UPSC IAS exam preparation - India's Constitution - Lecture 1

Excellent study material for all civil services aspirants - being learning - Kar ke dikhayenge!

Landmarks in the Constitutional
development of India

[हिंदी में पढ़ें ]

---

1.0 INTRODUCTION

The triangular struggle between the European powers (French, Portuguese and British) finally saw the emergence of the British as winner. Since then many attempts were made to provide a guideline based the on which India would be administered. These Acts marked the beginning of a series of Acts and Reforms which finally led to the Government of India Act, 1935. Many provisions of the current Constitution have been taken from the GOI Act, 1935.  

The East India Company was established in England under a Charter by the British Queen Elizabeth. From being an organization mainly interested in exploring trade opportunities in India, it slowly started acquiring territory. 

1.1 Regulating Act of 1773

As the East India Company started acquiring more and more territories, the crown felt that the affairs of the Company should be regulated. As a result, the Regulating Act of 1773 was enacted. 

Salient Feature:

1. A government was set up in Calcutta Presidency consisting of a Governor-General and a Council of four members who exercised their authority jointly
2. the governments of the Presidencies of Bombay and Madras were subordinated to the government in Calcutta and 
3. it empowered the British Crown to establish a Supreme Court in Bengal with jurisdiction over Bengal, Bihar and Orissa

The legislative authority of the Governor-General and Council were subject to certain limitations: 

1. the rules and regulations made by them were not to be repugnant to the laws of England, 
2. they required registration by the Supreme Court which was given the power to veto them, 
3. there could be an appeal against them to the British Government and 
4. the Governor-General and the Council were under the duty to forward all such rules and regulations to England and the King-in-Council was competent to disapprove them at any time within two years.

1.2 The Charter Act of 1833

To make the legislative functions of the government distinct, the British Government enacted the Charter Act of 1833. It made substantial changes in the constitutional set up of India. The sole legislative power in India was vested in the Governor-General-in- Council. The Council was to consist of four members, of whom one was to be a Law Member, who could attend the Council meetings, as a matter of right, only when it was to perform legislative functions. The Council's functions were, thus, divided into two categories. When it performed executive functions, it consisted of the Governor-General and three members only. But, when it performed legislative functions, it consisted of the Governor-General and the four members. The Act laid the foundation of the future Central Legislature, also called Imperial Legislative Council.

1.3 The Charter Act of 1853

In order to strengthen the legislative machinery, the Charter Act of 1853 was enacted. The Act further extended the machinery of legislation. Under the new Act, the Governor-General's Council, when acting in its legislative capacity, was enlarged by the addition of six new members. Among these six members, one was to be an official representative from each of the four Provinces viz., Madras, Bombay, Bengal and North Western Provinces, and the Chief Justice and a judge of the Supreme Court. Besides, the Commander-in-Chief was also given an extraordinary membership. Thus, the strength of the Legislative Council became twelve.

1.4 The Act of 1858

After The First War of Independence in 1857, British Crown took over the rights of the Company's Government in India in its own hands. The Government Of India Act, 1858 was enacted which led to substantial changes in the administrative and constitutional set up.

Salient Features

1. it abolished the Board of Directors and the Board of Control and vested their powers in one of Her Majesty's Secretaries (a Minister in the British Cabinet), 
2. he was designated as the Secretary of State for India and was empowered to superintend, direct and control all the governmental affairs in India, 
3. the Secretary of State was to be assisted by a Council of India, 
4. the Governor-General and Governors of the Presidencies were to be appointed by the Crown and the members of their Councils by the Secretary of State-in-Council, 
5. Lieutenant Governors were to be appointed by the Governor-General, subject to the approval of Her Majesty, and appointments to the covenanted civil service were to be made through open competition with the assistance of the Civil Service Commission.

1.5 Indian Councils Act of 1861

In 1861, the British Government decided to expand the legislative Councils. This was done through the Indian Councils Act of 1861. The main provisions of the Act were as follows -

1. the Governor-General's Council was expanded for legislative purposes by adding 6-12 new members, to be nominated for two years, 
2. prior sanction of the Governor-General was essential for introducing some measures, 
3. every Act passed by the Legislature in India was subject to approval of Her Majesty acting through the Secretary of State-in-Council, 
4. the Governor-General was authorised to exercise a veto and issue ordinances in an emergency, and 
5. the strength of the Governor-General's Council for executive purposes was raised to five by addition of one more member.

