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Historical Background of Constitution

Historical background of the constitution involves the study of various acts passed by British from the Regulating Act, 1773 to Indian Independence Act, 1947.

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Why are we interested in the historical background of the constitution ?

Various provisions of the constitution as it was adopted on 26th of November 1949 were directly taken from the pre-independence acts passed by British.  The structural part of the Constitution is, to a large extent, has been derived from the Government of India Act of 1935. Many important provisions like the Federal Scheme, Governors and their powers, Judiciary, Emergency Powers, the Public Service Commissions etc. are drawn from this Act.

Hence, having a good overview of pre-independence acts will prepare a good base of knowledge for us which will further help in understanding the various provisions of the constitution.

Amending Act of 1781

To rectify the defects of the Regulating Act of 1773, the British Parliament passed the Amending Act of 1781. It’s important provisions of the Act were:

  1. It exempted the Governor-General and the Council from the jurisdiction of the Supreme Court for the acts done by them in their official capacity. 
  2. It exempted the servants of the company from the jurisdiction of the Supreme Court for their official actions.
  3. It excluded the revenue matters and the matters arising in the collection of revenue from the jurisdiction of the Supreme Court.
  4. It provided that the Supreme Court was to have jurisdiction over all the inhabitants of Culcutta even for the personal law matters.

Pitt’s India Act, 1784

Under this act, Company’s territories in India were for the first time called the ‘British possessions in India’. Important provisions of the Act were: 

  1. The Pitts India act distinguished between the commercial and political functions of the Company.
  2. It allowed the Court of Directors to manage the commercial affairs of the company.
  3. It created a new body called the Board of Control to manage the political affairs. Thus, it established a system of dual(double) government.

Charter Act of 1793

Important provisions of the Act were: 

  1. It gave the Governor-General more powers and control over the governments of the subordinate Presidencies of Bombay and Madras. 
  2. It extended the trade monopoly of the Company in India for another period of twenty years. 
  3. It laid down that the members of the Board of Control and their staff were, henceforth, to be paid out of the Indian revenues (A classic example of drain of wealth).

Charter Act of 1813

Important provisions of the Act were:

  1. It abolished the trade monopoly of the company in India. The Indian trade was thrown open to all British merchants except trade in tea and trade with China where monopoly still continued.
  2. It allowed the Christian missionaries entry to India to profess and propagate Christianity.
  3. It provided for one lakh of rupees annually for the promotion of Indian education.

Charter Act of 1833

The Charter Act of 1833 was a significant constitutional instrument defining the scope and authority of the East India Company.

Important provisions of the Act were: 

  1. 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.
  2. It made the Governor-General of Bengal as the Governor-General of India and gave him all civil and military powers. Lord William Bentick was the first Governor-General of India.  
  3. It deprived the Governor of Bombay and Madras of their legislative powers. The Governor-General of India was given exclusive legislative powers for the entire British India.(The process of centralization that stared with the Regulating act of 1773 reached to zenith under this act. )

It transformed East India Company from a commercial body to a purely administrative body.

Charter Act of 1853

Important provisions of the Act were: 

  1. It separated the legislative and executive functions of the Governor-General’s council. 
  2. It created a separate Governor-General’s legislative council having six new members. This council later came to be known as the Indian Central Legislative Council.
  3.  It also introduced local representation for the first time → Of the six members of the legislative council, four were appointed by the provincial governments of Bombay, Madras, Bengal and Agra.
  4. This council worked as a mini parliament following the same procedure as the British Parliament. 

The Charter Act of 1853 introduced an Open competition system for the recruitment of civil servants which was open to Indians also. Accordingly, the Macaulay Committee on the Indian Civil Service was appointed in 1854.

Satyendra Nath Tagore was the first Indian to join the civil services.

Government of India Act of 1858

The aggressive and exploitative policies of the East India Company in India led to resentment among the aristocrats, ruling class and peasantry in India, which resulted in the revolt of 1857.

In response to this, the Government of India Act of 1858 (also known as the Act for the Good Governance of India) was enacted by the British parliament.

This act abolished the East India Company, and transferred all the powers to the British Crown. India was to be governed by and in the name of crown through Viceroy, who would be the representative of the crown in India. 

Important provisions of the Act were:

  1.  The designation of Governor General of India was changed to Viceroy. Thus, Governor General Lord Canning became the first Viceroy of India
  2. The Board of Control and Court of directors were abolished transferring all their powers to British Crown.Hence, It ended the system of double Government.
  3. A new office ‘secretary of state was created. He was a member of the British Cabinet and was ultimately responsible to the British Parliament.
  4. A 15-member council of India was created to assist the Secretary of State for India.

Indian Councils Act of 1861

The Indian Councils Act of 1861 is an important landmark in the constitutional history of India.

It was the first step to associate Indians to the legislative process.

