Historical Background


Contents

Historical Background

The British came to India in 1600 as traders, in the form of East India Company, which had the
exclusive right of trading in India under a charter granted by Queen Elizabeth I. In 1765, the
Company, which till now had purely trading functions obtained the ‘diwani’ (i.e., rights over
revenue and civil justice) of Bengal, Bihar and Orissa.1 This started its career as a territorial power.

In 1858, in the wake of the ‘sepoy mutiny’, the British Crown assumed direct responsibility for the
governance of India. This rule continued until India was granted independence on August 15, 1947.
With Independence came the need of a Constitution. As suggested by M N Roy (a pioneer of
communist movement in India and an advocate of Radical Democratism) in 1934, a Constituent
Assembly was formed for this purpose in 1946 and on January 26, 1950, the Constitution came into
being. However, various features of the Indian Constitution and polity have their roots in the British rule.


There are certain events in the British rule that laid down the legal framework for the
organisation and functioning of government and administration in British India. These events have
greatly influenced our constitution and polity.

They are explained here in a chronological order:

THE COMPANY RULE (1773–1858)

Regulating Act of 1773

This act is of great constitutional importance as (a) it was the first step taken by the British
Government to control and regulate the affairs of the East India Company in India; (b) it recognised,
for the first time, the political and administrative functions of the Company; and (c) it laid the
foundations of central administration in India.

Features of the Act

1. It designated the Governor of Bengal as the ‘Governor-General of Bengal’ and created an
Executive Council of four members to assist him. The first such Governor-General was Lord
Warren Hastings.

2. It made the governors of Bombay and Madras presidencies subordinate to the governorgeneral
of Bengal, unlike earlier, when the three presidencies were independent of one
another.

3. It provided for the establishment of a Supreme Court at Calcutta (1774) comprising one chief
justice and three other judges.

4. It prohibited the servants of the Company from engaging in any private trade or accepting
presents or bribes from the ‘natives’.

5. It strengthened the control of the British Government over the Company by requiring the Court
of Directors (governing body of the Company) to report on its revenue, civil, and military
affairs in India.

Pitt’s India Act of 1784

In a bid to rectify the defects of the Regulating Act of 1773, the British Parliament passed the
Amending Act of 1781, also known as the Act of Settlement.

The next important act was the Pitt’s India Act2 of 1784.

Features of the Act

1. It distinguished between the commercial and political functions of the Company.

2. It allowed the Court of Directors to manage the commercial affairs but created a new body
called Board of Control to manage the political affairs. Thus, it established a system of
double government.

3. It empowered the Board of Control to supervise and direct all operations of the civil and
military government or revenues of the British possessions in India.

Thus, the act was significant for two reasons: first, the Company’s territories in India were for the
first time called the ‘British possessions in India’; and second, the British Government was given the
supreme control over Company’s affairs and its administration in India.


Charter Act of 1833

This Act was the final step towards centralisation in British India.

Features of the Act

1. It made the Governor-General of Bengal as the Governor-General of India and vested in him
all civil and military powers. Thus, the act created, for the first time, a Government of India
having authority over the entire territorial area possessed by the British in India. Lord
William Bentick was the first governor-general of India.

2. It deprived the governor of Bombay and Madras of their legislative powers. The Governor-
General of India was given exclusive legislative powers for the entire British India. The laws
made under the previous acts were called as Regulations while laws made under this act
were called as Acts.

3. It ended the activities of the East India Company as a commercial body, which became a
purely administrative body. It provided that the company’s territories in India were held by it
‘in trust for His Majesty, His heirs and successors’.

4. The Charter Act of 1833 attempted to introduce a system of open competition for selection of
civil servants, and stated that the Indians should not be debarred from holding any place,
office and employment under the Company. However, this provision was negated after
opposition from the Court of Directors.


Charter Act of 1853

This was the last of the series of Charter Acts passed by the British Parliament between 1793 and
1853. It was a significant constitutional landmark.

Features of the Act

1. It separated, for the first time, the legislative and executive functions of the Governor-
General’s council. It provided for addition of six new members called legislative councillors
to the council. In other words, it established a separate Governor-General’s legislative
council which came to be known as the Indian (Central) Legislative Council. This legislative
wing of the council functioned as a mini-Parliament, adopting the same procedures as the
British Parliament. Thus, legislation, for the first time, was treated as a special function of the
government, requiring special machinery and special process.

