Constitution of India (Historical Background)Notes

‘In 1600 Britishners came to india as traders in the form of east india company. This company started establishing trading centres & factories at several places in india with the consent of local rulers.The charter of 1726 was brought for legislative power. The company henceforth threw off the mask of traders and appeared in the true garb of rulers.

Begining of the British rule Britishers started interference in administration of civil justice and collection of Revenue. Then many acts and regulations passed before independence of India.

2. 1765 to 1858- Beginning of the British Rule

(a) Regulating Act of 1773-

It asserted for the first time the right of Parliament to regulate the affairs of the East India Company.

(i) It changed the Constitution of the Company in England ( Home Govt.)
(ii) It recognized the Govt. of Calcutta in form of Govt. in India. It brought the Presidencies of Bombay and Madras to some extent under the control of the Governor- General of Bengal.
(iii) Legislative Power- The Act empowered the Governor- General and council to make rules, ordinances and regulations for the good Governance of the company’s settlement.
(iv) It established a Supreme Court at Calcutta.

(b) The Act of Settlement 1781-

To remove the defects of the Act 1773

(i) It exempted the actions of the public servants of the company done in official capacity from the jurisdiction of the Supreme Court.
(ii) It tried to settle the question of jurisdiction of the court over servants of the company and the native inhabitants.
(iii) It made it clear as to what law to be applied by the Supreme Court.
(iv) The Act recognised and confirmed the appellate jurisdiction of the Governor- General- in – Council in cases decided by the Muffassil Courts.
(v) It empowered the Governor-General – in Council to frame regulations for the provincial Courts and Councils also.

(c) The Pitts India Act, 1784.-

The Act distinguished between commercial and political functions of Company.

(d) The Charter Act of 1813-

It took away the exclusive right of the company to trade in India. The Indian trade was thrown open to all British merchants. By the charter of 1813 the British Crown asserted a greater control over the power of the councils.

(e) The Charter Act 1833-

This Act vested the all legislative power in the governor general in Council. This is also called as Act of Parliament.

(f) The Charter Act of 1853 –

This was enacted to separate the legislative machinery from the executive. The outcome of this Charter Act resulted the mutiny of 1857 and This brought the career of the East India Company to end. we can say this was the first war of independence against Company rule.

3. 1858 to 1919 – End of Company’s Rule

(a) The Government of India Act, 1858-

For better government, the powers of Company were transferred to government of India. Its members were elected for Council of India. The Council was the advisory board.

(b) Indian Council Act of 1861-

To provide framework of government this was also suffered from any defects. Because it gave unlimited power to the governor – general and due to which the political situation was very explosive.

Than began Indian National Movement from 1861 to 1892

(c) The Indian Council act 1892-

This Act laid down the foundation of the representative government but it also suffered from many defects.

(d) Morley Minto Reforms , The Indian Council Act of 1909-

By this Act the size of Legislative Council was increased. Members of Council were raised from 16 to 60. Powers of Legislative Council both Central and provincial were also increased.'(1)

4. 1919 to 1947 – Introduction of Self- Government

(a) ‘The Government of India Act 1919-

This Act failed to establish parliamentary system of government in the country.

Main features of the 1919 Act-

(i) The Declaration – It promised a responsible government to the Indians.
(ii)The Act introduced a system of Dyarchy in the provinces. In matter of legislation subjects were divided into Central and provincial. The provincial subjects were divided into reserved and transferred. Governor was not responsible to the legislature council on reserved subjects.
(iii) Central government – The Central Government remained responsible to the British Parliament through the secretary of State. The central legislature was to have a bicameral legislature in the form of Legislative Assembly with 140 members and legislative council with 60 members.
(iv) Structure of Government to remain unitary-

The Government of India remained a unitary and centralised government with the Governor- General in Council as the key-stone of the whole constitutional edifice.

Shortcoming of Act of 1919′- Non fulfillment of the demand for responsible government and the failure of dyarchy'(2)

(b) ‘The Government of India Act, 1935,

The Government of India Act, 1935 is regarded as the second milestone to a full responsible Government. It was a lengthy document, having 321 sections with 10 schedules. The basic features of the Act, were the introduction of partial responsibility at the Centre, Provincial autonomy and an All India Federation.

