Historical Aspect of Indian Constitution

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The Constitution of India was drawn up by a Constituent Assembly. The Assembly met for the first time on December 9, 1946. It was not a truly representative body as its members were indirectly elected by those who were themselves elected on a narrow franchise. The Assembly constituted a Drafting Committee, under the chairmanship of Dr.B.R.Ambedkar, to frame a constitution for India. Indian Constitution was adopted on November 26, 1949 and it came into effect on January 26, 1950. It is the longest written Constitution in the world containing 395 Articles, 22 Parts and 12 Schedules. During 60 years of its existence, Indian Constitution has undergone several amendments and demand to review it completely has also been raised. But, inspite of all these changes, the ‘basic structure’ of the Indian Constitution remains intact.

 Development of the Indian Constitution

British rule in India ended on 15th August 1947 and India emerged as an independent and sovereign republic. Certain features of Indian Polity or Constitution can be understood better with a brief review of the constitutional set up in the preceding periods. As modern political institutions originated and developed in India mainly during the British rule, the origin and growth of the Indian Constitution has its roots in the British period of Indian history. The British came to India in the 17th century as traders. From 1773 onwards, various Acts were passed by the British Government for the governance of India.

Acts that facilitated constitutional development during British rule

  • Regulating Act, 1773
  • Amending Act, 1781
  • Pitt’s India Act, 1784
  • Act of 1786
  • Charter Act, 1793
  • Charter Act, 1813
  • Charter Act, 1833
  • Charter Act, 1853
  • Government of India Act, 1858
  • Indian Councils Act, 1861
  • Indian Councils Act, 1892
  • Indian Councils Act, 1909
  • Government of India Act, 1919
  • Government of India Act, 1935
  • Indian Independence Act, 1947

 

MAIN PROVISIONS OF IMPORTANT ACTS PASSED IN BRITISH INDIA

Regulating Act, 1773

  • First attempt by the British Parliament to regulate the affairs of the East India Company;
  • Centralised the administration of Company’s territories in India;
  • Governor of Bengal was designated as the Governor General of Bengal and Council of 4 members was appointed for Bengal;
  • Bombay and Madras Presidencies were subordinated to Bengal Presidency;
  • Supreme Court was set up at Calcutta; and
  • Company’s servants were forbidden from accepting bribes or doing private trade. 

Amending Act, 1781:

It settled the question of jurisdiction of the Supreme Court

Pitt’s India Act, 1784

  • It was the first effective substitution of Parliamentary Control over East India Company as it transferred the Indian affairs of the Company into the hands of the British Government;
  • Abolished dual system of governance.
  • Board of Control consisting of 6 Parliamentary Commissioners was constituted to control civil, military and revenue affairs of India;
  • Court of Directors had to comply with the orders and directions of the Board;
  • Strength of Governor-General’s Council reduced to 3;
  • Control of Governor-General-in-Council on Bombay and Madras Presidency was enlarged and made more effective.

Act of 1786:

Governor-General became the Commanderin-Chief of Indian Forces.

 Charter Act, 1793

  • East India Company’s monopoly over trade was extended for 20 more years
  • Expenses and salaries of the Board of Control to be charged on Indian Revenue; and
  • Governor-General could over-ride his Council.

 Charter Act, 1813

  • East India Company was deprived of its trade monopoly in India except in tea and opium trade with China;
  • All Englishmen could trade with India subject to certain restrictions;
  • Rules and procedures were made for use of Indian revenue; and
  • A sum of Rs. 1 lakh was earmarked annually for education.

 Charter Act, 1833

  • Governor-General of Bengal became the Governor-General of India;
  • Company was asked to close its business at the earliest;
  • It put an end on Company’s trade monopoly even in tea and opium with China;
  • Government of Madras and Bombay was deprived of legislative powers;
  • A fourth member (Law Member) was added to the Council of Governor-General;
  • Government Service was thrown open to the people of India;
  • All laws made by Governor General-in- Council, henceforth came to be known as Acts and not regulations;
  • Provision was made for appointment of Law Commission for codification of laws; and
  • Slavery was abolished.

