THE ROAD TO THE INDIAN CONSTITUTION

Constitution was adopted by the Constituent Assembly on 26^th November, 1949 came into force on 26^th January, 1950.  Road to the Constitution was full of challenges.  Indian constitution was an outcome of long struggle for freedom and gradual development of responsible government. In this article we will comprehend the historical development of Indian Constitution.

The East Indian Company was given Royal Charter by Queen Elizabeth-I in 1600 to trade with all countries east of Cape of Good Hope. East India Company was a trading company but gradually started acquiring territories in India. After Battle of Plassey in 1757, East India Company possessed territories in Bombay, Madras and Bengal.

REGULATING ACT, 1773

Although officials of the East India Company were getting rich out of trade, the East India Company was facing financial issues. The Company petitioned before the King for loan of 1,00,000 Pound.  British Parliament has an opportunity to intervene in the affairs of East India Company and passed Regulating Act, 1773.  Regulating Act had following features.

• Court of Directors of the East India Company had to share information regarding administration of India Territory with the British Government.
• Governor of Bengal was designated as Governor General. A Council consisting of four members were to assist the Governor General. Decision in the Council was to taken by majority. Governor General of Bengal has supervisory powers over governors of Madras Presidency and Bombay Presidency. Governor General in Council were responsible for all civil and military administration of British Territory in India.
• Governor General was to inform about the administrative affairs to the Court of Directors of East India Company.
• Governor of Madras Presidency and Bombay Presidency was to inform about administrative affairs to the Governor General-in-Council.
• The Act also established a Supreme Court of Justice at Calcutta
• Legislative powers were also granted to Governor General-in-Council to make rules, regulations and ordinances.

PITTS INDIA ACT, 1784

Regulating Acts, 1773 was not working smoothly. The control of the British Government was ineffective over administration of Indian Territory. Similarly Control of Governor General-in- Council was ineffective over Governor of Presidencies. The Governor General-in-Council was facing difficulties as Governor General was unable to get majority in council. To streamline the administration, the British Parliament Passed Pitts India Act, 1784. The important features were as under:

• The control of British Government over East India Company was strengthened. A Board of Control consisting of six commissioners including two cabinet ministers was constituted to supervise administration of East India Company. A secret committee of three directors were appointed to take the place of the Court of Directors in political and military matters.
• Governor General’s Council was to have only three members to make decision making in the council easier. Governor General was given casting vote. Presidency of Madras and Bombay were made subordinate to Presidency of Bengal.
• Governor General-in-Council were to take prior permission of Court of Directors and Secret Committee before declaring war or entering into treaty

CHARTER ACT OF 1793

• The Charter of East India Company was renewed for 20 years.
• A written code consisting of regulations were framed

CHARTER ACT OF 1813

• Monopoly of East India Company over Indian Trade was abolished. Monopoly with China was continued
• Charter of East India Company was renewed for another 20 years. East India Company was allowed to possess Indian Territory for another 20 years.

CHARTER ACT OF 1833

• Indian possession was to be kept as trust of British Crown
• Monopoly of tea trade with China was abolished
• President of Board of Control became minister of Indian Affairs
• Governor General of Bengal became Governor General of India
• Governor General-in-Council were given power to legislate for the whole of British India
• The Act added Law Member to the Executive Council. He was having no power to vote. Lord Macaulay was one such member who influenced education system
• The Act provided for codification of laws of India
• The Act has declaration that “that no native or natural born subject of the crown resident in India should be reason only of his religion, place of birth, descent, color, or any of them be disqualified for any place in the company’s service”.

