Week 1: Historical Background - Constitution of India

 

Evolution of Constitutional Reforms in British India

The British presence in India began in 1600 with the establishment of the East India Company, which received a royal charter from Queen Elizabeth I granting it exclusive trading rights. Initially a commercial enterprise, the Company gradually evolved into a political force, notably after acquiring the diwani—or rights over revenue collection and civil justice—of Bengal, Bihar, and Orissa in 1765 through the Treaty of Allahabad after the Battle of Buxar. This marked the beginning of its transformation into a territorial power, laying the foundation for formal colonial rule.

The trajectory of British governance in India can be broadly divided into two distinct phases: 

1. the Company Rule (1773–1858) and 
2. the Crown Rule (1858–1947). 

The Company Rule witnessed a series of legislative and administrative reforms that aimed to centralize authority and establish British supremacy. These included the Regulating Act of 1773, the Pitt’s India Act of 1784, and the Charter Acts, each contributing incrementally to the structure of British Indian administration.

Company Rule (1773-1858)

1. Regulating Act of 1773
2. Amending Act of 1781
3. Pitt’s India Act of 1784
4. Act of 1786
5. Charter Act of 1793
6. Charter Act of 1813
7. Charter Act of 1833
8. Charter Act of 1853

Crown Rule (1858-1947)

1. Government of India Act of 1858
2. Indian Councils Act of 1861
3. Indian Councils Act of 1892
4. Indian Councils Act of 1909
5. Government of India Act of 1919
6. Government of India Act of 1935
7. Indian Independence Act of 1947

Company Rule

The Regulating Act of 1773

The Regulating Act of 1773 marked a seminal moment in British constitutional intervention in India. It represented the first formal step by the British Parliament to regulate the affairs of the East India Company, transitioning the Company from a purely commercial entity to a political-administrative authority. The Act laid the foundational framework for centralised governance in India, thereby influencing the evolution of British colonial administration.

Significance of the Act:

• Initiation of Parliamentary Control: It marked the beginning of direct British parliamentary oversight over the East India Company’s administration in India.
• Recognition of Administrative Role: For the first time, the Company's political and administrative responsibilities were formally acknowledged by the British Government.
• Genesis of Centralised Governance: It initiated the process of centralising authority, particularly by establishing a hierarchy among the presidencies.

Key Provisions of the Act:

1. Governor-General of Bengal:
• The Governor of Bengal was designated as the Governor-General of Bengal.
• An Executive Council of four members was constituted to assist him.
• Lord Warren Hastings became the first Governor-General.
2. Subordination of Presidencies:
• The governors of Bombay and Madras were made subordinate to the Governor-General of Bengal, ending their earlier autonomous status.
3. Establishment of Judiciary:
• A Supreme Court was established at Calcutta in 1774, comprising one Chief Justice and three puisne judges.
• This laid the groundwork for a structured judiciary in colonial India.
4. Ethical Regulations for Company Officials:
• Company servants were prohibited from engaging in private trade or accepting gifts and bribes from local inhabitants, aiming to curb corruption.
5. Accountability to the British Government:
• The Court of Directors was mandated to regularly report the Company’s revenue, civil, and military affairs to the British Government, enhancing official oversight.

 Amending Act of 1781

The Amending Act of 1781 was enacted by the British Parliament to address the practical and legal inconsistencies of the Regulating Act of 1773. Also known as the Act of Settlement, it aimed to clarify the relationship between the Supreme Court and the Executive, and streamline the administration of justice in colonial India.

Key Provisions:

1. Jurisdictional Clarification:
• The Governor-General, his Council, and Company servants were exempted from the jurisdiction of the Supreme Court for actions performed in their official capacities.
• Revenue-related matters were also excluded from the Court’s jurisdiction.
2. Scope of Judicial Authority:
• The Supreme Court’s jurisdiction was limited to the residents of Calcutta.
• It mandated application of personal laws—Hindu law for Hindus and Muslim law for Muslims—in civil and religious matters, laying early foundations for legal pluralism.
3. Appellate Framework and Regulation:
• Appeals from Provincial Courts were to be directed to the Governor-General-in-Council, not to the Supreme Court.
• The Governor-General-in-Council was empowered to frame regulations for Provincial Courts and Councils, thereby enhancing administrative coherence.

