Historical Background of Indian Constitution

Before 1947, India was divided into two main entities

The British India which co
nsisted of 11 provinces and the Princely states ruled by Indian princes under su
bsidiary alliance policy. The two entities merged together to form the Indian Un
ion, but many of the legacy systems in British India is followed even now. The h
istorical underpinnings and evolution of the India Constitution can be traced to
many regulations and acts passed before Indian Independence.
Indian System of Administration
Indian democracy is Parliamentary form of democracy where executive is responsib
le to the Parliament. The Parliament has two houses Loksabha and Rajyasabha. Als
o the type of governance is Federal, ie there is separate executive and legislat
ure at Center and States. We also have self governance at local government level
s. All these systems owe their legacy to the British administration. Let us see
the historical background of Indian Constitution and its development through yea
rs.
Regulating Act of 1773
The first step taken by the British Parliament to control and regulate the a
ffairs of the East India Company in India.
It designated the Governor of Bengal (Fort William) as the Governor-General
(of Bengal).
Warren Hastings became the first Governor-General of Bengal.
Executive Council of the Governor-General was established (Four members). Th
ere was no separate legislative council.
It subordinated the Governors of Bombay and Madras to the Governor-General o
f Bengal.
The Supreme Court was established at Fort William (Calcutta) as the Apex Cou
rt in 1774.
It prohibited servants of the company from engaging in any private trade or
accepting bribes from the natives.
Court of Directors (governing body of the company) should report its revenue
.
Pitt s India Act of 1784
Distinguished between commercial and political functions of the company.
Court of Directors for Commercial functions and Board of Control for politic
al affairs.
Reduced the strength of the Governor General s council to three members.
Placed the Indian affairs under the direct control of the British Government
.
The companies territories in India were called the British possession in Indi
a .
Governor s councils were established in Madras and Bombay.
Charter Act of 1813
The Company s monopoly over Indian trade terminated; Trade with India open to
all British subjects.
Charter Act of 1833
Governor-General (of Bengal) became as the Governor-General of India.
First Governor-General of India was Lord William Bentick.
This was the final step towards centralization in the British India.
Beginning of a Central legislature for India as the act also took away legis
lative powers of Bombay and Madras provinces.
The Act ended the activities of the East India Company as a commercial body

and it became a pure administrative body.

Charter Act of 1853
The legislative and executive functions of the Governor-General s Council were
separated.
6 members in Central legislative council. Four out of six members were appoi
nted by the provisional governments of Madras, Bombay, Bengal and Agra.
It introduced a system of open competition as the basis for the recruitment
of civil servants of the Company (Indian Civil Service opened for all).
Government of India Act of 1858
The rule of Company was replaced by the rule of the Crown in India.
The powers of the British Crown were to be exercised by the Secretary of Sta
te for India
He was assisted by the Council of India, having 15 members
He was vested with complete authority and control over the Indian administra
tion through the Vice roy as his agent
The Governor-General was made the Viceroy of India.
Lord Canning was the first Viceroy of India.
Abolished Board of Control and Court of Directors.
Indian Councils Act of 1861
It introduced for the first time Indian representation in the institutions l
ike Viceroy s executive+legislative council (non-official). 3 Indians entered Legi
slative council.
Legislative councils were established in Center and provinces.
It provided that the Vice-roys Executive Council should have some Indians as
the non-official members while transacting the legislative businesses.
It accorded statutory recognition to the portfolio system.
Initiated the process of decentralisation by restoring the legislative power
s to the Bombay and the Madras Provinces.
India Council Act of 1892
Introduced indirect elections (nomination).
Enlarged the size of the legislative councils.
Enlarged the functions of the Legislative Councils and gave them the power o
f discussing the Budget and addressing questions to the Executive.
Indian Councils Act of 1909
This Act is also known as the Morley- Minto Reforms.
Direct elections to legislative councils; first attempt at introducing a rep
resentative and popular element.
It changed the name of the Central Legislative Council to the Imperial Legis
lative Council.
The member of Central Legislative Council was increased to 60 from 16.
Introduced a system of communal representation for Muslims by accepting the
concept of separate electorate .
Indians for the first time in Viceroys executive council. (Satyendra Prasad
Sinha, as the law member)
Government of India Act of 1919
This Act is also known as the Montague-Chelmsford Reforms.
The Central subjects were demarcated and separated from those of the Provinc
ial subjects.

