Complete Information on the Making of Indian Constitution

The Indian Constitution is a systematic outgrowth of following factors:

1. India’s subjection to colonial rule and struggle for independence.

2. The ideological and intellectual inputs provided by stalwarts like Gandhi, Nehru, Ambedkar, Rajendra Prasad and others.

3. Socio-economic milieu of Indian society.

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4. Liberal democratic ideas of representative government, adult franchise, elected institutions etc. which was more pragmatic and commensurate with Indian ethos.

Apart from the above cited factors many factors have contributed to affect the constitutional provisions and it would be far from truth to accept that Indian Constitution is still in the process of evolution.

Constitutional Development:

The constitution of India was adopted by the Constituent Assembly in 1949, was not absolutely new. It was, to a great extent influenced by the Government of India Act 1935.

The foundation of British rule was laid in 1600 through the establishment of East India Company in England under a charter of British Queen Elizabeth.

The Company acquired control over Bengal in 1765. The period from 1765 to 1772 is called the period of Dual Government.

The landmarks in the development of the constitution during the British rule are explained below in a chronological order.

Regulating Act of 1773:

This was the first step taken by the British Government to control and regulate the affairs of the East India Company in India. It laid the foundations of Central Administration in the following three respects:

1. It designated the Governor of Bengal as the Governor-General of Bengal. The first such Governor-General was Lord Warren Hastings.

2. It subordinated the Governors of Bombay and Madras to the Governor-General of Bengal.

3. It established Supreme Court at Calcutta as the highest court.

Pitts India Act of 1784:

It placed the Indian affairs under direct control of the British Government. For that purpose, it established a Board of Control (representing the British Cabinet) over the Court of Directors (the governing body of the East India Company).

The governor-general’s position was made stronger. He could over-rule his council on important matters. Presidencies of Bombay and Madras were brought under his authority.

Charter Act, 1813:

By the Charter Act, the company’s trade monopoly in India was ended, and trade was thrown open to all British subjects. But trade in tea and trade with China remained exclusive to the company. And both the government and the revenues of India continued to be in their hands.

Charter Act of 1833:

It made the Governor-General of Bengal as the Governor-General of India. All civil and military powers were vested in him. Also, the Government of Bombay and Madras were deprived of their legislative powers.

This was the final step towards centralisation in British India. The Act created for the first time, the Government of India having authority over the entire territorial area possessed by the British in India”. Moreover, the Act also ended the activities of the East India Company as a commercial body.

Charter Act of 1853:

This Act separated, for the first time, the legislative and executive functions of the Governor General’s Council. It also introduced a system of open competition as the basis of recruitment for civil servants of the company and thus, deprived the Directors of their patronage power.

Government of India Act of 1858:

This Act transferred the government, territories and revenues of India from the East India Company to the British Crown. In other words, the rule of Company was replaced by the rule of Crown in India.

The powers of the British Crown were to be exercised by the Secretary of State for India. Thus, the Board of Control and Court of Directors were replaced by this new office.

The secretary of state was a member of the British Cabinet and was assisted by Council of India, having 15 members.

He was vested with complete authority and control over Indian administration through Governor- General as his agent, and he was responsible ultimately to the British Parliament.

Indian Councils Act of 1861:

The provisions of this Act were:

1. It introduced for the first time the representative institutions in India. It thus provided that Governor-General’s Executive Council should have some Indians as non- official members while transacting legislative business.

2. It initiated the process of decentralisation by restoring the legislative powers to the Bombay and Madras Presidencies.

3. It accorded the statutory recognition to the portfolio system.

4. It empowered the Governor-General to frame rules for more convenient transaction of business in the council.

Indian Councils Act of 1892:

It introduced the principle of election but in an indirect manner. The Governor-General still had the power of nomination even though the members were indirectly elected.

Also, it enlarged the functions of Legislative Councils and gave them the power of discussing the Budget and addressing questions to the Executive.

The main features of the Act were as under:

Indian Council Act 1892: Sir George Chesney Committee:

(i) The Indian Councils Act of 1892 further increases the number of members of central and provincial legislative councils.

(ii) The non-official members of the central council were to be nominated by Calcutta chamber of commerce and Provincial Legislative Councils.

(iii) Non-officials members of Provincial councils were to be nominated by local bodies, such as the Municipal Council’s and District Boards.

(iv) The members of the councils were given right to ask questions on matters of public interest.

