Constitutional Developments in India
Though the Constitution of India was framed by the Constituents Assembly between November 1946 and November 1949, the spirit of constitutionalism tad already gained ground among the Indian populace due to various constitutional experiments made by the British for over a period of nearly 200 years. The history of constitutional developments in India can be traced back to the Regulating Act of 1773, which for the first time made provision for the post of Governor-General in India. Since then a number of constitutional experiments were introduced aiming at streamlining the Indian Administration However, the 1858 serves as a watershed year when the Indian Administration came under the direct rule of the British crown and the centralization of administration was at its pinnacle. Thus the period of British constitutional experiments in India can be divided into two phases:
A. Constitutional experiments during the rule of the East India Company (1773 - 1857)
B.Constitutional experiments under the British Crown (1857 - 1947)
Constitutional experiments during the rule of the East India Co. (1773-1857)
During this period various constitutional experiments were introduced by the British which were aimed at controlling the activities of the Company on one hand, and streamlining the Indian administration on the other. Following were the major Acts through which various constitutional experiments were made:
The Regulating Act of 1773 laid the foundation of a unitary type of government in British India. And, it was also the beginning of the parliamentary control over the government of the Company. Through this Act the presidencies of Bombay and Madras were made subordinate to the presidency of Bengal, and the Governor of Bengal was designated as the Governor-General of Bengal. Further, a Supreme Court was a\so established at Fort William through this Act.
The Pitt's India Act of 1784 established Board of Control and the Dept, of Indian Affairs in England to control the Company. Under this Act, the company's territories in India were called" the British possessions in India".
The Charter Act of 1793 empowered the Governor General to override the decisions of the Councilors. The Act further enlarged the power of the Governor-General-in- India over the subordinate Presidencies of Madras and Bombay. It also provided that the members of the Home Govt. were in future to be paid salaries from the Indian revenues and not from British Exchequer.
The Charter Act of 1813 abolished the monopoly of the company's Indian trade and threw it open to all British subjects under certain regulations. However its monopoly of trade with China and trade in tea was retained. The Act allowed the Christian missionaries to operate in India. The Act also enlarged the powers of the Board of control considerably. It also laid down that the Company should spend one Lakh rupees every year on the education of Indians in the British territories of India.
The period between the Charter Act of 1813 and the Charter of 1833 witnessed great changes in England due to the Industrial Revolution. The Industrial Revolution brought prosperity and also triggered new spirit of liberal principles.
The Charter Act of 1833 made the Governor-General of Bengal the Governor-General of India. The Governor-General-in-Council was given the power to superintend, control and direct all civil and military affairs of the company. Further, Bombay, Madras and other territories were placed under the complete control of the Governor-General- in-Council. A law member was also added to the Governor-General's Council* for professional advice on law-making. Besides, a Law Commission was constituted with the purpose of consolidating, codifying and improving Indian laws. According to Lord Morley, the Act of 1833 was the most important Act passed by the Parliament till 1909.
The Charter Act of 1853 was the last Charter Act By this Act the number of the members of the Court of Directors was reduced from 24 to 18, of which 6 were to be nominated by the crown. The Law member of the Governor-General's Council became the full member of the Governor-General's Executive Council. Further, 6 member? were to be added to the Executive Council while legislating and thus the Governor- General-in-Council functioned both as Executive Council and Legislative Council The law member was made full member of the Executive Council for tending legal advice. However, the newly added six members were to function only for legislative purposes. Questions could be asked and the decisions of the Executive Council coil: be discussed though the Executive Council could veto a Bill of the Legislative Council The Act also removed the Company's patronage over the services and thus the services- were now thrown open to competitive examination.
Constitutional experiments under the British Crown (1857 -1947)
After the unsuccessful sepoy mutiny of 1857, the British Government took over the Indian administration from the East India Company and thus also assumed sovereignty over- India. In 1858 the British Parliament enacted the first statute for the governance of India; under the direct rule of the British Government—the Govt of India Act, 1858. This Act was the culmination of the centralization of British power over Indian administrates - The subsequent history up to the making of the Constitution is one of gradual relaxation of imperial control and the evolution of responsible government.
GOI Act, 1858: The Act provided that "India shall be governed by and in the name of the Sovereign through one of the principal secretaries of state (Secretary of State for India) assisted by a Council of 15 members". The system of "double government" introduced by Pitt's India Act of 1874 was finally abolished and the secretary of State replaced the Court of Directors and the Board of Control. The Act also declared the Secretary of State for India as a corporate body who could sue and be sued in England and in India. The Governor-General became the Viceroy and also became the direct representative of the Crown.
The Indian Councils Act of 1861 extended the powers of "he Viceroy and the governor of provinces. It empowered the Viceroy to make ruli'S for the more convenient transaction of business in the Council. This power was used by Lord Canning to introduce the "portfolio system" in the Government of India. For the purposes of legislation it was provided that the Viceroy's Executive Council be expanded by adding not less than 6 and not more than 12 'additional' members nominated by the Viceroy. Further, the Act restored the legislative powers of the provinces of Madras and Bombay. Besides, the Act empowered the Viceroy to issue Ordinances in times of an emergency.