Pitt’s India Act of 1784

The Pitt’s India Act of 1784 marked a decisive shift in British policy by establishing direct political oversight over the East India Company’s affairs. Enacted to rectify the limitations of the Regulating Act of 1773, it institutionalized greater governmental control over colonial administration.

Salient Features

1. Separation of Functions:
• The Act clearly demarcated the Company’s commercial and political roles.
• The Court of Directors retained control over commercial matters.
2. Establishment of Dual Control:
• A new body, the Board of Control, was constituted to supervise political, military, and revenue affairs.
• This led to the creation of a dual government system in London, blending Company autonomy with state authority.
3. Political Oversight:
• The Board of Control was vested with the power to supervise and issue directives on governance in India, thus ensuring political accountability.

Significance of Pitt's India Act - 

• For the first time, the Company’s Indian territories were officially termed as "British possessions in India," symbolizing a shift in sovereignty.
• It marked the beginning of British parliamentary supremacy over the Company’s operations, paving the way for eventual Crown rule in 1858.

Charter Act of 1813

The Charter Act of 1813 was a pivotal legislative measure that marked a transition in British colonial policy from commercial exploitation towards administrative and ideological consolidation. It redefined the role of the East India Company while reinforcing the British Crown’s supremacy.

Key Provisions

1. End of Trade Monopoly:
• The Act ended the East India Company’s monopoly over Indian trade, opening it to all British merchants.
• However, the Company retained its monopoly over tea trade and commerce with China.
2. Reassertion of Crown Sovereignty:
• The Act unequivocally affirmed the sovereignty of the British Crown over Company-held territories in India, reducing the Company's role to that of an administrative agent.
3. Promotion of Christian Evangelism:
• For the first time, Christian missionaries were permitted to enter India officially, marking the beginning of state-supported proselytisation.
4. Educational Reforms:
• The Act directed the promotion of Western education in India and allocated funds for educational development—an early step towards cultural transformation under colonial rule.
5. Fiscal Authority to Local Governments:
• It empowered Indian provincial administrations to levy and collect taxes, and to penalize non-compliance—enhancing their fiscal autonomy.

Charter Act of 1833

The Charter Act of 1833 marked a decisive phase in the evolution of British administrative centralisation in India. It consolidated political authority and ended the East India Company’s commercial role, thereby transforming the Company into an administrative arm of the British Crown.

Key Provisions

1. Centralisation of Governance:
• The Act designated the Governor-General of Bengal as the Governor-General of India, vesting in him all civil and military authority across British India. This created, for the first time, a centralised Government of India. Lord William Bentinck became the first to hold this office.
2. Unification of Legislative Powers:
• Legislative powers of the Governors of Bombay and Madras were abolished. The Governor-General in Council became the sole legislative authority, and legal enactments were henceforth termed ‘Acts’ instead of ‘Regulations’.
3. Termination of Commercial Functions:
• The Act ended the East India Company’s trading operations, making it a purely administrative body. The Company's territories were declared to be held “in trust” for the British Crown.
4. Civil Service Reform Attempt:
• The Act proposed open competition for civil services and affirmed that Indians should not be disqualified from public employment. However, this progressive clause faced strong resistance from the Court of Directors and remained unimplemented.

Charter Act of 1853

The Charter Act of 1853 was the final Charter Act and marked a significant constitutional development. It refined the governance structure of British India by separating powers and introducing reforms aimed at greater administrative efficiency and inclusivity.

