Writer's View Journal
ISSN: 2456-3579
Vol. 6 No. 1 Varsh Pratipada
Vikram Sambat 2078, Year 2021, Special Issue-I
(An Interdisciplinary, Bilingual, Bi-annual, A peer Review, indexed and Open Accesses International Research Journal)
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Understanding India’s Constitutional Development: From British Enactments to Post-independence
Abstract
The Constitution of a country is regarded as the fundamental law of the land which lays down a broader canvass to makes laws, rules and regulations for organizing the national life at both the collective and individual levels. It’s often argued that a Constitution is tailored in such a way that it succeeds to define how a country examines its past, determines its present and foresees its future. Unlike erstwhile Government of India Act, 1935, the present constitution adopted and enacted by the Constituent Assembly declared India as a Federal Democratic Socialist Secular Republic. The Constitution of India, the precursor of the new Indian renaissance, entered into force on January 26, 1950. The article delves to study the evolution and historical development of constitution in India.
Keywords:
Constitution, Historical background, India, British India
1. Introduction
The Constitution of India and the basic
structures it envisaged have allowed the democratic credentials to thrive on
the sovereign soil of India. One of such basic structures has been the
principle of federalism, which plays a stellar role in the consolidation of Indian
democracy. In contrast to the British India regime, the current constitution
establishes civil supremacy in the affairs of the state, giving life to the
Abraham Lincoln’s memorable phrase: democracy is for the people, by the people
and of the people.
The Constitution of India under Article
79 envisages for the Parliament of Republic, comprising House of People (i.e.,
Lok Sabha), Upper House (i.e., Rajya Sabha) and the President of India. The
President of India does not sit in Parliament as a member but he is essential
component of Parliament. Unlike United States, the Council of Ministers is collectively
accountable to the Parliament in India. However, the members of Council of
Ministers are personally accountable to the President in United States.
To put it simply, “Though President is
not a member of either House of parliament yet, like the British Crown, he is
an integral part of the Parliament and performs certain functions relating to
its proceedings. The President of America is not the integral part of Legislature.
In India, the President summons two Houses of Parliament, dissolves the House
of people and gives assent to Bills. The
keystone of the British Constitution is the doctrine of ‘sovereignty’ or
‘supremacy’ of parliament. In other words, the Parliament has the ultimate
right to make or unmake any law whatever. “The Indian Parliament differs from
its British counterpart in a substantial manner. Politically speaking, the
Indian and British parliaments are both subject to similar restraints as both
have parliamentary form of government. But, legally speaking, whereas the power
of the British Parliament is undefined, that of the Indian parliament is
defined, fettered and restrained. India’s Constitution is written; it is the
fundamental law of the land; its provisions are enforceable by the courts and
it cannot be changed in the ordinary legislative process. The Indian parliament
has therefore to function within the constraints of Constitution from which its
legislative powers emanate.”
Moreover, “the Indian parliament is the
creature of the Constitution. Therefore, a parliamentary law to be valid must
in all conform in all respects with the Constitution. It is for the courts to
decide whether an enactment is constitutional or not and they have the power to
declare a parliamentary enactment void if it is inconsistent with a provision
of Constitution. The courts would refuse to give effects to any
unconstitutional law.”
Still, the pre-constitutional period
largely departs from the current position and gives a depressing reality. For
decades, Indians had to live under the rule of British colony for a no good
reason. In 1600 AD, the British came to the Indian subcontinent to trade at the
port of Surat, which is currently located in the state of Gujarat. In the
1750s, the East India Company began to intervene in political matters of India.
When Robert Clive, an officer of the company, defeated the Bengal Nawab forces
at the Battle of Plassey, the company saw an increase in its wealth and a
change from a trading company to a dominant company in 1757. The British came
to India in 1600 as traders, under the garb of East India Company, which had
the exclusive right of trading in India under a charter granted by Queen
Elizabeth-I. In 1765, the Company obtained the 'diwani' (rights over
revenue and civil justice) of Bengal, Bihar and Orissa. This gave them an
opportunity to emerge as a territorial power.
