This article is written by Aditya Dubey, student of Indore Institute of Law, Indore. The author in this article has discussed the historical development of the Constitution of India and the statutes which paved the way for its creation along with the Sources which effectively helped the drafting of the Constitution.

Introduction

Before gaining independence in the year 1947, India was basically divided into two main sections of the society, namely The British India (which consisted of 11 Provinces) and the Princely states ruled by Indian princes as per the Subsidiary Alliance System. The two sections later merged together to form the Indian Union, but many of the rules and regulations from British India are still being followed even now. The historical evolution of the Constitution of India can be traced back to many regulations and Acts passed before India gained its Independence.

It was a series of many incidents and events which resulted in the development of the Constitution of India, the world’s largest written constitution. India has been a diverse country in respect of culture, people, and its terrain. So it was a challenging task for the makers of the constitution to form a supreme rule book according to which this rich diversified nation can be effectively governed. In this article, the various Acts, Regulation and Declarations which gave shape to the Indian Constitution are mentioned.

Indian System of Administration

There is a Parliamentary form of democracy in India where the executive is responsible to the Parliament. The Parliament has two houses – Lok Sabha and Rajya Sabha. Also, the type of governance in India is Federal, i.e. there is a separation of powers between the Center and the States. However, governance is of Quasi-Federal nature in reality. We also have self-governance at local Governmental levels. All these systems owe their birth to the British administration.

Regulating Act of 1773

In 1765, after the battle of Buxar, the East India Company (EIC) secured the Diwani rights (Right to collect revenue) in the states of Bengal, Bihar and Orissa. This made the EIC as a commercial cum political establishment in India. This led to the resultant administrative anarchy and the accumulation of an insane amount of wealth by the company servants was being questioned in the British Parliament. As a result, the British government set up a secret committee to probe into the affairs of the company. The report submitted by the committee paved the way for the act submitted by the Parliament called Regulating Act to enforce the governmental control and regulate the affairs of the company.

Under the Regulating Act, various clauses were mentioned such as:

  • The Presidency of Bengal was made supreme over those of Bombay and Madras. The governor of Bengal was then designated as the Governor-General of the three provinces. The governor general was given the power of superintendence, direction and control over two remaining territories;
  • Warren Hastings was appointed as the Governor-General through the act;
  • The Governor-General was assisted by four councillors. Their tenure of office was fixed for a term of 5 years;
  • The Governor-General was required to follow the orders of the Directors of the company and keep them informed about all matters which were related to the interest of the company at that time;
  • The Governor-General was given the power to make rules, ordinances, and regulations for improved governmental control over the company owned territories;
  • The Supreme Court of Judicature at Fort William was established at Calcutta as the apex court and it consisted of Chief Justice and three other Judges.

Pitt’s India Act of 1784

  • In this Act, the company owned territories were called as “The British possessions in India”, this was the clear indication that British Crown had claimed the ownership over the territory acquired by the East India Company in India;
  • It established a board of control, which was to be appointed by the Crown itself. The Board was given the power to superintend, direct and control all kinds of civil, military and revenue affairs of the company;
  • This Act also created a department of the British Government in England to exercise its control over the Directors of the Company and the Indian administration;
  • Governor’s Councils were established at Madras and Bombay through the establishment of this act.

Charter Act of 1813

  • The Company’s monopoly in the Indian trade was shut down through this act;
  • Trade with India was opened to all the British Citizen exception to this was however tea trade and trade with China;
  • This act led to the establishment of the Church at the expense of the company in India, this was done for the English to practice their religion.

Charter Act of 1833

  • It was through this act, the Governor General of Bengal was designated as the Governor General of India. The first Governor-General of India was Lord Bentinck;
  • He was given the full power to superintend, direct and control the government of all parts of India which included the matters related to civil, military and revenue administrations;
  • The Governor General of India was awarded the duty to pass a resolution to improve the condition of the Indians without hurting the sentiments of the native people;
  • It was through this act, the activities of the East India Company ended as a commercial entity and it just became a purely administrative entity.