Key Provisions

1. Separation of Powers:
• For the first time, legislative and executive functions of the Governor-General’s Council were separated. A new legislative wing with six additional members (legislative councillors) was formed—termed the Indian (Central) Legislative Council—functioning like a mini-Parliament with defined legislative procedures.
2. Civil Services Reform:
• Introduced an open competitive system for civil service recruitment, making the covenanted civil service accessible to Indians. This reform led to the formation of the Macaulay Committee (1854) for implementation.
3. Indefinite Extension of Company Rule:
• The Company’s rule in India was extended without a fixed time limit, signaling that British Parliament could end its rule whenever it wished—unlike earlier Charter Acts which specified durations.
4. Introduction of Local Representation:
• Provincial governments of Madras, Bombay, Bengal, and Agra nominated four of the six legislative councillors—marking the beginning of local participation in the central legislative process.

The Revolt of 1857, often referred to as the First War of Indian Independence, marked a significant turning point. In its aftermath, the British Crown assumed direct control over Indian affairs through the Government of India Act, 1858, initiating the Crown Rule. This phase saw a more centralized and bureaucratized form of governance, with policies driven by imperial interests, though occasionally interspersed with administrative reforms such as the Indian Councils Acts and the Montagu-Chelmsford Reforms.

CROWN RULE

Government of India Act of 1858

Passed after the Revolt of 1857, the Government of India Act of 1858 marked the formal end of Company rule and the beginning of direct Crown rule in India. Also known as the Act for the Good Government of India, it aimed to streamline administration and bring India under the direct control of the British Parliament.

Key Provisions

1. Transfer of Power to the Crown:
• The East India Company was abolished. India was to be governed in the name of Her Majesty, and the Governor-General was redesignated as the Viceroy, representing the British Crown directly. Lord Canning became the first Viceroy of India.
2. Abolition of Double Government:
• The Board of Control and Court of Directors were abolished, ending the dual control over Indian affairs.
3. Creation of Secretary of State for India:
• A new post, Secretary of State for India, was created with full powers over Indian administration. He was a British Cabinet member and accountable to Parliament.
4. Council of India:
• A 15-member advisory council was established to assist the Secretary of State. The Secretary was its chairman, and the council was only advisory in nature.
5. Legal Entity Status:
• The Secretary of State-in-Council was made a corporate body, capable of suing and being sued in both India and England.

 Indian Council Act of 1861

The Indian Councils Act of 1861 marked the beginning of Indian legislative representation and initiated decentralisation of governance. Enacted after the 1857 revolt, it aimed to involve Indians in governance and reform legislative procedures.

Key Provisions

1. Introduction of Indian Representation:
• For the first time, Indians were associated with law-making by nominating them as non-official members of the Viceroy’s legislative council.
• In 1862, Lord Canning appointed Raja of Benaras, Maharaja of Patiala, and Sir Dinkar Rao.
2. Decentralisation of Powers:
• Legislative powers were restored to the Bombay and Madras Presidencies, reversing earlier centralisation.
• This laid the groundwork for provincial autonomy, fully realised in 1937.
3. New Legislative Councils:
• Enabled the creation of legislative councils for Bengal (1862), North-Western Provinces (1886), and Punjab (1897).
4. Recognition of Portfolio System:
• Legalised the portfolio system introduced by Lord Canning in 1859, where council members handled specific departments and issued final orders on their matters.
5. Viceroy’s Ordinance Power:
• Empowered the Viceroy to issue ordinances in emergencies without council approval. These had a validity of six months.

 Indian Councils Act of 1892

The Indian Councils Act of 1892 marked a cautious step towards limited representative governance, expanding legislative participation but maintaining British control.

Key Provisions

1. Expansion of Legislative Councils:
• Increased the number of non-official members in both Central and provincial councils, though official majority was retained.
2. Enlarged Legislative Functions:
• Councils were allowed to discuss the budget and ask questions to the executive—introducing limited legislative oversight.
3. Indirect Introduction of Election:
• Some non-official members were to be nominated based on recommendations from local bodies (e.g., district boards, municipalities, universities, zamindars).
• For the Central Council, recommendations came from provincial councils and the Bengal Chamber of Commerce.
• Though not termed "elections", this process laid the groundwork for representative governance.