In 1858, in the wake of the ‘sepoy
mutiny’, the British Crown assumed direct responsibility for the governance
of India. This rule continued until India was granted independence on 15
August, 1947.
With the arrival of independence, India was in dire need of adopting a
constitution, declaring India as a sovereign, democratic republic. A
Constituent Assembly was formed for this purpose in 1946 and eventually, on 26
January, 1950, the Constitution of India came into being. Although the arbitrary and undemocratic rule
of British Raj was like bitter grapes, some of their colonial laws were of
worthwhile consideration. Dr BR Ambedkar, the Chief Architect of Indian
constitution, was of the view that about half of the provisions contained under
the draft constitution (that is, current constitution) has been copied from the
Government of India Act, 1935 and that the rest of it has been borrowed from
the constitutions of other countries. He further said that there is nothing to
be ashamed of in borrowing. The new thing in the constitution is that it
contains provisions to accommodate the needs and aspirations of the people.
In fact, certain events in British rule
established the legal framework for the organization and operation of the government
and administrative agencies of British India. These events have greatly
affected our constitution and government. The main focus of the paper is to shade
light on the constitutional development after Indian Council Act, 1909.
2.
Historical
Development
The historical
background and evolution of the Indian Constitution can be studied under two
broad heads:
- The
Company Rule (1773 – 1858)
- The
Crown Rule (1858 – 1947).
2.1 Scenario
before Crown Rule
On December 31, 1600, Queen Elizabeth
enacted a charter for a group of English Merchants, incorporating them into a
body corporate to run trade under the name of Governor and Company of Merchants
of London. Then, the Company of Merchants of London established a factory at
Surat after obtaining the approval of the then Mughal Emperor Jahangir. This
led to the establishment of many factories at different parts of India. The
death of Mughal Emperor Aurangzeb in 1707 gave a jolt to the Mughal Empire.
After sensing that the Mughal Empire was losing their ground, the British
Company started establishing territorial supremacy over different parts of
India.
In 1775, Robert Clive defeated
Suraj-Ud-Dowla in the battle of Plessy. The saga of defeat does not end here.
In 1764, English forces under the leadership of Major Munro defeated the Mir
Khasim and Nawab Vazir of Oudh who had jointly fought against the English. This
led to the military conquest of Bengal and Bihar.
The grant of Dewani by the Moghul
Emperor Shah Alam in 1765, which provided a de jure basis for the
exercise of British authority in Bengal, Bihar and Orissa, could be said to be
the beginning of second period (1765-1858).
The company, which operated their business under the garb of trade and commerce
for over a century and a half, started attributing territorial power in the
idle of 18th century. In 1773, the Regulating Act, which was
associated with the name of Lord North, provided a detailed provision for the
administration of the Company’s Indian domains.
Then, Pitt’s East India Company Act,
1784, which created a board of six commissioners to exercise “superintendence
and control over all the British territorial possessions in the East Indies,
and over the affairs of the united company of merchants trading thereto,” was
passed to bring a system of double government.
The 1784 Act was modified in points of
detail by successive charter acts of 1793, 1813 and 1853 continued to operate
until the year of 1858. Subsequently,
the British parliament enacted Government of India Act of August 1858 after the
mutiny of 1857. This Act vested powers over Indian territories to the Crown
which was governed by East India Company.
2.2 Dawn
of Crown Rule
The British government took over the
governance of India from East India Company in 1858, after unsuccessful
attempts of Indians to overthrow that regime in 1857. Up to this time, the
company was governing its possessions in India at the central level through the
Governor General and his council and at the Provincial level through Governor
and his council.
Then, Indian Councils Act, 1861 was brought into effect but this law did not
provide any space to Indians. However, the Indian Councils Act, 1892 provided
arrangement for the inclusion of Indians in the Legislative Councils but not in
the Executive Councils.