(i) The All India Federation.-

The act provided for the establishment of an All India Federation comprising of the British India Provinces, though the Federation envisaged by the Act never came into being.

(ii) Dyarchy at the Centre.-

The Act of 1935 abolished dyarchy at the Provincial level and introduced it at the Centre. The Executive Authority of the centre was vested in the Governor- General. The Federal subjects were divided into two categories – the ‘reserved’ and the ‘transferred’.(i) the reserved subjects were to be administered by the Governor -General in his discretion with the help of councillors appointed by him who are not responsible to the Legislature.(ii) the transferred subjects were to be administered by the Governor – General who was to act on the advice of the Council of Ministers who were responsible to the Legislature.

(iii) Provincial Autonomy,-

The important feature of the act was that it marked the beginning of Provincial Autonomy. It was definitely an advance on the act of 1919. The act divided legislative power between the Provincial and Central legislatures.

(iv) Federal legislature.-

The federal legislature.- The Federal legislature was to consist of two houses the Council of states and the Legislative Assembly.

(v) Provincial Government. –

The provincial Executive was to consist of the Governor and a Council of Ministers to advise him. The Governor was the head of the executive. Three Types of power were given to the Governor (a)Discretionary (b) Powers exercised in his Individual judgement (c) Powers to be exercised on the advice of the ministers. But in regard to matters involving his special responsibility he had right to override the advice given by the ministers.

(vi) Provincial legislatures.-

After this act the legislatures of Bombay, Bengal, Madras, Bihar, Assam and the United provinces were made bicameral (two houses) and in other five provinces unicameral.

(Vii) Distribution of legislative power between the centre and the provinces.-

The act made a three – fold division of power between the centre and the provinces- Federal List- consisted with 59 subjects, The federal legislature had exclusive power of legislation over the subjects mentioned in the federal list. Provincial list – consisted with 54 subjects, The Provincial legislature had exclusive jurisdiction to make laws on the subjects mentioned in provincial list and Concurrent list – consisted with 26 subjects, The federal and provincial legislatures were to have concurrent powers to legislate on subjects mentioned in the concurrent list.

(viii) The Federal Court.-

The Act established a federal court.The federal court had three kinds of Jurisdiction original, appellate and advisory.

The Government of India Act,was greatly criticized by almost all the parties of India. The act came into force in regard to the provinces in April, 1937 but the central government continued to be governed in accordance with the provisions of the Government of India Act 1919, with minor amendments. The election took place and popular Ministries came into office in the provinces but they lasted only for two years.

In 1939 the Second World War broke out in Europe. The British government declared India as a belligerent country at war with Germany. This was done without consulting Indian leaders and the Indian legislatures. Consequently, the Congress ministers resigned from office on the issue of participation of India in the war.'(3)

(c) The Cripps Mission.-

‘In the year 1942 the British Government realised that it was difficult to remain indifferent towards the Indian problem any longer. Therefore on March 22, 1942 the British government sent Sir Stafford Cripps suggested the following proposals for the settlement of the Indian problem:'(4)

(i) “Immediately after the end of the war step shall be taken to set up in India an elected body for framing a new constitution of India.
(ii) Provision shall be made, as set out below for participation of Indian states in the constitution – making body.
(iii) The British government undertakes to accept and implement the constitution so framed the subject only –
(iv) The constitution- making body shall be composed of persons elected by Provincial legislatures and nominated by the Indian Princes unless the leaders of Indian origin of the principle communities agreed upon some other form before the end of hostilities.
(v) His majesty’s Government must bear the responsibility for and retain the control and direction of defence of India.”(5)

Indians were not satisfied with the above proposals therefore they rejected it.