Charter Act of 1853

  • The Board of control was awarded the authorization to make rules and regulations which would help in governing appointments to the services in India. Due to this development, a new system of an open examination was introduced in the country called the Civil Service Examination. This examination was open to the public and entry to the civil services was made through this competitive examination itself;
  • It was through this act that the Governor General’s Executive council was extended for the legislative purposes.

Government of India Act of 1858

  • It was through this Act that the rule of the East India Company was completely replaced by the British Crown;
  • The act vested powers in the Secretary of State for India (one of the cabinet ministers of the British Government). The salary of the secretary of state was paid from the Indian revenue;
  • The Secretary was assisted by the Council of India, a body consisting of 15 members and he was vested with the full authority and control over the Indian administration through his agent who was the Viceroy;
  • It was through this act that the Governor-General of India was made Viceroy of India and the First Viceroy of India was Lord Canning.
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Indian Councils Act of 1861

  • Indians were nominated for the very first time to the legislative council for the purpose of the legislation;
  • The number of Indians in the legislative council was 6 at least and could be up to 12. These members were nominated by the Viceroy a period of 2 years;
  • The act also provided for the local legislature for the Madras and Bombay and empowered the Viceroy to establish similar local bodies in Bengal and other provinces.

Indian Councils Act of 1909

  • This Act comes from Sir John Morley, the Secretary of State for India and Minto who was Viceroy of India;
  • The act had provisions for the enlargement of the legislative council and at the same time, it made them more effective. The number of additional members of the council was significantly increased;
  • In the council which represented the entire state, the majority of the official members were maintained to be the same in number;
  • On the other hand, in the provincial or state councils, there was a majority of non-official members, though not elected members, except in Bengal where there was a small majority of elected members;
  • The act provided for the appointment of Indians to the Viceroy’s Executive council. The executive council was also enlarged. The members could now ask many reasonable questions and could even debate on the budget, but they were not allowed to vote on it;
  • It also granted separate electorate to the Muslims (a system of communal representation for the Muslim community).

Government of India Act of 1919

  • This act comes from E.S Montagu, the then Secretary of State for India and Lord Chelmsford, the then Viceroy of India;
  • The act is also referred to as Montague-Chelmsford Reforms;
  • The concept dyarchy was introduced through the act, under which the ministers were responsible to their respective subjects and held the charges of “Transferred subjects” while the Governors of provinces and their councillors were to be in charge of the “Reserved Subjects”;
  • A bicameral legislature was introduced for the first time at the centre and through this act, a second Indian member was included in the Governor-General’s Executive Council;
  • The Act provided for the establishment of the Public Service Commission of India;
  • The Act extended the communal electorate to the minorities present in the nation at that time such as the Sikhs, the Europeans, the Anglo-Indians and Christians.

Government of India Act of 1935

  • This act was the outcome of the Simon Commission Report, deliberation at round table conferences, and the white paper introduced in the British Parliament;
  • It was the longest and the last constitutional measure introduced by the Britishers in India;
  • The act provided for the Federation of India consisting of Governor Provinces and Princely states;
  • The dyarchy introduced by the GOI Act 1919 was abolished and provincial autonomy was introduced instead. All subjects of provincial administration were placed in the hands of Ministers who belonged to the elected legislature;
  • The Act gave special powers and responsibilities to the Governors of the states which effectively curbed the power of minister and undermined the provincial autonomy;
  • Owing to this act, British India was divided into two parts, the 2 governor provinces and the 5 chief commissioner provinces;
  • The Act enlarged the legislature in the provinces. Six provinces, the provinces of Assam, Bengal, Bihar, Bombay, Madras and the united province were going to have bicameral legislature through this act;
  • Dyarchy was abolished at the provincial level but it was established at the centre. This meant that the Reserved Subjects (Defense, External Affairs, Tribal Affairs, Etc.) were to be administered by the Viceroy;  
  • Burma (now Myanmar) was separated from India through this act;
  • Sind and North West Frontier Province were to be given the status of provinces through this act.