Nevertheless, the Government of India
Act of 1858 was the first statute passed by parliament which is marked as the
beginning of the evolution of the Indian Constitution. For
most of the Nineteenth Century, India was ruled by the British. India was
considered the jewel in the crown of the British Empire. Queen Victoria had
been made Empress of India and the British had a major military presence in
India. In
1885, educated middle class nationals had founded the Indian
National Congress (INC). Their aim was to get a much greater say in
the way India was governed. In response to this development, the Morley-Minto reforms were
introduced in 1909. Morley was the Secretary of State for India and Lord Morley
was Viceroy of India. Their reforms lead to the creation of an office of
governor in each province in India and Indian nationals were allowed to sit in
the councils which advised these governors.
Indian Councils Act of 1909, also known
as the Morley-Minto Reforms, changed the name of the Central Legislative
Council to the Imperial Legislative Council. The act introduced a system of
Communal representation for Muslims by accepting the concept of ‘separate
electorate.’ It was the first attempt to introduce a representative and popular
element in Indian Administration. Lord Minto came to be known as the ‘Father of
communal electorate’.
In addition to this, in 1909, the Minto-Morley
Reforms was passed to extend the powers of the Legislative Councils, though the
composition or powers of the Executive Councils were not changed. This Act
brought significant changes that include, hike in number of legislative members
in the central legislature from 16 to 60. The memberships of legislatures of
Madras, Bombay, Bengal, UP and Eastern Bengal were raised to 50 and 30 in case
of Punjab and Burma. Moreover, the power of legislature was enlarged for
serious discussions in matters relating to budget, right of any member to bring
resolution for alteration in budget; and right to raise questions in
proceedings, except in the matters concerning to military, political and
provincial affairs, foreign relations or sub-judice cases.
The Act was introduced with an objective
to ensure the accommodation of Indians in Governor General’s Council but in
reality the same became a distant dream. However, the Secretary of State in
1907 had provided two berths to two Indians in his councils, one each at
Governor’s council at Bombay and Madras.
The Act 1909 failed to survive for long
for some of the obvious reasons. It provided power on each legislator to move a
resolution for alteration of the budget but it did not made the president of
the legislative council bound to pay heed to such resolution. Similarly, the
unfettered power and control over law-making and finance remained with British.
The provincial governments were not provided with autonomy as their power was
subject to the (discretionary) power of Secretary of State of India. The Act
did not host any scheme to address the concerns of Indians.
3. Toward
British India’s constitutional documents
On August 20, 1917, Montagu, the then
Secretary of State for India, made a declaration in the House of Commons that
the policy of His Majesty was to increase association of Indians in every
branch of administration and for the self-governance institutions with a view
to progressively realize the responsible government in India as an integral
part of British Empire. After this historic announcement, Montagu and Lord
Chemsford, the then Viceroy made a visit to India and submitted Montagu-Chelmsford
Report. On the basis of this report, a Bill, which was examined by the Joint
Select Committee, was introduced in the House that took the shape of Act in
1919, that is, the Government of India Act, 1919. The Act was the first
comprehensive constitutional document of India. This
Act established the position of a High Commission with a sitting in London to
represent India in England.
As per the Act, the superintendence,
direction and control of the government of India were vested in the
Governor-General-in-Council. The Governor General had the power to overturn the
majority decisions of the council if he had a reason to believe that any of
such a proposal could affect the safety, tranquility or interest of British
India on its implementation. This Act too, like the previous Acts, did not
provide for the mandatory inclusion of any Indian in the council. Also, the
executive was not responsible to the legislature.
The Central legislature consisted of
Governor general and two Houses, namely Council of States and the Legislative
Assembly. A Bill, subject to the satisfaction of Governor General, could be
introduced in either House. The Governor General had power to prevent any Bill
from tabling in the House on the ground of being inconsistent to the interest
of British India. The Governor General had the power to withhold the assent on
any Bill and reserve the Bill for seeking further assent of His Majesty.
This way, it shows that the executive
was not only unaccountable to the House but was also bestowed with the power to
surpass the legislature. However, the concept of provincial autonomy was given life.