 Charter Act, 1853

  • For the first time a separate legislative machinery consisting of 12-member Legislative Council was created;
  • Law Member was made a full member of the Executive Council of the Governor- General. Six additional members were added for legislative purposes; and
  • Recruitment of Civil Services was based on open annual competitive examination.

 Government of India Act, 1858

  • Rule of company in India ended and that of the Crown began;
  • System of double government ended as both the Court of Directors as well as the Board of Control was abolished;
  • Secretary of State for India was appointed. He was assisted by a 15-member Council (India Council). He was to exercise the powers of the Crown;
  • Secretary of State was to be a member of the British Cabinet;
  • Secretary of State governed India through the Governor General;
  • Governor-General was to be called the Viceroy and was the direct representative of the Crown in India; and
  • A unitary and highly-centralised administrative structure was created. 

WHAT DO YOU UNDERSTAND BY THE TERMS ‘DIARCHY’ AND ‘DEVOLUTION RULES’?

In Indian administration, these terms were used for the first time in the Government of India Act, 1919 (Montague-Chelmsford Reforms) 

Diarchy: It meant Dual Government The Provincial subjects of administration were to be divided into two categories — “Transferred” and “Reserved”. The transferred subjects were to be administrated by the Governor with the aid of Ministers responsible to the Legislative Council. The reserved subjects were to be administered by the Governor and his Executive Council without any responsibility towards the Legislature.

Devolution Rules: Through these Rules, subjects of administration were divided into two categories — “Central” and “Provincial”. Subjects of all-India importance (like Railways, Finance) were brought under the category of Central, while matters relating to the administration of the provinces were classified as provincial.

 Indian Councils Act, 1861

  • Policy of Association of Indians in legislation started;
  • Portfolio system was introduced;
  • For legislation; Executive Council of Viceroy was enlarged by 6 to 12 members composed of half non-official members. Thus foundation of Indian Legislature was laid down;
  • Legislative powers of the Presidency Governments, abolished in 1833, were restored; and
  • Viceroy could issue ordinances in case of emergency.

 Indian Councils Act, 1892:

It was the beginning of representative system in India.

  • Though the majority of official members was 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.
  • Non-official members of the Provincial Council were to be nominated by certain local bodies such as universities, district boards, municipalities, etc.; and
  • Councils were given the power to discuss budget and to question the Executive.

 Indian Councils Act, 1909:

Also known as the Morley-Minto Reforms

  • Introduced, for the first time, an element of elections to the Legislative Councils;
  • In Provincial Legislative Councils, nonofficial members were to be in majority;And
  • This Act introduced the system of separate electorates (for Muslims).

The government of India Act, 1919:

Popularly known as Montague-Chelmsford Reforms

  • The idea of “Responsible Government” was stressed;
  • Office of the High Commissioner of India was created in London;
  • Indian Legislature became “bicameral” for the first time;
  • Communal representation was extended to Sikhs;
  • Secretary of State for India was now to be paid from British revenue; and
  • Diarchy was introduced in provinces by dividing subjects of administration between official members and elected members.

 Government of India Act, 1935

  • It provided for the establishment of an All-India Federation consisting of the British Provinces and the Princely States. The joining of Princely States was voluntary. The Federation never came into being.
  • Diarchy was introduced at the Centre. Diarchy in Provinces was replaced by ‘Provincial Autonomy’ and they were granted separate legal identity. Responsible governments were set up in States under Prime (Chief) Ministers elected by Legislatures;
  • Governor was given special responsibilities (or discretion) in several matters;
  • Three-fold division of powers was done- Federal, Provincial and Concurrent Lists. Residuary powers were to be with the Governor-General;
  • The India Council of Secretary of State for India was abolished;
  • Principle of separate electorate was extended further to include Anglo-Indians, Indian Christians and Europeans also; and
  • A Federal Court was to be constituted
  • with a Chief Justice and 10 other Judges. This was set up in 1937.

 Indian Independence Act, 1947:

This Act did not lay down any provision for the administration of India but merely stated that from the “appointed date (Aug. 15, 1947), in place of India as defined in the Government of India Act, 1935, there would be two independent Dominions to be known as “India” and Pakistan”, and the Constituent Assembly of each Dominion would have unlimited powers to frame and adopt any Constitution, and to repeal any Act of the British Parliament.”