2. It introduced an open competition system of selection and recruitment of civil servants. The
covenanted civil service3 was thus thrown open to the Indians also. Accordingly, the
Macaulay Committee (the Committee on the Indian Civil Service) was appointed in 1854.

3. It extended the Company’s rule and allowed it to retain the possession of Indian territories on
trust for the British Crown. But, it did not specify any particular period, unlike the previous
Charters. This was a clear indication that the Company’s rule could be terminated at any time
the Parliament liked.

4. It introduced, for the first time, local representation in the Indian (Central) Legislative
Council. Of the six new legislative members of the governor-general’s council, four members
were appointed by the local (provincial) governments of Madras, Bombay, Bengal and Agra.

THE CROWN RULE (1858–1947)

Government of India Act of 1858

This significant Act was enacted in the wake of the Revolt of 1857—also known as the First War of
Independence or the ‘sepoy mutiny’. The act known as the Act for the Good Government of India,
abolished the East India Company, and transferred the powers of government, territories and revenues
to the British Crown.

Features of the Act

1. It provided that India henceforth was to be governed by, and in the name of, Her Majesty. It
changed the designation of the Governor-General of India to that of Viceroy of India. He
(viceroy) was the direct representative of the British Crown in India. Lord Canning thus
became the first Viceroy of India.

2. It ended the system of double government by abolishing the Board of Control and Court of
Directors.

3. It created a new office, Secretary of State for India, vested with complete authority and
control over Indian administration. The secretary of state was a member of the British cabinet
and was responsible ultimately to the British Parliament.

4. It established a 15-member Council of India to assist the secretary of state for India. The
council was an advisory body. The secretary of state was made the chairman of the council.
5. It constituted the secretary of state-in-council as a body corporate, capable of suing and being
sued in India and in England.

‘The Act of 1858 was, however, largely confined to the improvement of the administrative machinery
by which the Indian Government was to be supervised and controlled in England. It did not alter in
any substantial way the system of government that prevailed in India4.’


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.

Features of the Act of 1861

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 council—the 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 in 1937.

3. It also provided for the establishment of new legislative councils for Bengal, North-Western
Frontier Province (NWFP) 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 trans-action of
business in the council. It also gave a 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

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
budget5 and addressing questions to the executive.

3. It provided for the nomination of some non-official members of the
(a) Central Legislative Council by the viceroy on the recommendation of the provincial legislative councils and the Bengal Chamber of Commerce, and
(b) 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 nonofficial 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 bodies6.’


Features of the Act of 1909

This Act is also known as Morley-Minto Reforms (Lord Morley was the then Secretary of State for India and Lord Minto was the then Viceroy of India).

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 non-official 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 and zamindars.


Government of India Act of 1919

On August 20, 1917, the British Government declared, for the first time, that its objective was the
gradual introduction of responsible government in India7.

The Government of India Act of 1919 was thus enacted, which came into force in 1921. This Act is
also known as Montagu-Chelmsford Reforms (Montagu was the Secretary of State for India and Lord
Chelmsford was the Viceroy of India).

Features of the Act

1. It relaxed the central control over the provinces by demarcating and separating the central and
provincial subjects. The central and provincial legislatures were authorised to make laws on
their respective list of subjects. However, the structure of government continued to be
centralised and unitary.

2. It further divided the provincial subjects into two parts—transferred and reserved. The
transferred subjects were to be administered by the governor with the aid of ministers
responsible to the legislative Council. The reserved subjects, on the other hand, were to be
administered by the governor and his executive council without being responsible to the
legislative Council. This dual scheme of governance was known as ‘dyarchy’—a term
derived from the Greek word di-arche which means double rule. However, this experiment
was largely unsuccessful.

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

4. It required that the three of the six members of the Viceroy’s executive Council (other than the
commander-in-chief) were to be Indian.

5. It extended the principle of communal representation by providing separate electorates for
Sikhs, Indian Christians, Anglo-Indians and Europeans.

6. It granted franchise to a limited number of people on the basis of property, tax or education.

7. It created a new office of the High Commissioner for India in London and transferred to him
some of the functions hitherto performed by the Secretary of State for India.