The Presidencies of Bengal, Bombay and Madras and the provinces of Assam,
Bihar, and Orissa, Punjab and UP declared as the Governor’s provinces, while
the rest of the territory was put under Lt. Governor as in case of Burma or
under a Chief Commission as in the case of Delhi, Coorg etc. The Governors and
Councilors were appointed by His Majesty of England. The Ministers were
appointed by Governor from amongst persons who were neither member of his
council, nor other officials. They held the office during the pleasure of
Governor and required to be elected members of state legislatures, if not at
the time of appointment then within six months of such appointment. Ministers
were not answerable to the legislature.
The provincial legislatures, called
Legislative Councils, comprised of members of Executive Council and such other
elected or nominated members. The members of the Council saw 70 per cent of
elected members and not more than 20 percent to be from officials. The elected
members were represented from various communities according to fixed quota. The
term of the council was of three years unless dissolved earlier or extended by
one year by Governor.
The Legislative Council had power to legislate
on the wide matters, including that of finance. A Bill rejected by the council
could be passed by the Governor. Every Bill passed by legislature was supposed
to receive assent of Governor and then assent of Governor General to become a
law. Also, the Bill so assented by the Governor and Governor General could be
disallowed by the King.
In 1920, Gandhi announced that any
constitution of India should not be a gift of the British but must be the
product of Indian people enacted by the representatives elected by the people.
The Congress Party had boycotted the provincial elections.
3.1 An
appraisal of Government of India Act, 1935
In 1924, Reforms Inquiry Committee under
the Chair of Sir Alexander Muddiman was appointed to suggest reformations in
the Act. The majority of the committee felt the need of ensuring fair trial,
while the minority proposed for the formation of Royal Commission to suggest
constitutional reforms.
On November 8, 1927, Royal Commission
known as Simon Commission was formed which suggested that the changes regarding
the federal constitution or the other would be discussed among the people after
Indian princes join federation.
In order to bring reformation in
constitution, three round-table conferences were held; out of which two failed
but one produced a white paper suggesting the formation of federation with
autonomous provinces and for the creation of responsible government at the
centre and provinces.
Then, in November 1934, a Joint Select
Committee was formed under Chair of Marquess Linlithgow, which submitted
recommendations and based on their recommendations, the Government of India,
1935 was adopted and it received Royal assent on August 2, 1935.
The Government of India Act, 1935
divided the country into two parts—the Governor’s Provinces and the Indian
states. The Governor’s provinces were bound to be the member of the federation,
while the Indian states had freedom to become such members by executing
instrument of accession. The
Act, 1935 sought to change the character of government from unitary to federal.
The central government had large control
over the provinces. The executive comprised of Governor General and a Council
of Ministers. The Governor General had to act on the aid and advice of the
Council of Ministers, except in the matters of external affairs, defense and
ecclesiastical affairs, administration of tribal areas or matters which were under
the responsibility of Governor General. The Governor General had the power to
legislate an ordinance and an Act. He could assume all or any powers of federal
authorities. In case of Governor’s provinces, he was Governor General and with
respect to the Indian states, he was representative of the England’s crown.
The federal legislature was composed of
the King, represented by the Governor General, the council of state and the
legislative assembly. The council of state consisted of 156 representatives of
British India and not more than 104 representatives of Indian states. The
Legislative Assembly was comprised of a maximum 125 representatives of Indian
states nominated by the rulers of states and 250 representatives of British
India elected by the provincial assemblies. The council of states was a
permanent House with one-third of its members retiring every third year. In
this legal framework, the Governor General had huge powers on legislating
business.
The Government of India Act, 1935 had a
provision for the Federal Court established at Delhi. It was comprised of Chief
Justice and six other judges who were appointed by a warrant under Royal Sign
Manual and who held the office until the age of 65 or removed earlier. The
Federal Court had original, appellate and advisory jurisdiction. An appeal
against the decision of Federal Court lied before the Privy Council.