The scheme of dual governance, Dyarchy , was introduced in the Provincial subje
cts.
Under dyarchy system, the provincial subjects were divided into two parts
tr
ansferred and reserved. On reserved subjects Governor was not responsible to the
Legislative council.
The Act introduced, for the first time, bicameralism at center.
Legislative Assembly with 140 members and Legislative council with 60 member
s.
Direct elections.
The Act also required that the three of the six members of the Viceroy s Execu
tive Council (other than Commander-in-Chief) were to be Indians.
Provided for the establishment of Public Service Commission.
Government of India Act of 1935
The Act provided for the establishment of an All-India Federation consisting
of the Provinces and the Princely States as units, though the envisaged federat
ion never came into being.
Three Lists The Act divided the powers between the Centre and the units in
items of three lists, namely the Federal List, the Provincial List and the Concu
rrent List.
The Federal List for the Centre consisted of 59 items, the Provincial List f
or the provinces consisted of 54 items and the Concurrent List for both consiste
d of 36 items
The residuary powers were vested with the Governor-General.
The Act abolished the Dyarchy in the Provinces and introduced Provincial Auto
nomy .
It provided for the adoption of Dyarchy at the Centre.
Introduced bicameralism in 6 out of 11 Provinces.
These six Provinces were Assam, Bengal, Bombay, Bihar, Madras and the United
Province.
Provided for the establishment of Federal Court.
Abolished the Council of India.
Indian Independence Act of 1947
It declared India as an Independent and Sovereign State.
Established responsible Governments at both the Centre and the Provinces.
Designated the Viceroy India and the provincial Governors as the Constitutio
nal (normal heads).
It assigned dual functions (Constituent and Legislative) to the Constituent
Assembly and declared this dominion legislature as a sovereign body.
Points to be noted
constitution of india
Laws made before Charter Act of 1833 were called Regulations and those made
after are called Acts.
Lord Warren Hastings created the office of District Collector in 1772, but j
udicial powers were separated from District collector later by Cornwalis.
From the powerful authorities of unchecked executives, the Indian administra
tion developed into a responsible government answerable to the legislature and p
eople.
The development of portfolio system and budget points to the separation of p
ower.
Lord Mayo s resolution on financial decentralization visualized the developmen
t of local self-government institutions in India (1870).
1882 Lord Ripon s resolution was hailed as the Magna Carta of local self governm
ent. He is regarded as the Father of local self-government in India .

1921 Railway Budget was separated from the General Budget.

From 1773 to 1858, the British tried for the centralization of power. It was
from the 1861 Councils act they shifted towards devolution of power with provin
ces.
1833 Charter act was the most important act before the act of 1909.
Till 1947, the Government of India functioned under the provisions of the 19
19 Act only. The provisions of 1935 Act relating to Federation and Dyarchy were
never implemented.
The Executive Council provided by the 1919 Act continued to advice the Vicer
oy till 1947. The modern executive (Council of Ministers) owes its legacy to the
executive council.
The Legislative Council and Assembly developed into Rajyasabha and Loksabha
after independence.

