HISTORY PROJECT

HISTORY PROJECT
CONSTITUTIONAL DEVELOPMENT OF INDIA (1773-1947)
Submitted by
ADITI SINGH- 15010223002
ATHARVA UPADHYAY- 15010223015
PRANAV BHASKAR TIWARI- 15010223040
SHATAKSHI SINGH- 15010223049
Division C
BATCH 2015-2020
of
Symbiosis Law School, NOIDA
Symbiosis International University, PUNE

In
MARCH, 2016
Under the guidance of
PROF. ANUJ KAUSHAL
 C E R T IF IC AT E
The Project entitled Constitutional Development in India from 1773-1947
submitted to the Symbiosis Law School, NOIDA for HISTORY OF LAW AND
LEGAL INSTITUTIONS IN MEDIEVAL AND MODERN INDIA as part of
internal assessment is based on my original work carried out under the guidance
of Prof. Anuj Kaushal from December to March16. The research work has not
been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has
been duly acknowledged.

I understand that I myself could be held responsible and accountable for

plagiarism, if any, detected later on.

Signature of the candidate-

Aditi Singh-

Atharva Upadhyay-

Pranav Bhaskar tiwari-

Shatakshi Singh-

Date:
 TABLE OF CONTENTS

1. Charter of India Act 1793, 1813 1833 1853

2. Government of India Act 1858....

3. Indian Councils Act 1861, 1892, 1909.

4. Government of India Act1919,1935

5. Indian Independence Act 1947.

 CHARTER ACTS OF 1793 and 1813
The charter acts issued to EIC bestowed some commercial privileges ( like trading for 20
years each) and at the same time with certain amendments done in each act marked its ingress
into Indian political and administrative setup. Starting with the charter act of 1773 (which
was an indirect control of British Parliament over EIC due to its misgovernance) and then
moving to Pittss India Act of 1784 issued by sir William Pitts which was seen as the
establishment of the system of dual control of India by both the governments came into force.
It was now when the political functions were differentiated from its commercial activities.
The concept of permanent settlement was established with a permanent administrative and
judicial system for governing the new kingdom. Many more political reforms were made
however this act was a failure because if we talk in terms of removing monopoly of EIC the
line of difference between the Parliaments and EICs function was not yet clear. Thus further
three more charter acts were formulated in the year 1793, 1813 and 1833.

The act of 1793 was remarkable in a way that the act recognized companys political
reforms and clearly established, acquisition of sovereignty is on behalf of the crown and
not in its own right. Moreover, The charter act of 1813, for the first time explicitly defined
the constitutional position of the British territories in India.

The features of the respective acts have been laid down herein , thereby
making an analysis of its transformation from an economic into political
entity.

Features of the Charter Act Of 1793

Governor general : Lord Cornwallis ; Secretary of state :

Henry Dundas
The act not just made economic reforms but made various political
reforms as well. When talked in terms of economic reforms the
company was allowed to increase its dividend by 10% but at the
same time was suppose to pay annually a sum of 5 lakhs British
pounds to the parliament. Where there economic reforms were being
penned, there were some administrative reforms being laid down as
well that gave innumerable powers to the governor general.

Where governor general had all power over its presidencies; he was also empowered
with the authority to disregard majority in certain special cases in order to have his
say. This was highly vague in the previous two acts where in 1773, the governor
general had no effective power and his lack of veto led to disputes between the
Governor General and the councillors.
 Moreover, senior officials were forbidden from leaving India without permission. If
a high official departed from India without permission, it was to be treated as
resignation.
This act reorganized the courts and redefined their jurisdictions. The revenue
administration was divorced from the judiciary functions and this led to disappearing
of the Maal Adalats.

Thus we see the political reforms made in this act were more clear and considerably better
than the previous two. Though the vagueness in the power of the governor general was over
yet entrusting extensive power from no power in the hands of the governor general was
invitation to another authoritative rule in India.

Features of the Charter Act of 1813

Governor general : Francis Rawdon-Hastings ; Secretary of State : Viscount

Sidmouth
The charter act of 1813 for the first time explicitly defined the constitutional position of
British territories in India. Before one gets to the political reforms
so introduced by these reforms it is necessary to peep into the
background which is pretty interesting.