The provincial executive consisted of
the Governor and his council of Ministers. Like Governor General, Governor had
the power to make laws under the subjects of his jurisdiction. He was not bound
to act on the advice of council of Ministers.
The composition of the provincial
legislature varied from the province to province. Out of 11 provinces, there
were bicameral legislatures in six and unicameral in five. The duration of the
Legislative Assembly, the lower House at provinces, was of five years; while in
case of Legislative Council, upper House at provinces, one-third members
renewed at every third year.
3.2 Constitutional
development after 1935
In October 1940, the Viceroy announced
that the coming into operation of federal part of constitution would be
indefinitely postponed. In the same year, Muslim League passed its “Pakistan
Resolution” at Lahore demanding the setting up of a separate sovereign Muslim
state consisting of Muslim dominated provinces of India. In 1942, Cripps
Mission was constituted under the chair of Sir Stanford Cripps who had proposed
for constituting an Indian Union of Independent Dominion under British
Commonwealth. It moved many proposals
including the election of members by Electoral College for the making of
constitution.
The Congress party agreed to cooperate
if a purely national cabinet could be appointed at the centre. However, Muslim Leagues rejected the
proposal. Ultimately, Cripps Mission failed. Later, Indian Congress Committee
passed the famous “Quit India” resolution demanding complete freedom from
British India.
At this backdrop, its comprehensible
that how Indian Congress favored Cripps Mission and later raised the agenda of
complete freedom after the failure of Cripps Mission. It shows their greed of
power and smartness in taking U-turn for the purpose of safe landing in
politics.
In 1945, Lord Wavell, the then Viceroy
of India, announced his proposals on radio “to ease the present political
situation and to advance India towards her goal of full self-government.” Then,
a cabinet Mission consisting of then Secretary of State for India Lord Pethick
Lawrence, Sir Stanford Cripps and AV Alexander visited India on March 24, 1946
and made proposals including that of establishment of union of India consisting
of the provinces and Indian states having the power to deal with subjects of
defense, foreign affairs and communication with ancillary powers to raise
finance for these subjects. The proposal also included other matters, like executive
and legislature consisting of representatives of British India and of Indian
states; residual powers with provinces; provincial legislature and executive;
or Constituent Assembly at New Delhi consisting of all representatives for
adopting a constitution.
On July 27, 1946, Muslim League which
had accepted the proposal of Cabinet Mission earlier on June 6, 1946, reiterated
its demand for the creation of sovereign Pakistan and they decided to go for
“direct action” and to observe August 16, 1946 as “Direct Action Day”.
The effect of all this was violence in
the country and non-cooperation of Muslim League in the Constituent Assembly
which held its first session on December 9, 1946. Meanwhile, a national government under the
leadership of Jawaharlal Nehru was formed on September 2, 1946. The Government
was not supported by Muslim League, though they sent their representatives in
the government on October 26, 1946. It shows that the Muslim League had
interest in power sharing even under adverse situations or situations contrary
to the party line.
3.3 Mandates under 1947 Independence Act
In March 1947, Lord Mount Batten became
Viceroy and on June 3, 1947 issued a statement that partition was the only
solution to solve the existing problem. Finally, Mount Batten plan was given a
shape and then Indian Independence Act, 1947 was enacted.
The Indian Independence Act, 1947 was
passed by the British Parliament within less than a fortnight and got Royal
assent on July 18, 1947. The Act provisioned for the creation of two
Independent Dominions, India and Pakistan where Governor General appointed by
King would hold an office at each dominion. It set August 15, 1947 as the date
of establishment of Independent dominions of India and Pakistan. It provisioned
the legislatures of two dominions would have sovereignty over enacting laws and
the laws made by them would not be declared void in case of being inconsistent
to the laws of England. The Act came into operation on August 15, 1947, paving
the ways for making an end to 182 years old British Rule and Lord Mountbatten
himself was worn-in as the first Governor General of free-India.
