the part of the 1935 Act dealing with the provincial governments went into operation.
2. The Governor General remained the head of the central administration and enjoyed wide
powers concerning administration, legislation and finance.
3. No finance bill could be placed in the Central Legislature without the consent of the Governor
General.
4. The Federal Legislature was to consist of two houses, the Council of State (Upper House) and
the Federal Assembly (Lower House).
5. The council of State was to consist of 260 members, out of whom 156 were to be elected from
the British India and 104 to be nominated by the rulers of princely states.
6. The Federal Assembly was to consist of 375 members; out of which 250 were to be elected by
the Legislative Assemblies of the British Indian provinces while 125 were to be nominated by
the rulers of princely states.
7. The Central Legislature had the right to pass any bill, but the bill required the approval of the
Governor General before it became Law. On the other hand, Governor General had the power
to frame ordinances.
8. The Secretary of State was not expected to interfere in matters that the Governor dealt with,
with the help of Indian Ministers.
9. The provinces were given autonomy with respect to subjects delegated to them.
10.Dyarchy, which had been established in the provinces by the Act of 1919, was to be
established at the Centre. However, it came to an end in the provinces.
11. Two new provinces Sindh and Orissa were created.
12. Reforms were introduced in N.W.F.P as were in the other provinces.
13. Separate electorates were continued as before.
14. One-third Muslim representation in the Central Legislature was guaranteed.
15. Autonomous provincial governments in 11 provinces, under ministries responsible to
legislatures, would be setup.
16. Burma and Aden were separated from India.
17.The Federal Court was established in the Centre.
18. The Reserve Bank of India was established.
Both the Indian National Congress and the Muslim League opposed the Act, but participated
in the provincial elections of winter 1936-37, conducted under stipulations of the Act. At the time of
Independence, the two dominions of India and Pakistan accepted the Act of 1935, with few
amendments, as their provisional constitution.
Cabinet Mission Plan
After the rejection of the Cripps Proposals, followed by the dynamic “Quit India Movement” various attempts were made to reconcile the Indians ‘Simla conference’ was held at the
instance of the Governor General, Lord Wavell (Wavell Plan). All these having failed, the British Cabinet sent three of its members, including Cripps, to make another attempt. The Cabinet Mission arrived in India in March 1946. The members of the mission together with Wavell, carried on long negotiations with Indian leaders on the two issues of an interim government and principles and procedures of framing a new constitution giving India freedom. The Cabinet Mission came out with a plan but the Congress and Muslim League could not reach an agreement on the future constitution. The plan rejected the Jinnah’s demand of Pakistan. Initially the long term plan envisaged in the proposal was accepted by both Congress and Muslim League, but the League withdrew its acceptance of the long-term plan and called on the Muslim to go in for the ‘Direct Action’ to achieve Pakistan.
Interim Government
The Cabinet Mission plan also contained a provision for setting up a short-term interim
government. After the failure of care-taker government a Congress dominated government under
the leadership of Nehru was sworn in on September 02, 1946. Muslim League also joined the
government on October 26, without giving up its Direct Action Programme. In July 1946, elections to the Constituent Assembly were held and the Congress and League were returned with an overwhelming majority. The League refused to attend the Cabinet Assembly which had started its functioning, from December 09, 1946.
The programme of ‘Direct Action” inaugurated by Muslim League transformed the whole of
Indian scene to communal riots on an unprecedented scale. Large scale Muslim attacks began on
the Hindus at different Muslim dominated parts of India. Thousands were killed. The widespread
riots and massacres changed the views of the Interim government led by Nehru and they had began to think in terms of two dominions.
Prime Minister Attlee who came to power in Great Britain, after IInd world war, made a
speech in the British Parliament, and fixed 1948 June as deadline for the transfer of power to
Indians, whether as a whole or in some areas or in such other way as may seen reasonable for the
best interest of the Indian people. Viceroy Wavell was replaced by Mount Batten who had given
plenipotentiary powers and charged with the task of transferring power to India. Mountbatten after discussions with the Congress leaders and convinced them that the only alternative was the partition of India. This agreement has come to be known as the ‘3rd June plan’ or “Mountbatten plan”. The 3rd June Plan of 1947 included the principles:
1) Principle of partition of India was accepted by British Government.
2) Successor governments would be given dominion status.
3) Implicit right to secede from the British common wealth
The Governor-General announced that the transfer of power would take place by August 15,
1947. This Mount Batten Plan became the basis of Indian Independence Act 1947 which ratified the British Parliament on July 18 and implemented in 15th August 1947.
The Indian Independence Act, 1947
The Prime Minister of Britain, Clement Attlee announced on 20 February 1947 that: i) The British Government would grant full self government to British India by June 1948, ii) The future of princely states would be decided after the date of final transfer is decided
and iii) The Indian Independence Act was the implementation of June 3 plan.
On the basis of Mount Batten plan (3 June Plan), the British Parliament passed an Act,
called the Indian Independence Act, 1947. The Act partitioned India into two independent
dominions of India and Pakistan. The Act received the royal ascent on 18th July, 1947 and the two dominions came into being on 15th August, 1947. The most important provisions of the Act were:
(i) The division of British India into the two new and fully sovereign dominions of India
and Pakistan, with effect from 15 August 1947.
(ii) The partition of the provinces of Bengal and Punjab between the two new countries;
(iii) The establishment of the office of Governor- General in each of the two new countries,
as representative of the Crown;
(iv) The conferral of complete legislative authority upon the respective Constituent
Assemblies of the two new countries;
(v) The termination of British sovereignity over the princely states with effect from 15
August 1947 (this was intended to encourage the various rulers to accede to one or other
of the two new countries);
The Act also made provision for the division of joint property, etc. between the two new
countries, including in particular the division of the armed forces.

Monday, 28th Apr 2014, 08:38:01 PM

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