Constitutional Development During British Rule in India

: Mahesh Shantaram | Category : British India
This article throws light on the four major acts passed for constitutional devel
opment during British Rule in India.
The acts are: 1. Indian Councils Act of 1892 2. Morley-Minto Reforms, 1909 3. Re
forms Act of 1919 4. Government of India Act, 1935.
Advertisements:
Act # 1. Indian Councils Act of 1892:
By the Councils Act of 1861 a few Indians could be members of the Councils which
had the power of enacting laws only.
The Councils had not the power of controlling the executive or the right of inter
pellation.
Advertisements:
With the founding of the Indian National Congress in 1885 there was a persistent
demand for inclusion of larger number of Indians, on the basis of election, in
the Councils and other related rights and powers.
During the administration of Lord Dufferin a Commission was appointed to examine
the demands of the Congress. Pursuant to the report and recommendation of the C
ommission Lord Cross the then Secretary of State for India got the Indian Counci
ls Act of 1892 passed by the Parliament.
By the Act of 1892 the membership of the governor general s Council and of the pro
vincial councils was increased. But the members were to be nominated as before; t
he principle of election was not conceded. The only exception was that the Distr
ict Boards and the Municipal Boards which were allowed to nominate members to th
e Councils indirectly followed the principle of election, for, the members of th
e District Boards and the Municipal Boards were themselves elected representative
s.
The powers of the Councils were also enhanced in some measures. Formerly the mem
bers of the Councils could express their opinion in matters of taxation. But in,
the Act of 1892 they were allowed to discuss the government budget, and put que
stion to the Executive on certain matters of administration.
Advertisements:

Although the Councils Act of 1892 was an improvement upon the former Councils Ac
t, it did not meet the demands of the people. Majority of the members of the Cou
ncils were still nominated by the government. However, in the newly formed Centr
al Council the presence of leaders like Gopal Krishna Gokhale, Rashbehari Ghosh,
Asutosh Mukerjee, Surendranath Banerjee etc. made the discussions and deliberat
ions lively and if their criticism could not control the government, at least su
cceeded in influencing it to some extent.
Act # 2. Morley-Minto Reforms, 1909:
Intensity of Congress movement and persistent demand by Congress for constitution
al reforms, coupled with the fear complex generated in the British by the revolut
ionaries made the government introduce reforms of 1909. Morley was the Secretary
of State and Minto was the governor general and viceroy, hence the reforms of 1
909 are known as Morely-Minto reforms.
These reforms provided for the association of the qualified Indians with the gov
ernment to a greater extent in deciding public questions. One seat in the govern
or general s Executive Council was reserved for an Indian member. S. P. Sinha, lat
er Lord Sinha was the first Indian to attain that honour. The number of members
of the Executive Councils of Bombay and Madras was raised to four. Although ther
e was no provision for reserving any seat for any Indian in the Executive Counci
ls of the provinces, Raja Kishori Lai Goswami was appointed a member of the Exec
utive Council of Bengal.
The most striking feature of the Act of 1909 was the introduction of important c
hanges in the composition and functions of the Legislative Councils. The number o
f additional members of the Central Legislature was raised from sixteen to a max
imum of sixty of whom not more than 28 were to be officials.
The governor general was empowered to nominate three non-officials to represent
certain specified communities and could as well nominate two more members. The re
maining 27 seats were to be filled in by non-official elected members. The membe
rship of the Provincial Councils was also increased and whereas in the Central Le
gislature the nominated members constituted the majority, in the Provincial Legi
slatures provision was made so that elected members were in the majority. The Ac
t of 1909 gave separate electorate to the Muslims.
The Legislative Councils under the new Act were given the power to discuss the b
udget, to move resolutions, to discuss the problems of the country and adopt res
olutions on those matters. The government could, however reject any of such prop
osals or resolutions. About the native states, military department, foreign rela
tions, the Legislative Councils could not move any resolutions.
The Morley-Minto reforms had no doubt marked an important step in the constituti
onal progress of India, they did not give Parliamentary government to India. Thes
e naturally did not come upto the satisfaction of the Indian people and their di
scontent continued unabated.
Act # 3. Reforms Act of 1919:
Within five years of the introduction of the Morley-Minto Reforms the First Worl
d War broke out. Two schemes were put forward one by Gokhale and another by the
Congress and the Muslim League jointly. To satisfy the widespread demand of the I
ndians for constitutional reforms, as also in recognition of their loyal service
s to the British government during the First World War Mr. Edwin Montagu, Secret
ary of State for India made the famous announcement in the House of Commons on A
ugust 20, 1917 that the policy of His Majesty s Government with which the governmen
t of India are in complete accord, is that of the increasing association of Indi
ans in every branch of the administration and the gradual development of self-gov
erning institutions with a view to the progressive realisation of responsible go

vernment in India as an integral part of the British Empire .