Important provisions of the Act were:

  1. The act provided that the viceroy should nominate some Indians as non-official members in legislative council. In pursuance of this, Lord Canning nominated three Indians to his legislative council – the Raja of Benaras, the Maharaja of Patiala and Sir Dinkar Rao in 1962.
  2. This act gave recognition to the portfolio system introduced by Lord Canning in 1859. . (Portfolio system means placing a member in charge of a specific department ).
  3. The legislative powers of Madras and Bombay presidencies were restored(With this began the process of decentralization).
  4. It provided for the establishment of legislative councils for Bengal, North-Western Frontier Province (NWFP) and Punjab.
  5. Viceroy was empowered to issue ordinances during an emergency.

Indian Councils Act of 1892

The Indian Councils Act 1892 was an Act of British Parliament that introduced various amendments to the composition and function of legislative councils in British India. 

  1. The act made an indirect provision for election by adding the provision of nomination of some non-official members based on the recommendation of certain bodies. Hence, This act marked the beginning of representative form of Government in India.
  2. This act also increased the number of additional (non-official) members in both Central and provincial legislative councils.
    • In the Central Legislative Council, some members were to be nominated by the viceroy on the recommendation of the provincial legislative councils and the Bengal Chamber of Commerce.
    • In the provincial legislative councils, some members were to be nominated by the Governors on the recommendation of the district boards, municipalities, trade associations, universities and zamindars.
  3. This act also devolved more power to legislative councils (For example, power of discussing the budget (without right to vote on it) and addressing questions to the executive ( without right to ask supplementary questions) )

The Indian National Congress (INC) was formed in 1885. In the initial years, one of the major demands of Congress was the reform of the legislative councils.

Indian Councils Act 1909

The Indian Councils Act 1909 also known as Morley-Minto Reforms (after the Secretary of State for India John Morley and the Viceroy of India, Lord  Minto)  was passed by British Parliament in 1909 in an attempt to widen the scope of legislative councils and to increase the participation of Indians in governance.

Important provisions of the Act were:

  1. The act enlarged the size of the legislative council both at Central and Provincial level. The number of members in the Central Legislative Council was raised from 16 to 60. The number in the Provincial legislative councils was not uniform.
  2. It increased the functions of the legislative councils at both the levels. It empowered the members to discuss the budget and move resolutions before it was approved finally. Members were also given rights to ask supplementary questions and move resolutions.
  3. In the Central legislative council, the official majority was retained and continued however the provincial legislative councils were allowed to have non official majority.
  4. This act for the first time allowed the association of Indians with the executive council of the Viceroy. Satyendra Prasad Sinha became the first Indian to join the Viceroy’s executive council as the Law Member.
  5. It introduced a system of ‘separate electorate’ for Muslim community. Under this, the Muslim members were to be elected only by Muslim voters.  Separate constituencies were marked for the Muslims and only Muslim community members were given the right to elect their representatives in those constituencies .

The separate electorate for Muslims had a long lasting impact on India’s polity. It recognized the Muslim community as a separate section of the India and triggered the cancer of Hindu-Muslim disharmony which ultimately culminated in the partition.

Thus, the Act led to the legalization of communalism and Lord Minto came to be known as the Father of Communal Electorate.

Government of India Act of 1919

Government of India Act 1919 was passed by British Parliament to further expand the participation of Indians in the Government of India. Since the act was based on the recommendations of a report by Edwin Montague (Secretary of State for India) and Lord Chelmsford (Viceroy), it is also called Montagu-Chelmsford Reforms or Mont-Ford Reforms.

Important provisions of the Act were:

  1. The size of the provincial legislative assemblies was increased. Now about 70% of the members were elected. By providing separate electorates for Sikhs, Indian Christians, Anglo-Indians and Europeans, This act extended and consolidated the communal representation. 
  2. It granted franchise to a limited number of people on the basis of property, tax or education which did not extend to the common man.
  3. It relaxed the central control over the provinces by separating the central and provincial subjects. The central and provincial legislatures were authorized to make laws on their respective list of subjects. 
  4. 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’(double rule).  Please note dyarchy was introduced only for provinces. 
  5. It also separated provincial budgets from the Central budget and authorized the provincial legislatures to enact their own budgets.
  6. 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 the Houses were chosen by direct election. For the first time, elections were known to the people and it created political consciousness among the people.
  7. It required that the three of the six members of the Viceroy’s executive Council (other than the Commander-in-Chief) were to be Indian.
  8. The act provided for the establishment of a Public Service Commission in India for the first time.
  9. It created a new office of the High Commissioner for India in London and transferred to him some of the functions which were earlier performed by the Secretary of State.

This act also made a provision that a statutory commission would be set up at the end of 10 years after the act was passed which shall inquire into the working into the system of the government. Under this provision, The a seven-member statutory commission under the chairmanship of Sir John Simon was constituted in 1927 .

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