Indian Constitution has evolved throughout the British rule decade after decade. The traces of British rule are first known to be as mere ‘traders’ in the 1600 under the rule of Mughal Emperor-Aurangzeb. Although the French, the Portuguese and the Dutch had also been competing with the English but the East Indian Company (EIC) by 1764 was immeasurably successful after the Battle of Buxar (between EIC & Mughal Empheror Shah Alam) and had obtained the ‘Diwani’ rights by 1765. Diwani rights were the rights over revenue and civil justice in the regions of Bengal, Orissa and Bihar.
This led the British to sit in a position of power leading to the exploitation as what would be known later as the ‘political void in the country’. All of these exploitations, disrespect to the people of the host country led to the Sepoy Mutiny against the Company in 1858, after which the territorial power was taken into direct responsibility by the British Crown. However, before the Mutiny as well, the British Government had passed Charters which in turn governed the country. The Company could not act against the orders of the British Government.
The British Crown continued its rule until India’s independence in August 15, 1947. Independent India developed its own Constitution by a Constituent Assembly who took into account all of the previous Acts passed by either the Company or the British Crown during its governance of colonized India.
Hence, the evolution of the Indian Constitution can be looked into two parts:
- The Company rule, from 1773 to 1858.
- The Crown rule, from 1858 to 1947.
Under the Company rule, the Regulating Act of 1773 was the first step taken by the British Government to consolidate all the affairs of EIC since its initial territorial power. A new designation was assigned as ‘Governor General of Bengal’ which was assisted an Executive Council of four members. Bengal was then considered as the most resourceful, and treated as their administrative capital by the British. The Act also established a Supreme Court at Fort Williams in the city comprising of one Chief Justice and three other judges. The first Governor General was Lord Warren Hastings.
However, the 1773 Act had a lot of shortcomings which slowly came into notice and to solve the issues, the Pitt’s India Act of 1784 was passed. The Act now clearly distinguished between the commercial and political functions of the company and formed a dual system of government. Importantly, it went on to create a new body as ‘Board of Control’ to manage its political affairs- limiting their discretional power of the Company. Under this Act, the Company’s possessions in India were now in direct control of the British Government.
The centralization of British India was almost done by this Act since the supreme control of company’s affairs and administration were in the hands of the British Government but the final step was only granted by the Charter Act of 1833. The designation titled ‘Governor General of Bengal’ was now titled as ‘Governor General of India’ and bestowed with exclusive legislative powers for the entire British India. This Act also made an attempt to recruit civil servants but was soon negated by the Court of Directors.
The last series of Acts under the Company rule was the Charter Act of 1853. The system of Parliamentary system of governance in India was laid down by this Act by separating the legislative and executive functions of the Governor General’s council. The Legislative Council was named as “Indian (Central) Legislative Council”. The attempt to select civil servants was finally introduced under this Act and was also open to Indians by the Macaulay Committee formulated in 1854. Indians were also allowed for the first time to represent their localities in the Indian Legislative Council.
As mentioned above, the Sepoy Mutiny led the British Government to bring colonized India under its direct control. It is also known as the Revolt of 1857, and marks as the First War of Independence organised it an attempt to overthrow the British rule in India. Although it was not a successful attempt on that front but it did lead to a significant change in the administration of British India, for then and also for the coming years. The Crown rule was established as ‘Act for the Good Government of India’ under the Government of India Act, 1858. The designation of ‘Governor General of India’ was then changed to ‘Viceroy of India’, who was considered as the direct representative of the Crown. It was held by Lord Canning for the first time.
Additionally, it also changed the abolished the ‘Board of Control’ and ‘Court of Directors’ to end the double government and place ‘Secretary of State for India’ instead. This new office was vested with complete authority over the Indian administration and had to be presided by a member of the British cabinet i.e., it was responsible to the British Parliament.
The representation of Indians in the administration was felt for the longest time, especially after the Revolt of 1857. Slowly, it was not just necessary for a mere representation but required for the cooperation from the localities as well. Under the Indian Councils Act, 1861 the Indians were granted association with the law-making process and their nomination was directly governed by the Viceroy. The Act also gave recognition to a new system ‘Portfolio System’ by which a member of the Viceroy’s council could be made charge of one or more departments of the government an authorised them to issue final orders of behalf of the council as well. The ultimate authority was bestowed to the Viceroy to issue ordinances.
During this time, there were major movements carried out in British India. Exploitations reduced on an upper level but the locals were still used to work for low wages to benefit the British and increase their resources. None of these, however, led to major changes in the administration except a technical change in the number of non-official members in the Central and provincial councils by the Indian Councils Act, 1892. Through which the representation of Indians was increased but the British still maintained the official majority.
Between the next Act, there also was put forward the Constitutional Bill of 1895. It is also referred as the “Swaraj Bill” and was brought into debate due to the protests of nationalists in India and the demand for self-government by them. It demanded fundamental rights to be brought into effect. This insinuated the ultimate inclusion of such rights in the Constitution of India.