4. Framing
of the Constitution of India
Interestingly, the Constituent Assembly
had convened its business much before the adoption of Indian Independence Act,
1947. The first sitting of the Constituent Assembly took place on December 9,
1946. The Constituent Assembly was a sovereign body formed in 1946 by British
to draft a constitution suiting the normative structure of India. Though the meeting was boycotted by the
Muslim League, the members had reached to an understanding over the business
and the election of the Interim President of the Assembly.
On August 29, 1947, a Drafting Committee
was formed under the chairmanship of DR BR Ambedkar which prepared a draft
constitution that was put before the Constituent Assembly on February 21,
1948. After a deliberate discussion over
the draft, members to the Assembly proposed 7635 amendments and 2473 Amendment
Resolutions were discussed. The members agreed to borrow scores of provisions
from erstwhile Government of India Act, 1935 as well. The provisions like
federal scheme, office of governor, judiciary, Public Service Commission,
emergency provisions, or administrative details were borrowed from the
Government of India Act, 1935.
An Objective Resolution was moved by the
Jawaharlal Nehru which prescribed the objectives of the constitution to be
adopted and enacted by the Assembly. Sir BN Rao was appointed as the
constitutional advisor to the Constituent Assembly. His main job was to suggest
the Assembly to adopt best international practices under the constitution. It
took 2 years 11 months 18 days to enact the Constitution of India.
On November 26, 1949, the Constitution
was certified by the President of the Constituent Assembly Dr Rajendra Prasad
and was declared as passed. While the provisions relating to citizenship,
elections, provisional parliament, temporary and transitional provisions were
given immediate effect, the rest of the provisions of the Constitution entered
into force on January 26, 1950 and this date is taken as the date of
commencement of the Constitution of India which is the supreme law of land in
the world’s largest democracy. The Constitution which originally contained 8
schedules and 395 Articles, presently it hosts 395 Articles (total number 444),
22 Parts and 12 Schedules.
The Constitution of India begins with a
preamble which declares India to be sovereign, socialist, secular, democratic
republic. The terms socialist, secular and integrity were added in the preamble
by virtue of 42nd amendment to the constitution of 1976. KM Munshi,
a Constituent Assembly member, was of the opinion that the preamble reflected
the change that had come over the country as a result of partition and
integration of the Indian states. To a matter of pride and honor, the
Constitution of India stands as one of the world’s most progressive
constitutional documents that has rightly succeeded to unite over 1.38 billion
people in a bond of trust and tranquility.
5. Conclusion
Prior to the enactment of Constitution
of India, the people and the affairs of India were governed under the
Government of India Act, 1935, which became effective in 1937. The Act, 1935
was enacted by the British government and correspondingly, it ensured the
sovereignty of England in the affairs of India. The Act made a significant
change in the constitutional affairs. It adopted federal character. The Indian
Federation consisted of provinces in which British India was divided and the
States under the native princes.
In post-independence regime, India was
in dire need of adopting a Constitution for the people, ensuring the rights,
freedoms and complete sovereignty. The Constituent Assembly formed much before
the independence was assigned to sketch a constitution for the Republic.
Finally, the Constitution of India came into being on January 26, 1950 which is
regarded as the date of commencement of Indian constitution. The Indian
constitution is pregnant with democratic principles which have potential to
help India thrive on the path of sovereign democracy, prosperity and
tranquility. The federal democracy, independent judiciary, non-discrimination
at private or public life, civil supremacy, or judicial review is hailed as the
basic structures of the constitution. In
doing so, the constitution leaves no room for the revival of any colonial,
unruly or undemocratic forces, like that of pre-independence era.
Adopting a nation’s Constitution is a
matter of pride for every country and the people living therein. The
ratification of the 1950 Constitution is a sign that the country was geared-up
for consolidating the agendas of different political movements happened to oust
the British Empire. It led to the overthrowing of a long-stayed British Raj. Under
the new Constitution, India’s federal structure is merited with a development
that divided the country into provinces, with clear lists of legislative powers
for the central and provincial governments.
*****
Asst. Professor, Department of Law, SRT Campus, Tehri, a constituent campus of
HNB Garhwal University