Mr. Montagu came to India towards the end of 1917 to ascertain public opinion in
the country and after an extensive tour, published in April, 1918 the report on
Indian constitutional reforms commonly known as Montagu-Chelmsford Report. Mr.
Chelmsford was the governor general. The report formed the basis of the reforms
of 1919, which became effective in 1921.
The reforms Act of 1919 made a clear division of the functions of the Central an
d the Provincial Governments. The Centre was entrusted with defence, foreign aff
airs, principal railways and strategic communications, public debt, posts and te
legraphs, currency and coinage, commerce, civil and criminal laws, all-India ser
vices, certain research institutions etc.
The Provincial Governments were entrusted with the functions in respect of inter
nal law and order, administration of justice and jails, forest, irrigation, insp
ection of factories, supervision of labour, famine relief, land revenue administ
ration, local self government, education, medical department, public health and
sanitation, agriculture, public works, development of industries, excise and coop
eratives. The sources of incomes and heads of revenue of the Central and Provinci
al Governments were also delimited.
The governor general remained, as before, directly responsible to the Secretary
of State and the Parliament and not to the Indian Legislature. The Executive Cou
ncil of the governor general was enlarged. Although not provided for in the Act,
in practice three Indians were chosen as members of the Executive Council.
The Central Legislature was made bi-cameral, i.e., with two chambers: the Counci
l of State and the Legislative Assembly. The members of the Executive Council co
uld be members of one or the other house of the legislature, nominated by the go
vernor general. The Upper House, i.e., the Council of State was to have 60 membe
rs of whom 34 were to be elected and not more than 20 were to be officials.
The Lower House, i.e., the Legislative Assembly was to consist of 140 members, l
ater raised to 145. 105 were to be elected, 26 nominated officials and 14 nomina
ted non-officials. Election to both houses was direct and franchise was on high
property qualification. The life of the Upper House was five years and of the Lo
wer House three years. The Upper House was to have a President to be nominated b
y the governor general from among its members and the Lower House was to have a
President and a Deputy President. For the first four years the President of the
Lower House was to be appointed by the governor general and thereafter to be ele
cted by the House.
The Central Legislature had the power to make laws for the whole of British Indi
a. Prior permission of the governor general was necessary to introduce bills in
certain matters. If any bill recommended by the governor general be thrown out or
amended unsatisfactorily by either house, the governor general might certify the
bill as essential for the safety and tranquillity of British India in which cas
e the original bill would take effect.
The governor general was empowered to promulgate ordinance in case of emergency
which would remain in force for six months unless reduced into Act by the legisl
ature. There were votable and non-votable grants. Interest on loans and sinking
fund charges, salaries or pensions of -persons appointed by His Majesty, of the
Secretary of State etc., were non- votable giants.
Each province had a governor at the head of the executive government. He was app
ointed by His Majesty. The reforms Act of 1919 introduced a dual government or d
iarchy in the Provincial Executive. The governor with his Executive Council was i
nvested with authority over Reserved Subjects for the administration of which th