There was again a technical change by the Indian Councils Act, 1909 which increased the size of legislative councils by a major number in centre. It further then provided for the association of Indians with the executive councils of the Viceroy and Governors. Hence, the Act is also known as Morley-Minto reforms upon the then Secretary of State for India and the Viceroy of India. The reforms also recognised a system of communal representation owing to the diversities in the country and accepted a ‘separate electorate’ for Muslims, under which the Muslims members were elected by the Muslim voters only. It was in turn an official legalisation of communalism in India.
Communalism in India is not a new concept especially as the British India has forever fired this ignited space. The more the riots, the more the cry to stop exploitation, the more implementation of non-beneficial Acts against the society, the angrier and discontent the society and the more the British felt on the need to ‘tame’ an uncultured society. On such an account of protest took place the infamous Jallianwala Bagh massacre in which a large peaceful crowd was slathered to death by then Lieutenant Governor of Punjab. Such an act shook the confidence of an already sucked colonised country which led to British Government for the first time to be declared its objective to introduce the Montagu-Chelmsford reforms, also as the Government of India Act, 1919.
This is considered one of the major reforms in Indian administration and is believed to have given substantial content and ideas to our current Constitution. The reforms had relaxed the central control over the provinces by dividing their authorisations on different lists i.e., the central and provincial legislatures were authorised to make laws on their respective subject list.
Furthermore, this divisions could take place in two parts. One as ‘transferred’ and the other as ‘reserved’. The transferred list would require to be administered by the governor with the advice of ministers of legislative council whereas the reserved list would be administered by the governor and his executive council without the interference of the legislative council. This scheme of governance is known as ‘Dyarchy’.
Additionally, important features of today’s Constitution as ‘Bicameralism’ and ‘Direct elections’ were introduced in the country. Council of State (Upper House) and Legislative Assembly (Lower House) came into being and members of both houses were chosen by direct elections upon majority. From the Act of 1909, the principle of communal representation to only Muslims were extended for Indian Christians, Sikhs, Anglo-Indians and Europeans.
Among various other developments: Public Service Commission was established on the recommendation of Lee Commission of 1924, Limited number of people were extended franchise on the basis of education, property and tax, separated provincial budgets from Central budget and also granted power to provincial legislatures to enact their budgets.
Importantly, Simon Commission was formulated which put forward a seven-member statutory commission under Sir John Simon as the chairman. It was done to report India’s condition under this new and developed Constitution. This commission comprised of British officials only and was widely protested by the Indians as well as members of parties. The commission still went on to submit its proposal, convene three round table conferences by the representatives of British government to discuss the proposals. Based on these discussions, ‘White Paper on Constitutional reforms’ was prepared and submitted to a Joint Select Committee of the British Parliament. The Committee then recommended certain changes which were incorporated to formulate the Government of India Act, 1935. The Nehru report of 1928 and Communal Award of 1932 were also considered before the formulation of this Act.
The Government of India Act, 1935 is one of the prime documents and most of its imprints can be found in the Constitution of India. It established an All-India Federation consisting princely states and provinces. Therefore, powers were divided between the Centre and three lists: Federal list, Provincial list, Concurrent list and the residual powers were in the hands of the Viceroy.
The Public Service Commissions were further established to a federal, provincial and joint of two or more provinces. Also, a federal court was set up in 1937.
The nationalists of India had demanded dominion status and its non-fulfilment did not satisfy them. The Act also failed to account any religion rivalry between the Muslims and Hindus.
Amidst the World War II, Indians nationalists in turn for valuable military help against Japan demanded the dominion status which was promised by the Government. Following several round table conferences, The Viceroy of India in 1947, Lord Mountbatten, signed the Indian Independence Act, 1947.
The British rule in India ended under this Act and India was declared as an independent and sovereign state. It further provided for the partition of India to create two independent dominions of India. The seceded came to be known as Pakistan. However, the freedom was given to Indian princely states if they wanted to join the Dominion of India or Pakistan or in some cases, remain independent.
Additionally, it abolished the office of Viceroy and for each dominion, one governor general was appointed by the British King on the advice of dominion cabinet. The titles of Emperor of India from the royal titles of King of England were also abolished.
Lastly, Constituent Assemblies of both the dominions were granted the power to frame and adopt their respective Constitutions.
The Constituent Assembly of India upon these considerations, took ideas from other nations, debated upon territorial resources, settled on rights and duties to bring forward the Constitution for the independent and sovereign India. The adoption of this made India the largest democracy in the world.
The Indian Constitution inhabited the federal structure but remained the supremacy of the Centre. It is known as ‘quasi federalism’. In the case of Keshavananda Bharathi v Union of India, the Supreme Court held that this federal character of the Constitution falls under its basic feature and in context of quasi federalism it was held in West Bengal v. Union of India by the same court that ‘The Indian Union is not a true federation.
Dr, Ambedkar listed out various ways adopted to minimize the rigidity and legalism of federal Constitution. It was done to let the fundamental laws of the country mold itself as the society grows. Hence, it is indeed is a ‘living document’.
 Basu, D.D. Introduction to the Constitution of India, 18th Edition
 Khanna, H R, Making of India’s Constitution, EBC
 Glanville Austin, The Indian Constitution: Cornerstone of a Nation, p 308
 AIR 1973 SC 1461
 AIR 1963 SC 1241
 Constituent Assembly Debates, Vol VII, p 34
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