UPSC Revision Notes For Polity: Historical Background & Making of Indian Constitution

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Historical Background of Constitution

There are various regulations and acts in the background of the Indian Constitution:

• Regulating Act 1773
• Pitt’s India Act 1784
• Charter Act of 1813
• Charter Act of 1833
• Charter Act of 1853
• Government of India Act 1858
• Indian Councils Act 1861
• India Councils Act 1892
• Government of India Act 1909 or Morley-Minto Reforms 1909
• Government of India Act 1919 or Montague-Chelmsford Reforms 1919
• Government of India Act 1935
• Indian Independence Act 1947

Regulating Act, 1773

• Laid the foundations of central administration in India.
• First step taken by the British Government to control and regulate the affairs of the East India Company in India. For the first time it recognized the political and administrative functions of the Company.
• Recognized the right of Parliament to regulate the civil, military and revenue affairs of the company’s territories in India.
• Supreme Court Establishment at Calcutta- 1774, comprising one chief justice and three other judges.
• Government was headed by a Governor General in Bengal and four Councilors. Designated the Governor of Bengal as the ‘Governor General of Bengal’ and created an Executive Council of four members to assist him.
• First Governor-General of Bengal was Lord Warren Hastings (1773-1785).
• Introduced Court of Directors (governing body of the Company) to report on its revenue, civil, and military affairs in India.
• Made the governors of Bombay and Madras presidencies subordinate to the Governor General of Bengal. Earlier, the three presidencies were independent of one another.
• Prohibited the servants of the East India Company from engaging in any private trade or accepting presents or bribes from the Natives.

Pitt’s India Act, 1784

• Distinguished between the commercial and political functions of the Company.
• Extended the control of the British Government over the Company’s affairs and its administration in India.
• Established a Board of Control to control and guide the work of the Court of Directors and the Government of India.
• Empowered the Board of Control to supervise and direct all operations of the British possessions in India such as: the civil, the military and the revenues.

Charter Act of 1793

• Extended the overriding power given to Lord Cornwallis over his council, to all future Governor-Generals and Governors of Presidencies.
• Extended the trade monopoly of the Company in India for another period of 20 years.
• Provisions were made so that the Commander-in-Chief was not to be a member of the Governor-General’s council, unless he was appointed on that post.
• Act also laid down that the members of the Board of Control and their staff were to be paid out of the Indian revenues.

Charter Act of 1813

• Ended the trade monopoly of the East India Company in India, except the company’s monopoly in trade with China and trade in tea.
• Provision that the Company should invest Rs. 1 Lakh every year on the education of Indians.
• It asserted the sovereignty of the British Crown over the Company’s territories in India. The company’s rule was extended to another 20 years.
• Empowered the Local Governments in India to impose taxes on persons and to punish those who did not pay them.
• Gave permission to the persons who wished to go to India for promoting moral and religious improvements – Christian Missionaries
• Regulated the company’s territorial revenues and commercial profits. It was asked to keep its territorial and commercial accounts separate.

Charter Act of 1833

• Laws made under the previous acts were called “Regulations” while laws made under this act were called “Acts”.
• Final step towards centralization in British India.
• Company’s monopoly over trade with China and in tea ended.
• Made Governor-General of Bengal as the “Governor-General of India” and vested in him all civil and military powers.
• It attempted to introduce a system of open competitions for the selection of civil servants.
• Legalized the British colonization of India in the East India Company from a commercial body to an administrative body.
• Lord William Bentinck the first Governor-General of India.
• As Governor-General of India had legislative powers over the entire British India, Governors of Bombay and Madras lost their legislative powers.
• Governor-General in council had the authority to amend, repeal or alter any law in British Indian territories.
• Act also directed the Governor General-in-Council to adopt measures to mitigate the state of slavery, persisting in India since sultanate Era.
• Governor-General’s government was called “Government of India” and the council was called “India Council”.
• Indian Law Commission (1834) was established to codify all Indian laws. The first Law Commission had Lord Macaulay as its chairman.
• Laid down regulation for establishment of Christian establishments in India.