e he was responsible to the governor general and Whitehall and not to the legisl
ature.
The Transferred Subjects were placed in charge of the governor generals, and his
ministers who were to be appointed from among the provincial legislature. Impor
tant matters like law and order were included in the Reserved Subjects, whereas
education, health and sanitation, local self government etc., were included in t
he Transferred Subjects. It is evident that in the Transferred Subjects those sub
jects were included the mismanagement of which would not affect the British but
the people of the country.
As regards the power of the governor in matters of bills introduced in the Provin
cial Legislature there is similarity with the powers of the governor general. As
regards Reserved Subjects the power of the provincial legislature was strictly
limited. Insofar as the Transferred Subjects were concerned the Provincial legis
lature could cut down, or refuse any demand.
The Act of 1919 gave real responsibility to the representatives of the people al
though in a limited sphere of administration. Judged from truly democratic stand
point, the Act had certain defects both in the Central and Provincial Governmen
ts. Yet it must be agreed that the Act was an important step forward in the cons
titutional progress of India.
The Act of 1919 did not meet the demands of the Indians, since real power was al
l vested in the hands of the governor general and the governor. Demand for const
itutional reforms naturally continued. Greatest objection to the Act was that by
dividing the provincial administration into Reserved and Transferred halves, it g
ave power without responsibility into the hands of the governor general and the
governor and responsibility without power into the hands of the provincial legis
latures.
Act # 4. Government of India Act, 1935:
In 1927 that British government appointed a Commission under the Chairmanship of
Sir John Simon, earlier than provided in the Act of 1919 to report on the workin
g of the reforms of 1919. As all the seven members of the Commission were Britis
h, the Congress, the liberals and important section of the Muslims boycotted it
when it reached India in 1928. There was also a wider ground on which the Congre
ss took its stand.
It held that it was not in accord with the principle of self-determination to hav
e constitutional changes effected on the recommendations of a Commission appoint
ed by an outside authority and without any Indian member on it. Lord Irwin, the
then governor general wrote to Ramsay MacDonald, the British Prime Minister belo
nging to the Labour Party which had come to power in 1929 that after the publicat
ion of the report of the Simon Commission a conference of the representatives of
British India and of the Indian states should be held before final decisions we
re taken.
This suggestion was accepted. The report of the Commission was published in May,
1930 which recommended responsible government in the provinces, transfer of poli
ce, justice to ministers responsible to the legislature, legislatures to be form
ed on the basis of wider franchise. In Centre there was, however, to be complete
British authority and control. It also envisaged an all-India federation includ
ing the native States. The British government then summoned a Round Table Confer
ence in London in 1930. The second session met in 1931 and the third session in
1932. But no tangible results could be obtained.
However, on the basis of the report of the Simon Commission and discussions in t
he Round Table Conference, the British government drafted its proposals for the r
eform of the Indian constitution which were embodied in a White Paper published

in March, 1933. A Joint Committee of both the Houses of the Parliament examined
and approved of the proposals subject to certain modifications. On the report of
this Committee a bill was prepared and the Government of India Bill, 1935 was d
rafted, which became Act with minor modifications, on August 2, 1935.
The Act of 1935 embodied two main principles: first an all-India Federation comp
rising governors provinces, Chief Commissioners provinces and federating Indian nat
ive States, secondly, provincial autonomy with a government responsible to the el
ected legislature.
All powers hitherto before exercised by the Secretary of State were resumed by t
he Crown and redistributed between the Central and the Provincial Governments.
As regards the Indian States the powers of paramountcy were to be exercised henc
eforth by His Majesty s representative and not by the government of India. Importa
nt departments like foreign affairs, ecclesiastical affairs and defence were to
be administered by the governor general under the supervision of White Hall alon
e.
The governor general and the governors of provinces were invested with special p
owers in respect of functions transferred to the control of ministers for which
they were responsible to the British Parliament. Thus even under the Act of 1935
the constitutional status of India was that of dependency though it was gradual
ly gravitating towards that of a Dominion.
The Congress opposed the Act of 1935 on the ground that in it governor general a
nd the governors were given power of controlling and overriding the activities o
f the legislatures and the ministries. It was after Lord Linlithgow had given an
assurance that no interference would be made in day to day functioning of the go
vernments that the Congress agreed to work out only the self-government in provi
nces.
In the election held in 1937 the Congress got absolute majority in seven provinc
es, in Assam and Sind Congress obtained single majority. Out of eleven provinces
in as many as nine the Congress formed ministry whereas in Punjab and Bengal the
Muslim League came out with single majority.
The Constitution of India came into force on 26 January 1950. Since then, the da
y is celebrated as Republic Day. However, before 1950, 26 January was called Ind
ependence Day. Since 26 January 1930, it was the day on which thousands of peopl
e, in villages, in mohallas, in towns, in small and big groups would take the in
dependence pledge, committing themselves to the complete independence of India f
rom British rule. It was only fitting that the new republic should come into bei
ng on that day, marking from its very inception the continuity between the strug
gle for independence and the adoption of the Constitution that made India a Repu
blic.
The process of the evolution of the Constitution began many decades before 26 Ja
nuary 1950 and has continued unabated since. Its origins lie deeply embedded in
the struggle for independence from Britain and in the movements for responsible
and constitutional government in the princely states.
On 19 February 1946, the British government declared that they were sending a Ca
binet Mission to India to resolve the whole issue of freedom and constitution ma
king. The Cabinet Mission, which arrived in India on 24 March 1946, held prolong
ed discussions with Indian leaders. On 16 May 1946, having failed to secure an a
greement, it announced a scheme of its own. It recognized that the best way of s
etting up a constitution-making machinery would 'be by election based on adult f
ranchise; but any attempt to introduce such a step now would lead to a wholly un