Indian Councils Act of 1909:

This Act is also known as Morley-Minto Reforms. It changed the name of Central Legislative Council to Imperial Legislative Council and retained official majority in it. The provincial legislative Councils, on the other hand, were allowed to have non-official majority.

Apart from increasing the size of Legislative Councils, the Act also enlarged their deliberative functions. The Act also introduced a system of communal representation for Muslims by accepting the concept of ‘Separate Electorate’. Thus, this act ‘Legalized Communalism’ and Lord Minto came to be known as the ‘Father of Communal Electorate’.

The main features of the Act were as under:

Indian Council Act 1909: Sir Arundale Committee:

i. Expanded the central and provincial Legislative Councils.

ii. Maintained majority of official members.

iii. Non official majority in provincial legislature but not of elected ones.

iv. First attempt of introducing representative and popular element.

v. Official majority in Central (Imperial) Legislature.

vi. Separate electorate for Muslim.

vii. Members can discuss budget and more resolutions and supplementary question.

viii. Members can discuss matters of public interest. The main features of the Act were as under:

Government of India Act of 1919:

This act is also known as Montagu-Chelmsford Reforms. It relaxed the central control over the provinces by demarcating and separating the central subjects from that of provincial subjects. The central and provincial legislatures were authorized to make laws on their respective list of subjects.

The Act further divided the provincial subjects into two parts:

1. Transferred

2. Reserved

The transferred subjects were to be administered by the Governor with the aid of ministers responsible to the Legislative Council.

The reserved subjects, on the other hand, were to be administered by the Governor and his Executive Council without being responsible to the Legislative Council. This dual scheme of governance was known as ‘Dyarchy’. However, this experiment was largely unsuccessful.

The Act introduced, for the first time, bicameralism and direct elections in the country. Thus, the Imperial Legislative Council was replaced by a bicameral legislature consisting of an Upper House (Legislative Assembly). The majority of members of both the Houses were chosen by direct election.

The Act also required that the three of the six members of the Governor-General’s Council (other than the commander-in-chief) were to be Indian. The main features of the Act were as under:

Government of India Act 1919:

i. In fact an amending Act and provided for a Preamble.

ii. Subjects of administration divided into 2 categories— central and provincial.

iii. Dyarchy in Provinces-transferred and reserved subjects.

iv. Ministerial responsibility in limited sphere.

v. Elected members constituted 70%.

vi. Delegation of power between centre and provinces (no federation).

vii. Introduction of Bicameral legislature at centre first time.

viii. Each home was to have an elected majority.

ix. Discretionary power in the hands of Governor General.

x. No provision of collective responsibility.

xi. Budget was divided into two categories — votable, non-votable.

xii. Maximum limit on Governor General’s Executive Council was removed.

xiii. Half of his Executive Council members to be Indians (three).

xiv. Control of Secretary of State was reduced.

xv. 4 new offices of the High Commissioner of India were created.

The Act of 1919 – Dyarchy in the Provinces:

i. The Act established in the nine provinces the dual system of Government called Dyarchy.

ii. According to this system, the provincial subjects were divided into two parts-the Reserved and Transferred.

iii. Land Revenue, Famine Relief, Irrigation, and Law and under, control of news papers etc. was the Reserved Departments to be controlled by the Governor and his Executive Councilors.

iv. They were not responsible to the Legislative council. The Transferred departments were to be administered by the Governor and the ministers chosen from the elected members of the Provincial Legislative Council.

v. The system of double government did not work satisfactorily and was established by 1937.

The Simon Commission-1927:

i. November 1927, a statutory commission on called Simon Commission. Commission was appointed by the British government.

ii. Its main task was to examine the working of the Government of Indian Act of 1919.

iii. The commission under the chairmanship of Sir John Simon landed in Mumbai on 3rd February 1928.

iv. It was boycotted by all parties, because the seven members of it were all British.

v. The commission visited many places. The whole country rang with the slogan Simon Go Back in one such demonstration at Lahore Lala Lajpat Rai received lathi blows on his head. He later died in 1928.

Nehru Report-1928:

i. While the Simon Commission was carrying on its work without any regard for sentiments of the people of India, the leading Indian political parties tried to lay down a common political programme. In February 1928, an all party’s conference appointed a committee under the chairmanship of Moti Lai Nehru to discuss question of framing a new constitution of India.

ii. The Committee prepared a report which laid down Dominion Status as India’s political objective.

iii. The British government, however, did not accept the report of this committee.

iv. The committee refused to grant self-government to India within the British Empire.