(d) The cabinet mission, 1946.-

The Cabinet Mission came to India on 4th March, 1946. The mission recommended the following proposals:

(i) “There should be a Union of India embodying both British India and the states and with the exception of certain reserved subjects, all subjects were to be retained by the states.
(ii) The Paramountcy of Crown was to lapse.
(iii) For the purpose of Framing a new Constitution a Constituent assembly was to be elected.
(iv) An interim Government was to be set up having the support of major political parties.”(6)

The proposals of Cabinet Mission were accepted in July 1946 elections to Constituent Assembly took place.

(e) The Indian Independence Act, 1947-

The provisions of the act were as follows :

(i) “The Act provided for the creation of two independent Dominions. India and Pakistan from 15th August, 1947.
(ii) Each Dominion was to have a Governor-General who was to be appointed by the king.
(iii) The constituent of Assemblies of both Dominions were empowered to frame laws for their respective territories till the new constitution came into force.
(iv) After August 15, 1947 the British Government was not to control the Dominion or the Provinces.
(v) For the time being, till the new constitutions were framed, each of the Dominions and the provinces were to be governed by the Government of India Act, 1935.
(vi) The post of Secretary of the state for India was to be abolished and was taken over by Secretary of the Commonwealth of Nations.
(vii) The Act proclaimed lapse of British paramountcy over Indian states.”(7)

The Indian Independence Act, 1947, came into force on August 15, 1947, when the British rule in India came to an end.

5. 1947 to 1950- The Framing of the new Constitution

“The struggle for independence was thus over by 15th August, 1947. The need of a new Constitution forming the basic law of the land for the realisation of these ideas was Paramount. Therefore, one of the first tasks undertaken by independent India was framing of a new Constitution. As provided in the cabinet mission plan the constituent assembly came into being in November, 1946. Its members were elected by the provincial assembly by indirect election. Out of 296 seats for British India, The Congress captured 211 seats and Muslim League 73 seats. The rest were not filled up.”(8)

“After passing the Indian Independence Act, 1947 the limitations of cabinet mission were removed. According to the terms of the Act of 1947 it became a sovereign body. The first meeting of the Assembly was held on 9th December, 1946 as the sovereign Constitution Assembly for India. On11th December Dr. Rajendra Prasad was elected its permanent chairman. On August 29, 1947, a Drafting Committee of 7 members was set up under the Chairmanship of Dr. B. M. Ambedkar.”(9)

“The Draft Constitution was published in January, 1948. The people of India were given 8 months to discuss the draft and propose amendments. As many as 7635 amendments were proposed and 2473 were actually discussed. The Constituent Assembly held 11 sessions. The draft Constitution was considered for 114 days. In all, the Constituent Assembly sat for 2 years, 11 months and 18 days.”(10)

Commencement of constitution.-

“The new constitution of India was adopted by the constituent assembly on 26th November, 1949 and signed by the President, Dr. Rajendra Prasad. Articles 5, 6,7,8,9, 60, 324, 366, 367, 372, 380, 388, 391, 392 and 393 came into force at once. The remaining provisions of the Constitution came into force on 26th January, 1950, which is the date of the commencement of this constitution.”(11)

Short Title.-

Article 393 give a short name to our constitution “The constitution of India”.(12)

Authoritative Text in the Hindi language.-

“Article 394-A provides that the provision has been made for the authoritative text of the constitution of India in the Hindi language that it shall cause to be published by the President under his authority.”(13)

Repeal.-

The Constitution of India repealed Indian Independence Act, 1947, and the Government of India Act, 1935 together with all enactments amending or supplementing the latter Act,1950, but not including the Abolition of Privy Council Jurisdiction Act, 1950. The jurisdiction of Privy Council was abolished by the Abolition of Privy Council Jurisdiction Act, 1949 which came into effect on the replacement of Federal Court with the Supreme Court of India in 1950.

Historical Background of Constitution

References-

(1) Dr. J. N. Pandey, ‘Constitutional Law of India’ Central Law Agency 2020.
(2) Ibid
(3) Ibid
(4) Ibid
(5) Ibid
(6) Ibid
(7) Ibid
(8) Ibid
(9) Ibid
(10) Ibid
(11) See Article 394
(12) Article 393
(13) Article 394-A

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