Background of the Act:

By 1813 much deliberations were made regarding the commercial
privileges of the company. When Napoleon Bonaparte had
introduced the Berlin Decree of 1806, and Milan Decree of 1807,
which forbade the import of British goods into the European
companies this affected the trade monopoly of Britishers. As a
result, Britishers demanded a share in the trade with the India to
compensate their loss. Taking the advantage of the situation wherein the extent of companys
territory in India had so much expanded that it was considered to be impossible for it to
control it commercially and politically. However EIC claimed that its commercial and
political authority cannot be separated. When later the issue got resolved the British
merchants were allowed to trade with India, but under a strict licensing system. Finally, the
charter Act of 1813 ended the trade monopoly in India, yet not with china and their tea trade.

Now, moving to the reforms it introduced,

This act also made provisions to grant permission to the persons who wished to go to
India for promoting moral and religious improvements. This made some leverage in
movements of the officials.
One of the most important reforms to be seen here is that there was also a provision
that Company should invest Rs. 1 Lakh every year on the education of Indians. This
 was the first step towards acceptance of the principle of State responsibility for
education. This was a positive step taken up by the company in the sphere of
education and probably the first. However, it is important the look over the motive of
the company. Perhaps the main motive of the government and the company wanted to
enhance their trade and the execution of THEIR laws to be implemented easily.
In terms of land reforms, the company levied taxes and punished them who did not
pay.

Thus, we see that this clause was one of the most significant steps taken by the British
Government with regard to India. There was now a clear cut difference between the
commercial and political functions. Apart from that it was seen as a little pro-Indian
charter for it introduced systems that were luring enough, the best of all being ending
companys monopoly.
 CHARTER ACT 1833:

The Charter Act of 1833 marked the beginning of a system of government for all India.
Later, it adopted a representative character, which distinguished it fundamentally from the
earlier rule of despotism. It marked the beginning of the Indianisation in services. It also tried
to separate and decentralize executive and legislative functions.
The Charter Act of 1833 renewed the East India Companys privileges for another twenty
years. The Charter Act of 1833 like its predecessor was the outcome of much enquiry and
consideration. It was produced when white and liberal principles were politically dominant in
England. Macaulay was the Secretary of the Board of control and James Mill, a disciple of
Bentham, was examiner of correspondence at the India a House. It was as much in the logic
of history as in consonance with the zeitgeist. The ideal of laissez faire was the weapon with
which newborn western capitalism dismantled the relics of feudal economy at home and
raised abroad its own edifice of international economics. By this act the monopoly of the East
India Company had been put an end to and private traders were or free merchants were
permitted under special license to trade lawfully.

The Industrial Revolution in Britain rendered the old Mercantilist policy of the British
unprofitable. Britain became a manufacturer of cotton and other factory goods on a large
scale and she required foreign markets for their consumption. But the decrees of Napoleon
against British commerce and the closure of the continental ports frustrated the quest for
foreign markets and the British industrialists were obliged to explore new markets in British
colonies. A vast country like India naturally provided great scope for the realisation of their
ambition for, besides constituting a large market for the manufactured goods and capital;
India could supply the much needed raw materials. The British power in India after 1800 as
no more than an accessory, an instrument for ensuring the necessary conditions of law and
order by which the potentially vast India market could be conquered for the British
industry.There was a tremendous political change in India since 1813 which imposed on the
company political responsibilities incompatible with maintenance of its commercial
character. The annexation of the peshwas dominions, of Assam and of a part of Erma and the
extension of British supremacy over Rajputava the company became the defacto paramount
power in India. Wallesleys dream of converting the British Empire in India into the British
Empire in India into the British Empire of India.was realised within less than a decade
through diplomacy and the use of arms.