1.6 Indian Councils Act of 1892

After formation of the Congress in 1885, Indians slowly started demanding more and more liberties from the British. This led to many piecemeal reforms. In 1892 another Act was passed to further expand and strengthen the legislative councils. The main features of the Act were as follows - 

1. the strength of the central and provincial legislative councils was expanded by adding 8-20 new members, 
2. two fifth of these new additional members were to be non-officials, 
3. The Governor-General-in-Council was authorized to make rules subject to the sanction of the Secretary of  State-in-Council, for discussion of annual financial statements and for asking questions.

1.7 Indian Councils Act of 1909

At the Surat Session in 1907, the Congress split into moderates and extremists. The revolutionaries, on the other hand, were resorting to terrorist activities to achieve the end of the alien rule. To pacify the discontent, the Indian Councils Act of 1909 was enacted. The salient features of the Act were: 

1. Legislative councils at both levels were expanded.

2. The majority of official members in the Central Legislative Council was maintained. 

3. It provided for non-official majority in the Provincial Legislatures. But then, the combined strength of official and nominated non-official members out-numbered the elected non-official members.

4. The Act enlarged the functions of the Legislative Councils. This Act

1. empowered the members to discuss the budget and move resolutions before it was finally approved, 
2. they were allowed to ask supplementary questions, to move resolutions on matters relating to loans to local bodies, additional grants and new taxes and 
3. it also extended to the members the right to discuss matters of public interest, adopt resolutions or demand a division on them, but the resolutions adopted by the House were not binding on the government.

5. One of the most important and unfortunate features of this Act was the introduction of separate and discriminatory electorate. The electorate, for returning the representatives to the councils, was divided on the basis of class, community and interests. For the provincial councils, the electorate provided for three categories viz., general, special and class (such as land owners and chambers of commerce). For the Central Council, one more category viz. Muslim, was added to it.

The qualification of the electorate based on income, property and education differed from community to community and region to region.

1.8 The Government of India Act of 1919

India's participation in World War I was secured by the British on the condition of giving more powers to the Indian people. After World War I, the GOI Act of 1919 was enacted.

The salient features of the Act were as follows: 

1. The main objectives of the Act were - (i) to provide for the increasing association of Indians in every branch of Indian administration, (ii) to develop self governing institutions with a view to the progressive realisation of responsible government in British India as an integral part of the empire, (iii) the time and manner of gradual advance towards this goal was to be decided by the British Parliament and (iv) accordingly, the Preamble suggested for a decentralised unitary form of government.
2. Distribution of Functions: The Act divided the functions of government into two categories: central and provincial. The provincial subjects were further subdivided into transferred and reserved. In the transferred subjects the Governors were to be assisted by the ministers responsible to the legislature, while in the reserved subjects the Governors were to be advised by the councillors who were not accountable to the  legislature. Thus, in the provinces a new form of government, dyarchy, was introduced. Dyarchy means dual set of governments, e.g. accountable and non-accountable.
3. Categories of Members: The Act provided for three categories of members: elected, nominated officials and nominated non-officials. The first category had about 70% members, the second had about 10% and the third category had about 20% members. There was a majority of the elected members.
4. The constituencies and franchise: The Act provided for restricted franchise and communal electorate.The voting qualification varied from province to province and within the same province, it differed from rural to urban areas. The constituencies were divided into two categories: general and special. The general constituencies were demarcated to return Hindus, Muslims, Christians, Anglo-Indians, Sikhs etc.Special constituencies were devised to give representation to land holders, universities, chambers of commerce etc.
5. Strength of Central Legislature: The Act introduced bicameral legislature at the centre comprising the Council of States and the Central Legislative Assembly. The former had 60 members, of whom 33 were to be elected and 27 to be nominated. The latter consisted of 145 members, of whom 104 were to be elected and 41 to be nominated,
6. Powers of Central Legislature: The Central Legislature was empowered to consider, pass or reject legislation on any of the subjects enumerated in the Central list. But, the Governor-General had the last word on any Bill passed by the Legislature. He possessed the power to prevent the consideration of a Bill or any of its part, on the plea that it was injurious to the peace and tranquillity of the country. He could disallow a question in the legislature. He had the power to withhold his assent to any Bill passed by the legislature without which it could not become an Act. He also had the power to disallow an adjournment motion or debate on any matter. He could enact a law, which he considered essential for the safety and tranquility of the empire even if the legislature had refused to pass it. The financial powers of the Central Legislature were also very much limited. The budget was to be divided into two categories, votable and non-votable. The votable items covered only one third of the total expenditure. Even in this sphere the Governor-General was empowered to restore any grant refused or reduced by the legislature, if in his opinion the demand was essential for the discharge of his responsibilities.
7. Powers of Provincial Legislatures: The strength of provincial legislatures differed from province to province. The provincial legislative councils were empowered to legislate on provincial subjects. However, the Act armed the Governor with the extensive powers of legislation. He could stop at any stage the consideration of a bill on the ground that it was injurious to the safety and peace of the province. He was empowered to return any bill to the house for reconsideration or reserve it for the consideration of the Governor-General who, in his turn, could reserve it for the opinion of the Crown. The Governor could also veto any bill passed by the Legislative Council. If the Council refused to introduce or failed to pass a bill relating to a reserved subject, the Governor, by his power of certification, could pass it on the plea that it was essential for the discharge of his responsibility. The Act gave the legislative councils some measure of control over the finance of the province but its financial powers were very much narrowed and circumscribed by the special powers of the Governor. The budget was divided into two parts. There were about 70% non-votable items on which only discussion could take place in the house. The remaining 30% of the budget included such demands for grants as could be reduced or rejected by the house, but the Governor retained the power to restore such demands by certifying that it was essential for the discharge of his responsibilities. In case of emergency the Governor had the power to sanction any expenditure on any item.
8. The Executive Council: It was responsible to the Secretary of State and not to the central legislature. The maximum limit imposed on the membership of the Governor-General's Executive Council was removed. Of the six members of the Governor-General's Executive Council, other than the Commander-in-Chief, three were required to be Indians. A pleader of the Indian High Court was also made eligible for appointment as the Law member.
9. Secretary of State for India: The control of the Secretary of State for India, over the central and provincial administration, was reduced.