acceptable delay in the formulation of the new constitution. Therefore, it was d

ecided that the newly-elected legislative assemblies of the provinces were to el
ect the members of the Constituent Assembly on the basis of one representative f
or roughly one million of the population. The Sikh and Muslim legislators were t
o elect their quota based on their population.
It was only after this process had been completed that the representatives of al
l the provinces and those of the princely states were to meet again to settle th
e Constitution of the Union. The Congress responded to the Cabinet Mission schem
e by pointing out that in its view the Constituent Assembly, once it came into b
eing, would be sovereign. It would have the right to accept or reject the Cabine
t Mission's proposals on specifics.
The Constituent Assembly was to have 389 members. Of these, 296 were to be from
British India and 93 from the princely Indian states. Initially, however, the Co
nstituent Assembly comprised only of members from British India. Elections of th
ese were held in July-August 1946. Of the 210 seats in the general category. Con
gress won 199. It also won 3 out of the 4 Sikh seats from Punjab. The Congress a
lso won 3 of the 78 Muslim seats and the 3 seats from Coorg, Ajmer-Merwara, and
Delhi. The total Congress tally was 208. The Muslim League won 73 out of the 78
Muslim seats.
At 11 a.m., on 9 December 1946, the Constituent Assembly of India began its firs
t session. For all practical purposes, the chronicle of independent India began
on that historic day. Independence was now a matter of dates. The real responsib
ility of deciding the constitutional framework within which the government and p
eople of India were to function had been transferred and assumed by the Indian p
eople with the convening of the Constituent Assembly. Only a coup d'etat could n
ow reverse this constitutional logic.
207 members attended the first session. The Muslim League, having failed to prev
ent the convening of the Assembly, now refused to join its deliberations. Conseq
uently, the seventy-six Muslim members of the League stayed away and the four Co
ngress Muslim members attended the session. On 11 December, Dr Rajendra Prasad w
as elected the permanent Chairman; an office later designated as President of th
e Assembly.
The third session was held from 28 April to 2 May 1947 and the League still did
not join. On 3 June, the Mountbatten Plan was announced which made it clear that
India was to be partitioned. With India becoming independent on 15 August 1947,
the Constituent Assembly became a sovereign body, and also doubled as the legis
lature for the new state. It was responsible for framing the Constitution as wel
l as making ordinary laws. The work was organized into five stages: first, commi
ttees were asked to present reports on basic issues; second, B.N. Rau, the const
itutional adviser, prepared an initial draft on the basis of the reports of the
reports of these committees and his own research into the constitutions of other
countries; third, the drafting committee, chaired by Dr Ambedkar presented a de
tailed draft constitution which was published for public discussion and comments
; fourth, the draft constitution was discussed and amendments proposed; fifth, a
nd lastly the constitution was adopted.