The age of utilitarianism was another cause to pass the Act of 1833. Utilitarian influence
expressed themselves more distinctly in the field of cultural and social policy than in the
constitutional reforms. Bentinck who adopted utilitarian views gave great attention to
social policy.
 CHARTER ACT 1853:

After twenty years of the Acts of 1833, the time approached for the renewal of the Company's
Charter. With the passage of time there was a growing demand that the double Governments
of the company in England should be ended. It has also been declared that the Court of
Directors and the Board of control only resulted in the unnecessary delay in the business
transactions and led to undue expenditure. An application was sent to the presidencies of
India to appoint a secretary of state with a Council. The Secretary of state would be
entrusted to handle all business relating to India.

It had been ideated that the existing legislative system under the Charter Act of 1833 was
completely inadequate. Moreover after the Acts of 1833 there were territorial and the political
changes in India. Sind and Punjab had been annexed to the company's territory. A number of
Indian States except Pegu in Burma became victim of Dalhousie's policy of annexation.
Gradually there were the demands of the decentralization of power and for giving the Indian
people the shares in the administration. It was under these circumstances that the British
parliament decided to renew the charter of the company in the year 1853. The company in the
preceding year appointed two Committees to look into the affairs of the company. On the
basis of their reports the charters Act of 1853 was framed and passed.

The charter Acts of 1853 renewed the powers of the company and allowed it to retain
possessions of Indian territories. However this Charter Act did not grant commercial
privileges for the specific period of time. Rather it did not mention any time period. The
charter Act of 1853 provided that the salaries of the members of the Boards of controls, its
Secretary and other officers would be fixed by the British government but would be paid by
the company. The number of the members of the court of directors was reduced from 24 to 18
out of which 6 were to be nominated by the Crown. By the Act of 1853, the Court of
directors was disposes of their power of patronage and the high posts were made subjects to
the competitive examination, s where no discriminations would be made on the basis of caste,
creed and religion. A committee with Maccualay as its president was appointed in the year
1854 to enforce his scheme. The Court of directors was empowered to constitute a new
Presidency. The court of Directors, by the Act also could alter the boundaries of the existing
states and incorporate the newly acquired state. This provision was made uses to create a
separate Lieutenant Governorship for Punjab in the years 1859. The Act also empowered the
crown to appoint a Law commission in England to examine the reports and the drafts of the
Indian law commission.

In India the separation of the executive and the legislative functions was carried a step further
by the provision of the additional members for the purpose of legislation. The Law Member
was made the full member of the governor General's Executive council. This council while
sitting in its legislative capacity was enlarged by the addition of the six members, namely the
chief Justice and others judge of Calcutta supreme Court and four representative one each
from Bengal, madras, Bombay and the north western provinces. The provincial
representatives were to be the civil servants of the company. The governor General was
empowered to appoint two more civil servants to the Council. It had been declared by the Act
that discussion sins the Council became oral instead of writing. Bills were referred to the
Select Committees instead to a single s member ands legislative business was conducted in
public instead of the secret.

The charter Act of 1853 was a compromise between the two conflicting views. Those who
favored the retentions of the Company's territorial authority were satisfied bys the provisions
of the charter Act of 1853. The newly formed Legislative council threatened to alter the
whole structures of the Indian government. Thus the Legislative Council denied the
provisions made by the Charter Acts of 1853. The glaring defect of the Charters Act of 1853
was the continued exclusion of the people of the land with the work of legislation. However
the charter act of 1853, strengthen the oppressive policy of the British Government in India.
GOVERNMENT OF INDIA ACT 1858:-

Indias first war of Independence, which was called the Sepoy Mutiny by the British
,proved to be the last nail in the coffin of Company rule in India. Apart from many social and
military causes, the war or mutiny was a direct result of the Doctrine of lapse policy of
ruthless annexation by Lord Dalhousie. The mutiny was suppressed. But it sent ripples of
fear to London, and convinced the British that administration of the India must be taken over
by the Crown. The British prime Minister, Palmerstone had introduced a Bill in 1858 in
the parliament for the transfer of Government of India to the Crown. However, before
this bill was to be passed, Palmerstone was forced to resign on another issue. Later Lord
Stanley introduced another bill which was originally titled as An Act for the Better
Government of India and it was passed on August 2, 1858. It is called Government of India
Act 1858 or 1858 Act.