Charter Act of 1853

• Separated the legislative and executive functions of the Governor-General’s council for the first time.
• Act empowered the British East India Company to retain the territories and the revenues in India in trust for the crown (not for any defined period).
• Introduced an open competition system of selection and recruitment of civil servants.
• Macaulay Committee on the Indian Civil Service in 1854.
• It provided for the addition of six new members called legislative councilors to the council (12 in total).
• This legislative wing of the council functioned as a “mini Parliament”, adopting the same procedures as the British Parliament.
• Local representation in the Indian (Central) Legislative Council for the first time.
• Law member (fourth member) became a full member with the right to vote.
• Number of Board of Directors was reduced from 24 to 18 out of which 6 people were to be nominated by the British Crown.

GOVERNMENT OF INDIA ACT OF 1858

• Abolished the Board of Control and Court of Directors thus, ending Double Government.
• Also known as the “Act of Good Government of India” as it abolished the East India Company and transferred powers to the Crown.
• Rule of the Company ended and Viceroy was the new Designation of the “Governor General of India”; who was the direct representative of the British Crown in India.
• Office of “Secretary of State” for India was made. He was a member of the British Cabinet responsible to the British Government.
• The Secretary of State was to be assisted by a Council of 15 members. It was an advisory body.

INDIAN COUNCILS ACT 1861

• Legislative Powers of Bombay and Madras Presidencies were restored.
• Viceroy was empowered to issue an Ordinance without the consent of the Legislative Council in case of emergency. This Ordinance was valid till 6 months from the date of issue.
• Provided for Viceroy to nominate some ‘Nominated Indians in the extended Legislative Council. (by 1861 Viceroy Canning nominated three Indians in the Legislative council)
• Formation of the New Legislative Council (Upper House) for Bengal (formed in 1862), North Western Province (1886), and Punjab (1897). Presidencies of Bombay, Madras and Bengal had more power than this.
• It recognized the “Portfolio system” which was started by Lord Canning in 1859.

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Portfolio System: A member of Viceroy Council was made in charge of one or more Departments and could independently take decisions and issue orders on the behalf of the Council.

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INDIAN COUNCILS ACT 1892

• Gave power to Legislative Councils: power of discussing Budget and addressing the Questions to the Executive. (not voting in budget)
• Additional non-official members increased in Central and Provincial Legislative Councils. Official majority was maintained.
• Nomination of some Non-Official members of:
• Central Legislative Council: by the Viceroy on the Recommendation of the Provincial Legislative Council and Bengal Chamber of Commerce.
• Provincial Legislative Council: by the Governor on the advice of District Board, Municipalities, Universities, Trade Associations, Zamindars and Chambers.
• Word ‘Election’ was nowhere mentioned but a limited and indirect election for the Nominated members was introduced in this Act.

INDIAN COUNCILS ACT 1909

• Also known as Morley-Minto reforms.
• Central Legislative Council: Official Majority
• Provincial Legislative Council: Non- Official Majority
• More powers were given to the Legislative Councils: Members were allowed to ask supplementary questions.
• Voting for separate items on the Budget or budget as whole was not allowed.
• Lord Minto became the “Father of Communal Electorate”.
• Separate Electorate for Muslims introduced. Only Muslims could vote for the Muslim Candidates.
• Indians were allowed in the Executive Council of the Viceroy for the first time. Satyendra Prasad Sinha was appointed as a Law member in the Viceroy Executive Council.
• Separate representation for Presidency Corporations, Chamber of Commerce, Universities etc.
• It was the first attempt to introduce “Representative and Popular Elements in the Council. Councils were referred to as Legislative Councils for the first time.