Indian Independence Act of 1947

  • The Act provided for the partition of India and the establishment of two dominions by dividing India into India and Pakistan on 15th August 1947. Hence, all the laws enforced in British India would remain applicable until amended by the respective legislature of both nations;
  • Each nation and all its provinces were to be governed as per the Government of India Act, 1935 till the formation of their own new constitution;
  • The Act provided the terms of termination of the dominion of the British Crown over the Princely States;
  • All treaties and functions exercised by the crown over the princely states and the rulers would lapse from August 15, 1947.

The Constitution of India (January 26, 1950)  

  • Dr. Rajendra Prashad as the President of India prepared a draft of the new constitution of India in February 1948;
  • The constitution of India was hence finally adopted by the constituent assembly on 26th November in the year 1949 and it came into force on 26th January in the year 1950 (which is regarded as the Republic Day in India), when the Republic of India was born;
  • Hence, India was declared as an Independent and sovereign state through this act and it also established responsible Governments at both stages, the centre as well as the provinces or states;
  • The Constitution of India was inspired by various other Constitutions already existing in their respective nations, the drafting committee had taken various features from various Constitutions of these nations. These features and the Constitutions which acted as a Source for the Constitution of India are discussed below.

Sources of Indian Constitution

The constitution of India is the prime law of India. It is the longest written constitution in the world. Dr. B. R. Ambedkar is regarded as the father of Indian constitution. The articles defined under the Constitution of India are taken from many constitutions and ideals of many countries in the world. Let’s see the sources which helped the drafting committee to frame the Constitution of India.

British Constitution

  1. The parliamentary system of Government;
  2. Symbolic or nominal importance of head of state;
  3. Single citizenship;
  4. Cabinet system;
  5. Various Parliamentary privileges;
  6. Bicameralism.

American Constitution

  1. Fundamental rights;
  2. Independence of Judiciary;
  3. The principle of judicial review;
  4. The post of Vice-President;
  5. Removal of judges of the Supreme Court and the High Courts
  6. Impeachment of the President.

Scottish Constitution

  1. DPSP (Directive Principle of State Policy);
  2. Methods of Presidential Election;
  3. The nomination of members to the Council of State.

Canadian Constitution

  1. The Federal system with powerful States;
  2. Vesting residuary powers in Centre;
  3. Appointment of state governor by Centre;
  4. Advisory jurisdiction of Supreme Court.

Australian Constitution

  1. The Concurrent list;
  2. Freedom of Trade and Commerce;
  3. A joint sitting of both houses of the Parliament.

German Constitution

  1. Suspension of the fundamental rights during an emergency.

Union of Soviet Socialist Republics’ Constitution

  1. Fundamental duties;
  2. The idea of social, economic, and political justice enshrined in Preamble (introductory part of the Constitution).

French Constitution

  1. Republican structure;
  2. The idea of Liberty, Equality and Fraternity.

South African Constitution

  1. Amendment of the constitution;
  2. Election of members of Rajya Sabha.

Japanese Constitution

  1. The procedure established by law.

Government of India Act 1935

  1. Federal system;
  2. Governor’s office;
  3. Structure of judiciary;
  4. Public Service Commission;
  5. Emergency provision;
  6. Three lists for distribution of power.

Conclusion

The Constitution of a nation, in essence, is adjectival rather than being substantive. It does not seek to direct what should be done but does lay down how the authority of the government of a nation should be exercised. India is a diverse nation with respect to its culture, the citizens, and it’s territory which is why the drafting committee took so long to complete the draft and, therefore, the historical growth of the Constitution of India can be traced back to many statutes (which are mentioned in this article) before the nation gained independence.

The Constitution of India is the longest written Constitution around the globe. It took 2 years 11 months and 18 days along with an expenditure of ₹6.4 million to frame and write the entirety of the Constitution and it has been inspired by various other constitutions from different nations. The Constitution of India is the prime law of India and is spirit has been upheld by Indian judiciary over the years.

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