8. It provided for the establishment of a public service commission. Hence, a Central Public
Service Commission was set up in 1926 for recruiting civil servants8.

9. It separated, for the first time, provincial budgets from the Central budget and authorised the
provincial legislatures to enact their budgets.

10. It provided for the appointment of a statutory commission to inquire into and report on its
working after ten years of its coming into force.


Simon Commission

In November 1927 itself (i.e., 2 years before the schedule), the British
Government announced the appointment a seven-member statutory commission under the
chairmanship of Sir John Simon to report on the condition of India under its new Constitution. All the
members of the commission were British and hence, all the parties boycotted the commission. The
commission submitted its report in 1930 and recommended the abolition of dyarchy, extension of
responsible government in the provinces, establishment of a federation of British India and princely
states, continuation of communal electorate and so on. To consider the proposals of the commission,
the British Government convened three round table conferences of the representatives of the British
Government, British India and Indian princely states. On the basis of these discussions, a ‘White
Paper on Consitutional Reforms’ was prepared and submitted for the consideration of the Joint Select
Committee of the British Parliament. The recommendations of this committee were incorporated
(with certain changes) in the next Government of Inida Act of 1935.


Communal Award

In August 1932, Ramsay MacDonald, the British Prime Minister, announced a
scheme of representation of the minorities, which came to be known as the Communal Award.
The award not only continued separate electorates for the Muslims, Sikhs, Indian Christians, Anglo-
Indians and Europeans but also extended it to the depressed classes (scheduled castes). Gandhiji was
distressed over this extension of the principle of communal representation to the depressed classes
and undertook fast unto death in Yeravada Jail (Poona) to get the award modified. At last, there was
an agreement between the leaders of the Congress and the depressed classes. The agreement, known
as Poona Pact, retained the Hindu joint electorate and gave reserved seats to the depressed classes.


Government of India Act of 1935

The Act marked a second milestone towards a completely responsible government in India. It was a
lengthy and detailed document having 321 Sections and 10 Schedules.

Features of the Act

1. It provided for the establishment of an All-India Federation consisting of provinces and
princely states as units. The Act divided the powers between the Centre and units in terms of
three lists—Federal List (for Centre, with 59 items), Provincial List (for provinces, with 54
items) and the Concurrent List (for both, with 36 items). Residuary powers were given to the
Viceroy. However, the federation never came into being as the princely states did not join it.

2. It abolished dyarchy in the provinces and introduced ‘provincial autonomy’ in its place. The
provinces were allowed to act as autonomous units of administration in their defined spheres.
Moreover, the Act introduced responsible governments in provinces, that is, the governor was
required to act with the advice of ministers responsible to the provincial legislature. This
came into effect in 1937 and was discontinued in 1939.

3. It provided for the adoption of dyarchy at the Centre. Consequently, the federal subjects were
divided into reserved subjects and transferred subjects. However, this provision of the Act
did not come into operation at all.

4. It introduced bicameralism in six out of eleven provinces. Thus, the legislatures of Bengal,
Bombay, Madras, Bihar, Assam and the United Provinces were made bicameral consisting of
a legislative council (upper house) and a legislative assembly (lower house). However, many
restrictions were placed on them.

5. It further extended the principle of communal representation by providing separate electorates
for depressed classes (scheduled castes), women and labour (workers).

6. It abolished the Council of India, established by the Government of India Act of 1858. The
secretary of state for India was provided with a team of advisors.

7. It extended franchise. About 10 per cent of the total population got the voting right.

8. It provided for the establishment of a Reserve Bank of India to control the currency and credit
of the country.

9. It provided for the establishment of not only a Federal Public Service Commission but also a
Provincial Public Service Commission and Joint Public Service Commission for two or more
provinces.

10. It provided for the establishment of a Federal Court, which was set up in 1937.


Indian Independence Act of 1947

On February 20, 1947, the British Prime Minister Clement Atlee declared that the British rule in India
would end by June 30,1948; after which the power would be transferred to responsible Indian hands.
This announcement was followed by the agitation by the Muslim League demanding partition of the
country. Again on June 3, 1947, the British Government made it clear that any Constitution framed by
the Constituent Assembly of India (formed in 1946) cannot apply to those parts of the country which
were unwilling to accept it. On the same day (June 3, 1947), Lord Mountbatten, the viceroy of India,
put forth the partition plan, known as the Mountbatten Plan. The plan was accepted by the Congress
and the Muslim League. Immediate effect was given to the plan by enacting the Indian Independence
Act9 (1947).