GOVERNMENT OF INDIA ACT OF 1919

• Also known as Montagu Chelmsford Reforms or Montford Reforms
• Central and Provincial Subjects were separated with the power to make Laws on their respective subjects.
• Provincial Subjects were divided into two parts: Reserved and Transferred:
• Reserved Subjects: They were to be administered by the Governor General and his executive Council. They were not responsible to the Legislative council.
• Transferred Subjects: They were to be administered by the Governor General with the help of his council. They were responsible to the legislative council for these subjects.
• Three of the six members of the Viceroy Executive Council were Indians. (Excluding Commander in Chief).
• Dyarchy was introduced in the provinces

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(Dual Rule/Double Government: Division of the Subjects allocated to the states into Two Categories, one managed by Executive Branch, Second by Popular ministers who were Indians)

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• For the First time, the Indian Legislative Council was replaced by the Upper and Lower House of the Parliament (Bicameralism).
• Majority of the members were to be chosen by Direct Elections.
• Separate electorate: for Sikhs, Indian Christians, Anglo Europeans, Europeans (Element of Communal Representation).
• Franchise given to a limited number of people on the basis of property, Tax, Education.
• Provincial Budget was separated from Central Budget and Provinces were allowed to enact their own Budget.
• Provided for setting up of a Commission to see the working after 10 years of these provisions coming into force. Simon Commission was appointed in 1927 for this purpose.
• 1st time the British Government: introducing a Responsible Government

GOVERNMENT OF INDIA ACT OF 1935

• All India Federation consisting of Provinces and Prince states. It provided for division of Subjects based on Cent Provincial and Concurrent List.
• Residuary powers resided with the Governor General. Princely States did not join the Federation.
• Governor was required to act under the advice of the ministers responsible to the provincial legislature. This provision came into force in 1937 and repealed in 1939.
• Diarchy was abolished and Provincial autonomy was Introduced.
• Diarchy provision in the Centre was introduced.
• Federal Subjects were divided into Reserved and Transferred. (This provision never came to being)
• Provinces were allowed to act as independent units of administration.
• Bicameralism: It came into being in six out of 11 provinces: Bombay, Bengal, Madras, United Province, Bihar and Assam.
• Separate Electorate extended: for the depressed classes and Women.
• Secretary of State was provided with a team of Advisors. The Council of India was abolished.
• Extended Franchise: 10% of people got the voting rights.
• Reserve Bank of India to be established for controlling currency and credit.
• Establishment of a Federal Court-1937

GOVERNMENT OF INDIA ACT OF 1947

• Response to the Mountbatten Plan.
• Office of the Viceroy abolished.
• Office of Secretary of State was abolished and functions were transferred to the Secretary of States for the Commonwealth.
• Partition of India with the creation of two independent Dominion; India, Pakistan These Dominions had the Right to secede from the British Commonwealth. They were allowed to be independent or join any dominion.
• Governor Generals for both the Dominion of India and Pakistan were to be appointed by the King of Britain and they can govern as per Act of 1935 or modify as needed.
• Constituent assemblies of the Dominions were empowered to frame and enact the Constitution. They could also repeal any Act including the Independence of India Act.
• The Constituent Assembly could legislate over their territories till the drafting and enactment of the New Constitution.
• Designated the Governor-General of India and the provincial governors as constitutional (nominal) heads of the states. They were made to act on the advice of the respective council of ministers in all matters.
• Right to Veto Bills or ask for Reservation of Bills of the Governor were reserved but were taken away from the British Monarch.
• Removed the title of “Emperor of India” from the royal titles of the King of England.
• British paramountcy over princely states came to an end.
• Discontinued the appointment to civil services and reservation of posts by the secretary of state for India.

Topic: Making of the Indian Constitution

DEMAND FOR CONSTITUENT ASSEMBLY (CA)

Timeline:
1924- Idea first given by Swaraj Party.
1934– M.N. Roy put forward the demand for CA
1935– INC officially demanded CA.
1938– Jawaharlal Nehru, on behalf of the INC declared that “the Constitution of free India must be framed, without outside interference, by a Constituent Assembly elected on the basis of adult franchise”.
1940- Demand accepted in principle in August Offer.
1942– Cripps Proposal for Constitution (rejected).
1946– Cabinet Mission Plan (CMP) accepted by all parties. Lord Patrick Lawrence, Sir Stafford Cripps, A V Alexander were its members.
However, Cabinet Mission Plan rejected the idea of two Constituent Assemblies.