Indian Councils Act of 1909

The Indian Councils Act of 1909 was a major constitutional reform introducing wider Indian participation in governance, but also sowed communal divisions.

Key Provisions

1. Expansion of Legislative Councils:
• Central Council size increased from 16 to 60 members.
• Provincial Councils also expanded (numbers varied), improving Indian representation.
2. Composition Changes:
• Official majority retained at the Centre.
• Non-official majority allowed in Provinces—a first in British India.
3. Enhanced Legislative Powers:
• Members could now ask supplementary questions, and move budget-related resolutions, increasing deliberative scope.
4. Indian Inclusion in Executive:
• For the first time, Indians were included in the executive councils of the Viceroy and Governors.
• Satyendra Prasad Sinha became the first Indian Law Member in the Viceroy’s Executive Council.
5. Introduction of Separate Electorates:
• Muslims granted separate electorates, enabling them to elect Muslim representatives exclusively.
• This legalised communalism and earned Lord Minto the title "Father of Communal Electorate".
6. Special Interest Representation:
• Provided separate representation for presidency corporations, chambers of commerce, universities, and zamindars.

Government of India Act, 1919 (Montagu-Chelmsford Reforms)

• Background: Based on the 1917 declaration for the gradual introduction of responsible government in India.
• Came into force: 1921
• Key Features:
1. Division of subjects: Central and provincial subjects separated; provinces got more autonomy but structure remained centralized.
2. Dyarchy introduced: Provincial subjects split into Transferred (handled by ministers accountable to legislature) and Reserved (handled by Governor and executive council). It failed in practice.
3. Bicameralism & Direct elections introduced at the Centre – with Council of State (Upper House) and Legislative Assembly (Lower House).
4. 3 of 6 Viceroy’s Executive Council members (excluding C-in-C) were to be Indians.
5. Communal representation extended to Sikhs, Indian Christians, Anglo-Indians, and Europeans.
6. Limited franchise based on property, tax, or education.
7. High Commissioner for India created in London.
8. Provided for a Public Service Commission (set up in 1926).
9. Provincial and Central budgets separated.
10. Provided for a Statutory Commission after 10 years to review the Act's working.

Simon Commission (1927)

• A 7-member British-only committee chaired by Sir John Simon to review the 1919 Act.
• Boycotted by all Indian parties due to all-white composition.
• Recommendations (1930):
• Abolish dyarchy
• Extend provincial autonomy
• Form a federation of British India & princely states
• Continue communal electorates
• Led to Round Table Conferences and a White Paper, forming the basis of the Government of India Act, 1935.

Communal Award (1932)

• Announced by British PM Ramsay MacDonald.
• Separate electorates extended to:
• Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans
• Also included Depressed Classes (Scheduled Castes)
• Gandhi opposed this move; undertook a fast unto death in Yerawada Jail.
• Led to the Poona Pact between Congress and Depressed Class leaders:
• Joint Hindu electorate retained
• Reserved seats for Depressed Classes granted.

 Government of India Act, 1935

The Government of India Act, 1935 represented a significant constitutional development, laying the groundwork for India’s future federal structure and administrative framework. As the longest piece of legislation enacted by the British Parliament for India, comprising 321 sections and 10 schedules, it marked a decisive step towards self-governance, albeit within the confines of colonial control.

Key Features:

1. Proposed All-India Federation
• The Act envisaged an All-India Federation consisting of British Indian provinces and princely states as constituent units.
• Legislative powers were demarcated through three lists: Federal (59 items), Provincial (54 items), and Concurrent (36 items), with residuary powers vested in the Viceroy.
• However, the federation never materialised as the princely states declined to accede.
2. Provincial Autonomy
• The Act abolished the dyarchy introduced under the 1919 Act at the provincial level and ushered in provincial autonomy.
• Elected Indian ministers were entrusted with real authority, and governors were to act on their advice, making the provincial governments responsible to elected legislatures.
• This autonomy came into force in 1937 but was suspended in 1939 due to the resignation of Congress ministries.
3. Dyarchy at the Centre (Not Implemented)
• While the Act proposed dyarchy at the central level—dividing federal subjects into ‘transferred’ and ‘reserved’—this provision was never implemented due to the non-formation of the federation.
4. Bicameralism in Provinces
• Legislative bicameralism was introduced in six provinces—Bengal, Bombay, Madras, Bihar, Assam, and United Provinces—comprising a Legislative Council and Legislative Assembly.
• Despite this structural change, legislative powers remained constrained by the overarching authority of the colonial executive.
5. Extension of Communal Representation
• The principle of separate electorates was expanded to include Scheduled Castes, women, and labourers, further entrenching communal divisions in electoral politics.
6. Administrative Reforms
• The Act abolished the Council of India (1858), replacing it with an advisory body to assist the Secretary of State for India.
• It led to the establishment of the Reserve Bank of India (1935) as a central authority for monetary regulation.
7. Public Service Institutions
• It laid the foundation for an institutionalised bureaucracy through the creation of the Federal Public Service Commission, Provincial Public Service Commissions, and Joint Public Service Commissions for select provinces.
8. Franchise Expansion
• Although limited, the franchise was broadened to approximately 10% of the adult population based on property, tax, and educational qualifications.
9. Federal Court Establishment
• A Federal Court was constituted in 1937 to adjudicate disputes between the central government and provinces, marking an early effort towards judicial federalism.

 Indian Independence Act of 1947 – A Landmark in India’s Constitutional Evolution

The Indian Independence Act of 1947 marked the formal end of British colonial rule in India and facilitated the creation of two independent dominions: India and Pakistan. It was enacted in response to growing nationalist demands, communal tensions, and the political deadlock following the failure of the Cabinet Mission Plan. The Act operationalised the Mountbatten Plan, which proposed the partition of British India and transfer of power by August 15, 1947.

The Act declared India to be an independent and sovereign state and provided for the partition into two dominions—India and Pakistan—each with the right to secede from the British Commonwealth. The British Crown's paramountcy over princely states and tribal areas was abolished, allowing them the choice to join either dominion or remain independent. This provision laid the foundation for later integration of princely states by Indian leadership under Sardar Patel.

Administrative and constitutional continuity was ensured by retaining the Government of India Act, 1935 as the interim framework, with dominions empowered to modify or repeal British laws. The Constituent Assemblies of both dominions were authorised to frame new constitutions and legislate independently. The Act abolished the offices of the Secretary of State for India and the Viceroy, replacing them with Governor-Generals appointed on the advice of the respective dominion cabinets. It also curtailed the British monarch’s legislative prerogatives, relegating them to a nominal role.

Importantly, the Act recognised the constitutional nature of governance, mandating the Governor-General and provincial governors to act on the advice of their respective council of ministers. It also discontinued British control over civil services, though service members retained their rights until new administrative arrangements were made.

In essence, the Indian Independence Act, 1947 was a definitive legal instrument that not only transferred power but also laid the groundwork for India’s sovereign democratic journey. It signified the culmination of the freedom struggle and the beginning of constitutional nation-building through the Constituent Assembly, which transitioned into the legislative body of the new Indian Dominion.

Colonial Legacy and the Foundations of Modern Indian Polity

The legacy of British rule profoundly influenced the institutional and constitutional development of modern India. The need for self-governance gained momentum in the early 20th century, culminating in the formation of the Constituent Assembly in 1946. The Indian Constitution, which came into force on January 26, 1950, was deeply shaped by colonial administrative practices, legal frameworks, and the gradual evolution of representative institutions under British rule.

In conclusion, while Indian independence in 1947 marked the end of colonial domination, the constitutional and political framework of the Republic of India bears significant imprints of its colonial past. The British period laid the structural foundation for modern governance, many elements of which were adapted and refined by Indian constitutional framers to serve the needs of a sovereign, democratic republic.