Government of India Act 1858 provided that India was to be governed directly and in the
name of the crown. This act abolished the company rule, abolished the Court of directors and
abolished the Board of control. The act provided the Crown will govern India directly
through a Secretary of State for India, who was to exercise the powers which were being
enjoyed by the Court of Directors and Board of control.

The right of appointment to important offices in India was vested either in the crown or in the
secretary of state of India-in-Council. This act abolished the Dual Government introduced by
the Pitts India act. The administration of the country was now highly centralized. All civil,
military and executive powers vested in the Governor in council, who in turn was responsible
to Secretary of State. There was a provision of creation of an Indian Civil Service under the
control of the Secretary of State. Year 1861, marked the passing of 3 acts. These acts were
Indian Civil Services Act 1861, Indian Councils Act 1861 and Indian High courts Act 1861.
 Indian Councils Act of 1861, 1892 and 1909

After the great revolt of 1857, the British Government felt the necessity of seeking the
cooperation of the Indians in the administration of their country. In pursuance of this policy
of association, three acts were enacted by the British Parliament in 1861, 1892 and 1909. The
Indian Councils Act of 1861 is an important landmark in the constitutional and political
history of India.

On May 25 a measure became law which is not untruthfully described by the Times as "one
of the most momentous steps which parliament has ever been asked to sanction in Indian
affairs."1
This act marks an epoch in British Indian policy. In the debate on its second reading in the
lords, the position was definitely accepted by Lord Morley that administrative
1. efficiency is no longer to be taken as the fundamental principle and criterion of
English rule in India;
2. efficiency must be supplemented by political concessions.

The American ideal of colonial policy, which is: the development of the capacity for self-
government by the natives, through active participation in representative institutions, is
henceforth to stand along with the British tradition of administrative efficiency as the guide-
post of Indian policy. It has been rightly viewed as "the
first step down that slippery slope
at the bottom of which lies a parliamentary government for India."

Features of the Indian Council Acts have been briefed below with a comparative approach
wherever applicable.

1
Shepard, W. J.. (1909). The Indian Councils Act. The American Political Science Review, 3(4), 552556.
http://doi.org/10.2307/1944687
 Features of the Act of 1861
Viceroy- Lord Earl Canning Secretary of State - Sir Charles Wood

1. It made a beginning of representative institutions by associating Indians with the law-

making process. It thus provided that the viceroy should nominate some Indians as non-
official members of his expanded council. In 1862, Lord Canning, the then viceroy,
nominated three Indians to his legislative councilthe Raja of Benaras, the Maharaja of
Patiala and Sir Dinkar Rao.

2. It initiated the process of decentralisation by restoring the legislative powers to the

Bombay and Madras Presidencies. It thus reversed the centralising tendency that started from
the Regulating act of 1773 and reached its climax under the Charter Act of 1833. This policy
of legislative devolution resulted in the grant of almost complete internal autonomy to the
provinces in1937.

3. It also provided for the establishment of new legislative councils for Bengal, North-
Western Frontier Province (NW/FP) and Punjab, which were established in 1862, 1866 and
1897 respectively.

4. It empowered the Viceroy to make rules and orders for the more convenient transaction of
business in the council. It also gave recognition to the 'portfolio' system introduced by Lord
Canning in 1859. Under this, a member of the Viceroy's council was made in-charge of one
or more departments of the government and was authorised to issue final orders on behalf of
the council on matters of his department(s).

5. It empowered the Viceroy to issue ordinances, without the concurrence of the legislative
council, during an emergency. The life of such an ordinance was six months.
 Features of the Act of 1892
Viceroy- Henry C.K. Petty Secretary of State- Sir R.A. Cross

1. It increased the number of additional (non-official) members in the Central and provincial
legislative councils, but maintained the official majority in them.

2. It increased the functions of legislative councils and gave them the power of discussing the
budgets and addressing questions to the executive.