COMPOSITION OF THE CONSTITUENT ASSEMBLY

Established- Nov 1946 under Cabinet Mission Plan
Strength: 389 members (296- British, 94- Princely States and 4- Chief Commissioners Provinces)
Seat allocation: Divided among the three principal communities: Muslims, Sikhs and General (all except Muslims and Sikhs), in proportion to their population.
Representatives of all sections of the Indian society: Hindus, Muslims, Sikhs, Parsis, Anglo-Indians, Indian Christians, SCS, STS including women of all these sections.
Voting Method: Proportional representation (single transferable vote)
Election:

• Partly elected: In British Provinces
• Partly nominated: by heads of Princely states body
• Indirectly elected: by the members of the provincial assemblies.

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Important Note: Mahatma Gandhi was not part of C.A.
Princely States decided to stay away from the Constituent Assembly.

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WORKING OF THE CONSTITUENT ASSEMBLY

First meeting: Dec 9, 1946 (Muslim League boycotted), 211 members only.
President: Dr. Sachidanand Sinha (oldest member)- temporary president of the assembly. Later, Dr. Rajendra Prasad was elected as a President of C.A.
Vice-Presidents (Two): H.C. Mukherjee and V.T Krishnamachari.

Objectives Resolution

• Jawaharlal Nehru moved this historic resolution on Dec 13, 1946 in the Assembly.
• Adopted: 22 Jan 1947
• Present Preamble of constitution is a modified version of Objective Resolution.
• It contained the fundamentals & philosophy of Constitutional structure.

CHANGES BY THE INDEPENDENCE ACT 1947

Indian Independence Act, 1947 made three changes in CA:
1. Assembly: fully sovereign body, free to abrogate or alter any law.
2. Two separate organs were assigned to the Assembly (performed on separate days) :
Legislative body: Chaired by GV Mavalankar
Constituent body: Chaired by Dr. Rajendra Prasad
Assembly became first Parliament of free India (Dominion Legislature). These two functions continued till November 26, 1949.
3. After withdrawal of Muslim League members, total strength came down to 299 as against 389 under the Cabinet Mission Plan.

Functions Of Constituent Assembly

• July 22, 1947: Adopted the National Flag
• May, 194: Ratified India’s membership of Commonwealth
• Jan 24, 1950: Adopted National Song & National Anthem
• Jan 24, 1950: Elected Rajendra Prasad as first President of India

However, it continued as provisional Parliament of India from Jan 26, 1950 till formation of new Parliament (May, 1952).
Total time: 2 years, 11 months, 18 days (11 Sessions)
Total expenditure incurred: 64 lakhs

MAJOR COMMITTEES

Jawaharlal Nehru: Union Powers Committee, Union, Constitution Committee, States Committee
Dr. Rajendra Prasad: Rules of Procedure Committee, Steering Committee, Provincial Constitution Committee,
Sardar Patel: Advisory Committee on Fundamental Rights, Minorities & Tribal & Excluded Areas
Dr. B.R. Ambedkar- Drafting Committee

DRAFTING COMMITTEE

Established: Aug 29, 1947.
Members: 7
1. Dr. B.R. Ambedkar (Chairman)
2. N. Gopalaswamy Ayyangar
3. Alladi Krishnaswamy Ayyar
4. Dr. K.M. Munshi
5. Syed Mohammad Saadullah
6. N. Madhava Rau (He replaced B.L. Mitter who resigned due to ill-health)
7. T.T. Krishnamachari (He replaced D.P. Khaitan who died in 1948)

ENACTMENT AND ENFORCEMENT OF THE CONSTITUTION

• Adopted: 26 November 1949. (284 CA members signed the document)
• It contained Preamble, 395 Articles & 8 Schedules.
• Preamble was enacted after the entire Constitution was already enacted to align with the philosophy of the constitution.
• Major part came into force on Jan 26, 1950: Republic Day
• Jan 26, 1930: Purna Swaraj Day was celebrated following Lahore Session (Dec 1929) of the INC.
• Indian Independence Act, 1947 & Gol Act, 1935 with all its enactments were repealed. However, The Abolition of Privy Council Jurisdiction Act (1949) continued.