Government of India Act-1935:

i. Simon Commission report was considered by RTC.

ii. After 3rd RTC, white paper was issued.

iii. White paper examined by a Committee of Parliament by Linlithgow.

iv. The recommendations of joint select committee formed the basis of GOI 1938.

v. A comprehensive and declared document-321 sections and 10 schedules.

vi. Federal Scheme and Provincial autonomy (autonomous units).

vii. Three Lists: Federal-59, Provincial-54, Concurrent-36.

viii. Dyarchy at centre

ix. Received subjects to be administrated by Governor General with Counselors appointed by him.

x. In six provinces legislature was bicameral and unicameral in five. ¹

xi. Bicameral Legislature at Centre: Council of State and Federal Assembly.

xii. Direct election for both houses.

xiii. For council of State

xiv. Seats were reserved on the basis of relative rank and importance of the state.

xv. One third member retires every third year.

xvi. Six members to be nominated by Governor General.

xvii. The Governor at his discretion decided as to what was his discretionary power.

xviii. The Governor General could authorize either federal or provincial legislature to enact a law with respect to any matter not enumerated in lists.

Cripps Mission-1942:

i. During Second World War the British desperately needed Indian’s cooperation in war and to secure it, sent to India in March 1942, a mission headed by a cabinet minister Sir Stafford Cripps.

ii. Cripps came to India on 22 March 1942. After long discussions with Indian leaders he put forward his proposals even bagging that:

iii. India should be given the Dominion Status after the war.

iv. During the War period, the Defence portfolio would remain in the hands of the viceroy and

v. After the termination of the war, a constituent Assembly would be setup to decide the future of India.

vi. The congress as well as the Muslim League refused the offers and the Cripps Mission ended in completes the failure.

Wavell Plan:

i. Concerned mainly with the Viceroy’s Executive Council.

ii. Proposed to make Council more representatives.

iii. External affairs to be under Indian Minister.

Shimla Conference:

i. Called to suggest names for Executive Council.

ii. Conference failed due to Jinnah.

Cabinet Mission:

The Cabinet Mission recommended for

(i) A Union of India comprising British India and the Indian States.

(ii) The federal centre should have control over defence, foreign affairs and the communi­cation.

(iii) The division of provinces according to three groups

(iv) Setting up of a Constituent Assembly to draft a constitution,

(v) The establishment of an interim National Government by the constitution of the Viceroy’s Executive Council from among the leaders of the different parties.

The Muslim League accepted-the proposals but criticized it particularly on the issue of Pakistan.

An interim Government was finally formed by the Congress in September 1946 with the Jawaharlal Nehru heading the Council of Ministers.

Mountbatten Plan-1947:

i. Lord Louis Mountbatten was sent to India and he assumed office as viceroy in March 1947. On 3 June came the broadcast laying down the method by which power would be transferred to Indian hands. He also advanced the date of withdrawal of the British from India to 15th August 1947.

ii. It was accepted by the Congress and the League. Pakistan was to comprise Sindh, Baluchistan and Northwest Frontier Province.

iii. But the provinces of Bengal and Punjab were to be partitioned between India and Pakistan.

iv. According, on 15th August, India and Pakistan emerged as two independent states.

Indian Independence Act-1947:

i. Simple and short document consisting of 20 clauses.

ii. Partition to be effected from Aug 15, 1947 as Independence Day.

iii. Constituent Assembly to function as Legislative bodies.

iv. Princely states were free to join either country or remain independent

v. Office of Secretary of State was abolished.

vi. Governor General and Governor to function as Constitutional heads.

vii. Partition of Punjab and Bengal.

viii. Paramountacy of crown over Princely states to lapse.

ix. First sitting of the Constituent Assembly-9 Dec. 1946.

x. Constituent Assembly as a Government body for Dominion of India-14 Aug 1947.

xi. ‘Meanwhile demand of Pakistan was accepted.

xii. When the Constituent Assembly reassembled on-31 Oct 1947.

‘Total Members-299

229-elected

70-nominated

The draft of Constitution prepared in Feb. 1948. Third sitting was over by 26 Nov. 1949-284 member finally passed sitting on 24 Jan. 1950.