3. It provided for the nomination of some non-official members of the

Central Legislative Council by the viceroy on the recommendation of the provincial

legislative councils and the Bengal Chamber of Commerce, and
That of the Provincial legislative councils by the Governors on the recommendation
of the district boards, municipalities, universities, trade associations, zamindars and
chambers. `The act made a limited and indirect provision for the use of election in
filling up some of the non-official seats both in the Central and provincial legislative
councils. The word "election" was, however, not used in the act. The process was
described as nomination made on the recommendation of certain bodies
 Features of the Act of 19092
This Act is also known as Morley-Minto Reforms

Viceroy- Lord Minto Secretary of State- Lord Morley

1. It considerably increased the size of the legislative councils, both Central and provincial.
The number of members in the Central Legislative Council was raised from 16 to 60. The
number of members in the provincial legislative councils was not uniform.

2. It retained official majority in the Central Legislative Council but allowed the provincial
legislative councils to have nonofficial majority.

3. It enlarged the deliberative functions of the legislative councils at both the levels. For
example, members were allowed to ask supplementary questions, move resolutions on the
budget, and so on.

4. It provided (for the first time) for the association of Indians with the executive Councils of
the Viceroy and Governors. Satyendra Prasad Sinha became the first Indian to join the
Viceroy's Executive Council. He was appointed as the law member.

5. It introduced a system of Communal Representation For Muslims by accepting the

concept of 'Separate Electorate'. Under this, the Muslim members were to be elected only
by Muslim voters.
Thus, the Act 'legalised communalism' and Lord Minto came to be known
as the Father of Communal Electorate.
6. It also provided for the separate representation of presidency corporations, chambers of
commerce, universities etc.

2
Ilbert, C.. (1911). The Indian Councils Act, 1909. Journal of the Society of Comparative Legislation,11(2),
243254. Retrieved from http://www.jstor.org/stable/752520
 GOVERNMENT OF INDIA ACT OF 1919 AND 1935

After acertain period of time, the modus operandi of the British started to alarm the Indians
who felt that they were out to destroy their culture and their way of life. This gave rise to the
idealof Indian nationalism. This proved a major uniting factor and the emergence of leaders
like Gandhi and Nehru and of organisations like the Home Rule League and the Indian
National Congress. Due to this the British had to make a show of caring for Indians. This
translated into steps like the Government of India Act of 1919 which provided for a
bicameral legislature at the centre, the council of state and the legislative assembly
After this the Government of India Act was enacted in 1935. This was to be the working
Constitution of India under the British rule. This Act contained features which were supposed
to provide for increased participation of Indians in decision- making but in reality did nothing
to take India towards the goal of eventually becoming an independent nation

SALIENT FEATURES OF GOVERNMENT OF INDIA ACT 1919

Secretary of state: Edward Samuel Montague Viceroy: Lord Chelmsford

Provincial GovernmentIntroduction of Dyarchy:

Executive:

(i) Dyarchy, i.e., rule of twoexecutive councillors and popular ministerswas introduced.
The governor was to be the executive head in the province.

(ii) Subjects were divided into two lists: reserved which included subjects such as law and
order, finance, land revenue, irrigation, etc., and transferred subjects such as education,
health, local government, industry, agriculture, excise, etc.
 (iii) The ministers were to be responsible to the legislature and had to resign if a no-
confidence motion was passed against them by the legislature, while the executive councilors
were not to be responsible to the legislature.

(v) The secretary of state and the governor-general could interfere in respect of reserved
subjects while in respect of the transferred subjects; the scope for their interference was
restricted.

Legislature:

(i) Provincial Legislative Councils were further expanded70% of the members were to be
elected. The system of communal and class electorates was further consolidated.Women were
also given the right to vote.

Executive:

(i) The governor-general was to be the chief executive authority.

(ii) There were to be two lists for administrationcentral and provincial.

(iii) In the viceroys executive council of 8, three were to be Indians.

(iv) The governor-general retained full control over the reserved subjects in the provinces.

Legislature:

(i) A bicameral arrangement was introduced. The lower house or Central Legislative
Assembly would consist of 144 members (41 nominated and 103 elected52 General, 30
Muslims, 2 Sikhs, 20 Special) and the upper house or Council of State would have 60
members (26 nominated and 34 elected20 General, 10 Muslims, 3 Europeans and 1 Sikh).