The Indian Councils Act 1892 further expanded the strength of the Imperial Legislative Council and the Provincial Legislative Councils by providing for more additional member. At the same time an element of election was introduced for the first time by providing that some of the additional members could be indirectly elected. Further, this Act also allowed the budget to be discussed in the Council. The members were authorized to ask questions. But they were not allowed to ask supplementary questions. This may be termed as the beginning of the parliamentary system.
The Indian Councils Act, 1909, better known as Minto-Morley Reforms, was enacted in the wake of the growing strength of the extremists in the national movement and the relentless campaign continued by the moderates in the Indian National Congress for greater and more effective representation of Indians in running the affairs of the country. By this Act the number of elected members in the Imperial Legislative Council and the Provincial Legislative Councils non-official majority was introduced. The elected members were to be indirectly elected. The system of separate electorates was introduced for the Muslims and the income qualification for Muslim voters was kept lower than that for the Hindus. Further, the powers o Legislatures were enlarged allowing them to pass resolutions, ask questions and supplementaries, vote separate items in the budget but the budget as a whole could not i.e., voted upon. Besides, one Indian was to be appointed to the Viceroy's Executive Council. Consequently, Satyanarayan Sinha became the first Indian to be appointed to the Council in 1909. However, this Act is criticised for the introduction of the system of separate electorates.
Another set of constitutional reforms was introduced by he GOI Act of 1919. These constitutional reforms are referred to as Montague-Chelmsford (or Montford) reforms. This Act introduced 'Dyarchy' in the provinces which provided for the division m provincial subjects into "Reserved" and "Transferred" categories. The transform: subjects were to be administered by the Governor with the advice of the popularly elected Indian ministers. Another important development was the making or Central Legislature into a bicameral one. Furthermore, the system of separate electorate or communal representation was further extended to include Silas- Europeans and Anglo-Indians. The Act also declared that the objective of British government is 'the gradual introduction of responsible government in India'. Om- more important feature of this Act was that it granted women the right to vote
The following years witnessed intense political activity throughout the country. Ht national liberation movement was intensified. The Non-cooperation-Khilafat Movement and Civil Disobedience Movement were the major movements launched to pressurise the British Government for further constitutional reforms. Then, from 1930 to 1933 three Round Table Conferences (RTCs) on the Indian problem took place. Then, on the basis of deliberations of the three RTCs a White Paper published by the British Government in 193.2. This White Paper formed the basis the GOI Act 1935.
GOI Act 1935: This Act made the provisions for an all India federation consisting & eleven British provinces, six Chief Commissioner's Areas, and those princely states which desired to be the part of federation. However, the proposed federation never came up, as the conditions put for the formation of the federation could not at fulfilled. Further, dyarchy was abolished at the provincial level; instead it introduced at the Centre. The membership of the Central Legislative Assembly se the Council of States was increased and the communal representation was further extended. The residency powers were vested with the Governor-General. At the provincial level 'autonomy' replaced dyarchy and responsible government was introduced. The Act also provided for the establishment of a Federal Court.
Between 1935 and 1947, i.e. till independence much had happened on the Inc* political scene. Various plans and formulae were attempted to introduce in response to the nationalists' demand for independence and the Muslim League's demand for a separate state of Pakistan. For example, August Offer of 1940 announced by then Viceroy, C.R. formulae (1944) Wavell Plan (1945) Cabinet Mission Plan etc. However, it was the Mountbatten Plan announced on June 3,1947, which format the basis of the Independence of India Act of 1947.
The Independence of India Act, 1947 provided for the creation of two independent dominions of India and Pakistan with effect from August 15, 1947 Pakistan was comprise East Bengal, West Punjab, Sindh and the Sylhet district of Assam. 7sr Indian states could accede to either of the two Dominions. The Act provided that at responsibilities of His Majesty's Government in India and the suzerainty of His Majesty’s over the Indian States would lapse on August 15, 1947. It also provided that would be a separate Governor-General for each Dominion. There would also be separate Legislature for each Dominion with full authority for making laws. The act provided that both the states shall have right to frame their Constitutions by respective Constituent Assemblies. The two states shall also have the option to leave the British Commonwealth. The Act further mentioned that till the new Constitutions are not effective, the governments in the two states will be run on the basis of provisions of the GOI Act, 1935. Finally, it also provided for the members of the civil services appointed before Aug. 15 1947 to continue in service and to enjoy all benefits, which they were entitled to avail so far.
Following the provisions of the Independence of India Act, 1947, at the stroke of the midnight of August 14-15 India was granted independence and at the same time, the other dominion of Pakistan was also created. Therefore, Independence of India Act, 1947 was the most important landmark in the history of the evolution of the Constitution of India. On one hand it marked the end of the British era in India and on the other it ushered India in a new dawn.