1.9 The Government of India Act of 1935

The Indian opposition to the Simon Commission, the Gandhi-Irwin Pact, the Poona Pact and the round table conferences provided the background for The Government of India Act, 1935. This was the most comprehensive and detailed legislation that came out of the British Parliament for the administration of India. As mentioned earlier, many features in the present constitution have been borrowed from this Act. 

The salient features were - 

1. It was a comprehensive and detailed document. It consisted of 321 Sections and 10 Schedules. It described, in detail, not only the machinery of the centre but also of the units.
2. It, for the first time, introduced a federal form of polity in India. The units of federation fell into two categories: the (British) Indian provinces and the princely states (also known as native states).
3. The Act divided the functions of the government into three categories. The federal list contained 59 subjects, the provincial list had 54 subjects, while the concurrent list comprised of 36 subjects. While the federal and provincial governments had exclusive jurisdiction on the subjects in the federal and provincial lists respectively, both the federal and the provincial governments could legislate on the subjects in the concurrent list. It is interesting to note that the jurisdiction of the federal legislature did not extend to all the subjects mentioned in the federal list in the native states. According to the Act, the ruler of every state was required to sign an Instrument of Accession mentioning therein the extent to which it consented to surrender its authority to the federal government.
4. The Act also provided that such a federation could come into existence only if as many princely states (which were given the option to join or not to join the federation) would accept to join it as were entitled to one-half of the states' seats in the upper house of the federal legislature and having one half of the total states' population.
5. The proposed federal polity was to have a bicameral legislature at the centre. The upper house was to be called the Council of States. It was to consist of 260 members, of whom 156 were to represent the province and 104 the native states. Out of these 156 representatives of the provinces 150 were to be elected on communal lines. While the seats fixed for Hindus, Muslims and Sikhs were to be filled by direct elections, the seats reserved for Europeans, Anglo-Indian Community and Indian Christians were to be filled by an indirect method through an electoral college consisting of the members of their community in the provincial legislatures. The remaining six members were to be nominated by the Governor-General. It is interesting to note that the number of seats allotted to a state depended not on the strength of its population but on the relative rank and importance of that state. The Council of States was to be a permanent house. One-third of its members were to retire every third year. The lower house was to be called the Federal Assembly. It was to consist of 375 members, out of which 250 were to represent the provinces and 125 to represent the princely states. While the representatives of the princely states were to be nominated by their rulers, those representing the provinces were to be elected indirectly by the provincial legislative councils on communal lines. It is interesting to note that the seats allotted to the princely states were disproportionate to their population. Similarly, the seats allotted to the various communities in the provinces were also disproportionate to their population. The term of the Assembly was five years, but it could be dissolved earlier also.
6. The federal legislature could make laws on all the subjects included in the federal and the concurrent list.It was also empowered to legislate on provincial list in an emergency or when two or more provinces requested it to do so. However, its authority over princely states extended to those subjects only which were mentioned in their Instrument of Accession. No Bill could become an Act unless both the houses passed it and also approved by the Governor-General. In case of differences between the two houses, provision for a joint session of both the houses was made. The Governor-General had the authority to approve or disapprove any Bill passed by the federal legislature. Though both the houses exercised some control over the executive, by putting questions and passing adjournment motions and other resolutions, the Assembly alone could pass a vote of no confidence against the ministers. Both the houses possessed almost equal financial powers except that the Money Bill could be introduced only in the Assembly. But, the Act granted only limited financial powers to the federal legislature. The Act divided the budget into two parts. The first part covered 80% of the expenditure that was beyond the control of the federal legislature. The remaining 20% required the sanction of the legislature, but, the Governor-General was empowered to restore the reductions or sanction any amount rejected by the legislature.