(ii) The Council of State had tenure of 5 years and had only male members, while the Central
Legislative Assembly had tenure of 3 years.

(iv) Some Indians found their way into important committees including finance.

On the home government (in Britain) front, the Government of India Act, 1919 made an
important change the secretary of state was henceforth to be paid out of the British
exchequer.
 SALIENT FEATURES OF GOVERNMENT OF INDIA ACT 1935

Secreatary of State: Sir Samuel Hoare

This Act established a Federation of India made up of British Indian Provinces (Governors
Province and Commissioners Province) and Indian states The Federation could not be
established until:

The Federal Executive:

Dyarchy, rejected. Defence, External Affairs, Ecclesiastical Affairs and the administration of
the Tribal Areas were reserved in the hands of the Governor-General to be administered by
him with the assistance of maximum of three Councilors to be appointed by him.

The other Federal subjects would be administered by the Governor-General with the
assistance and advice of a Council of Ministers (not more than ten)

The Federal Legislature:

The Federal Legislature constituted of two Houses, the Council of State and the Federal
Assembly. The Council of state was to be a permanent body with one-third of its membership
being vacated and renewed triennially. It was to consist of 156 elected members of British
India and not more than 104 from the Indian states (to be nominated by the rulers concerned).

The Federal Assembly whose duration was fixed for five years was to consist of 250
representatives of British India and not more than 125 members from the Indian states. The
members to the Federal Assembly were to be elected indirectly by the members of the
Provincial Legislative Assemblies on the system of proportional representation with the
single transferable vote system

The main feature of the Act of 1935 was the provision of the responsible Government with
safeguards. The Act made the Governor-General the pivot of the entire constitution

Provincial Autonomy:
As in the case of the Federation the Executive authority of a province was vested in a
Governor appointed to represent the crown in the province. His position was largely modeled
on that of the Governor-General. The administration of the Provincial affairs was to be
ordinarily carried on by a council of ministers appointed by the Governor from among the
elected members of the Provincial Legislature and responsible to them only. The ministers
held office so long as they enjoyed the pleasure of the Governor.

Provincial Legislature:
The constitution of the Provincial Legislature varied from province to province. In all
Provincial Assemblies all members were directly elected by the people.There were 50 seats in
North-West Frontier Province, 60 each in Orissa and Sindh, 108 in Assam, 112 in Central
Provinces, 152 in Bihar, 175 each in the Punjab and Bombay, 215 in Madras, 228 in the
United Provinces and 250 in Bengal.

There was a separatist system of representation by religious communities and other groups.

INDIAN INDEPENDENCE ACT 1947

The Indian Independence Act was based upon the Mountbatten plan of 3rd June 1947 and
was passed by the British parliament on July 5, 1947. It received royal assent on July 18,
1947.

SALIENT FEATURES OF THE ACT

Governor General: Lord Mountbatten

(i) It provided for two dominion states : India and Pakistan

(ii) The boundaries between the two dominion states were to be determined by a Boundary
Commission which was headed by Sir Cyril Radcliff.
 (iii) It provided for partition of Punjab & Bengal and separate boundary commissions to
demarcate the boundaries between them. Pakistan was to comprise the West Punjab, East
Bengal, Territories of the Sind, North West frontier provinces, Syllhat divisions of Assam,
Bhawalpur, khairpur, Baluchistan and 8 other princely states of Baluchistan.

(iv) The authority of the British Crown over the princely states ceased and they were free to
join either India or Pakistan or remain independent.

(v) Both the dominions of India and Pakistan were to have Governor Generals to be
appointed by the British King. The act also provided for a common Governor general if both
of them agreed.

(vi) The constituent assemblies of both the states were free to make constitutions of their
respective countries.

(vii) For the time being till the constitution was made, both of them would be governed in
accordance with the Government of India act 1935.

(viii) Any modification or omission could be done by the Governor General. British
Government would not continue any control on any dominion.

(ix) The Governor general was vested with adequate powers until March 1948 to issue orders
for effective implementation of the provisions of the Indian independence act 1947.

(x)Those civil servants who had been appointed before the August 15, 1947, continued
service with same privileges.