Features of the Act

1. It ended the British rule in India and declared India as an independent and sovereign state
from August 15,1947.

2. It provided for the partition of India and creation of two independent dominions of India and
Pakistan with the right to secede from the British Commonwealth.

3. It abolished the office of viceroy and provided, for each dominion, a governor-general, who
was to be appointed by the British King on the advice of the dominion cabinet. His Majesty’s
Government in Britain was to have no responsibility with respect to the Government of India
or Pakistan.

4. It empowered the Constituent Assemblies of the two dominions to frame and adopt any
constitution for their respective nations and to repeal any act of the British Parliament,
including the Independence act itself.

5. It empowered the Constituent Assemblies of both the dominions to legislate for their
respective territories till the new constitutions were drafted and enforced. No Act of the
British Parliament passed after August 15, 1947 was to extend to either of the new dominions
unless it was extended thereto by a law of the legislature of the dominion.

6. It abolished the office of the secretary of state for India and transferred his functions to the
secretary of state for Commonwealth Affairs.

7. It proclaimed the lapse of British paramountcy over the Indian princely states and treaty
relations with tribal areas from August 15,1947.

8. It granted freedom to the Indian princely states either to join the Dominion of India or
Dominion of Pakistan or to remain independent.

9. It provided for the governance of each of the dominions and the provinces by the Government
of India Act of 1935, till the new Constitutions were framed. The dominions were however
authorised to make modifications in the Act.

10. It deprived the British Monarch of his right to veto bills or ask for reservation of certain bills
for his approval. But, this right was reserved for the Governor-General. The GovernorGeneral
would have full power to assent to any bill in the name of His Majesty.

11. It designated the Governor-General of India and the provincial governors as constitutional
(nominal) heads of the states. They were made to act on the advice of the respective council
of ministers in all matters.

12. It dropped the title of Emperor of India from the royal titles of the king of England.

13. It discontinued the appointment to civil services and reservation of posts by the secretary of
state for India.

The members of the civil services appointed before August 15, 1947 would
continue to enjoy all benefits that they were entitled to till that time.
At the stroke of midnight of 14–15 August, 1947, the British rule came to an end and power was
transferred to the two new independent Dominions of India and Pakistan10. Lord Mountbatten became
the first governor-general of the new Dominion of India. He swore in Jawaharlal Nehru as the first
prime minister of independent India. The Constituent Assembly of India formed in 1946 became the Parliament of the Indian Dominion.


NOTES


1. The Mughal Emperor, Shah Alam, granted ‘Diwani’ to the Company after its victory in the
Battle of Buxar (1764).

2. It was introduced in the British Parliament by the then Prime Minister, William Pitt.

3. At that time, the Civil Services of the company were classified into covenanted civil services
(higher civil services) and uncovenan-ted civil services (lower civil services). The former
was created by a law of the Company, while the later was created otherwise.

4. Subhash C. Kashyap, Our Constitution, National Book Trust, Third Edition, 2001, P. 14.

5. The system of Budget was introduced in British India in 1860.

6. V. N. Shukla, The Constitution of India, Eastern Book Company, Tenth Edition, 2001, P.A-10.

7. The declaration thus stated: ‘The policy of His Majesty’s Government is that of the increasing
association of Indians in every branch of the administration, and the gradual development of
self-government institutions, with a view to the progressive realisation of responsible
government in India as an integral part of the British Empire’.

8. This was done on the recommendation of the Lee Commission on Superior Civil Services in
India (1923–24).

9. The Indian Independence Bill was introduced in the British Parliament on July 4, 1947 and
received the Royal Assent on July 18, 1947. The act came into force on August 15, 1947.

10. The boundaries between the two Dominions were determined by a Boundary Commission
headed by Radcliff. Pakistan included the provinces of West Punjab, Sind, Baluchistan, East
Bengal, North-Western Frontier Province and the district of Sylhet in Assam. The referendum
in the North-Western Frontier Province and Sylhet was in favour of Pakistan.