7. The Act introduced dyarchy at the federal level. The federal subjects were divided into two categories: the reserved and the transferred. The reserved subjects included Defence; External Affairs; Ecclesiastical Affairs and Tribal Areas. In these matters the Governor General possessed discretionary powers i.e., he acted on the advice of the councillors to be appointed by him. He was not even required to consult the council of ministers in these matters. Subjects not included in the above list comprised the transferred subjects. These subjects were under the charge of ministers responsible to the federal legislature. But, there were certain matters wherein the Governor-General possessed the powers relating to individual judgment. These were the powers wherein the Governor-General was required to consult the council of ministers but was not bound by their advice.
8. The Act also provided for a Federal Court that was to consist of a Chief Justice and not more than six other judges. They were to be appointed by His Majesty and retired at the age of 65. They could be removed earlier also on charges of misbehavior or infirmity of mind or body by King of England on the recommendation of the Judicial Committee of the Privy Council. The Court had Original, Appellate and Advisory jurisdictions. It was also a Court of Record. But, the Court was not the highest Court of Appeal. Appeal could be filed against its judgments to the Privy Council of England.
9. The Act did away with the diarchy introduced by the Government of India Act, 1919 and introduced provincial autonomy in the provinces. Accordingly, the Governors were required ordinarily to act on the advice of council of ministers responsible to the provincial legislature except when they exercised their discretionary powers or powers of individual judgment. It is interesting to note that the Act did not enumerate the discretionary powers of the Governor. The Governor, at his discretion, decided as to what were his discretionary powers. Thus, the Governor could misuse his authority and make the provincial autonomy a mockery.
10. The Act provided for bicameral legislatures in six provinces and unicameral in five provinces. The lower house was to be called Legislative Assembly and the upper house, Legislative Council. The strength of the upper and lower houses varied from province to province. While the Act completely abolished the categories of the nominated members from Assemblies, it continued to have a few nominated members in the Councils. The Act suggested direct elections for both the houses. The basis of the allotment of the seats to various communities was on the notorious communal award, given by Ramsay Macdonald, as amended by Poona Pact. The basic principle of the scheme was that the seats reserved for a community were to be contested only by persons belonging to that community and they were to be elected by members of that community alone.
11. The provincial legislatures were empowered to legislate not only on the subjects included in the provincial list but also on those included in the concurrent list. But a provincial law on a concurrent subject held good in so far as it did not go against a federal law on the subject. In case of a conflict, the federal law was to prevail. There were certain limitations on the legislative powers of the provincial legislatures. In some cases prior permission of the                Governor-General was needed before a Bill could be introduced in a legislature. Bills relating to an Act of the British Parliament or that of the Governor-General or Governor or affecting the discretionary powers of the Governor fell in this category. Both the houses could exercise some control over the executive of the province by putting questions, supplementary questions or moving adjournment motions etc. The control of the Assembly, however, was substantial in the sense that it could pass a vote of censure against the council of ministers. The legislatures also enjoyed some limited financial powers. The budget of the province was divided into votable and non-votable categories. Votable items constituted 30% of the expenditure while non-votable items comprised 70% of the budget. Even in the votable category, the Governor could restore any reduction or cut passed-by the legislature, if he considered it necessary for efficient administration of the province Besides the above, the Act also provided for the abolition of India Council, separation of Burma from India, creation of Federal Railway, appointments of an Advocate General and a Financial Adviser. 

2.0 CONCLUSION

The conclusion of World War II saw many events in India which ultimately led to India's Independence. The main events were the Quit India Movement, The INA trials and the revolt by The Royal Indian Navy (RIN). A change of Government in England in 1945 also hastened the demise of the British Empire in India.

The Cripps Mission, the Cabinet Mission Plan, The Mountbatten plan and The Indian Independence Act of 1947 deserve a special mention in this context.

Join PT courses | PT Youtube | PT App | Contribute |  Testimonials