CHARTER ACT OF 1853

• Law member was made a full member of the Executive Council. Consent of Governor General was compulsory for all legislative proposals
• Additional members were introduced for legislative purposes.
• Central Legislative Council in legislative capacity was to consist of 12 members. The chief justice of Supreme Court of Calcutta was to be ex officio member of the Central Legislative Council. Governor General was given power to nominate two members
• All vacancies were to be filled by competitive examinations
• Executive Councilors were distinguished from Legislative councilors. Legislation was first time treated as separate function

GOVERNMENT OF INDIA ACT, 1858

• Government of India Act, 1858 was outcome of revolution of 1857
• Administration shifted from East India Company to British Crown
• Board of Control and Court of Directors were abolished. There places were taken by Secretary of State of India and India Council. Secretary of State was also a cabinet minister. Indian Council was to consist of 15 members. Secretary of State was having power to overrule Indian Council. All matters related to administration was scrutinized by Secretary-in-Council.
• Governor General came to be known as Viceroy.

INDIA COUNCIL ACT, 1861

• Indian Council Act, 1861 started policy of Association of Indians in Administration.
• Indians were allowed to participate first time in Central Legislative Council
• A fifth member was added to Executive Council. The Act empowered the Governor General to delegate special business to each member of Executive Council. Thus, portfolio system was introduced.
• The Governor General was given power to make rules for business of Executive Council
• The Governor General was empowered to nominate not less than 6 or more than 12 members for legislative functions. Not less than half of additional members were to be non- official
• In 1874, a new member was added to look after Public Works raising the members of Executive Council to six

 INDIAN COUNCIL ACT, 1892

• Executive Council for purposes of Legislations were expanded to include additional members not less than 10 and more than 16 members
• Governor General was authorized to make rules for nomination of additional members. These members were to be elected indirectly by District Boards, Chamber of Commerce etc.

INDIAN COUNCIL ACT, 1909 (MORLEY -MINTO REFORMS)

• The Act empowered the Governor General to nominate one Indian Member to Executive Council
• The number of additional members of Executive Council was increased to 60 members.
• The Members were given right to move resolution in Legislative Council
• Muslims were given separate electorates
• System of election of members were indirect

INDIAN COUNCIL ACT, 1919 (MONTAGU-CHELMSFORD REFORMS)

• Out of six members of Executive Council three were to be Indians
• The act provided for bicameral legislature at centre i.e. Legislative Council and Council of State. The Council of State was to have 60 members and Legislative Council was to have 145 members
• Governor General was having power to veto any bill
• Dyarchy was introduced at Provincial Level. Important subjects were reserved for governors and other subjects were transferred to ministers.

SIMON COMMISSION

Montagu Chelmsford Reform has provision for review after 10 years to review reforms.  Simon Commission consisting of seven members under Chairmanship of John Simon was appointed by British Parliament to review the constitution reform. Simon Commission arrived in India in 1928.  It was opposed by Congress and Muslim League as there was no Indian in the Commission. Lala Lajpat Rai was beaten by police during opposition and died out of injuries he had sustained. Simon Commission recommended for abolition of dyarchy at provincial level and retaining of Separate Electorates.

ROUND TABLE CONFERENCES

Three Round Table conferences were convened during 1930-32 to explore constitution reforms on equal basis in London.  Congress participated in 2^nd Round Table Conference. Gandhi was sole representative of Congress. Round Table Conferences were not successful due to differing views of participants and non- participation of congress in 1^st and 3^rd Round Table Conference.

COMMUNAL AWARD

In 1932, British extended separate electorates to scheduled castes vide Communal Award which was resisted by Congress which saw it as an effort to divide Hindu Community. Mahatma Gandhi embarked upon   fast unto death in Yeravda Jail which resulted in Poona Pact, whereby depressed classed were given reserved seats in Provincial Legislature in lieu of separate electorates.

IDEA OF CONSTITUENT ASSEMBLY

In 1934, idea for constituent assembly was proposed by M.N. Roy a leading communist in India.

GOVERNMENT OF INDIA ACT, 1935

Government of India Act, 1935 was comprehensive legislation. Government of India Act, 1935 has also influenced our Constitution.

• The Act has provision for All India Federation
• There was provision for federal court
• Provincial Autonomy was introduced
• Dyarchy was abolished at Provincial Level but introduced at Central Level, Defense, External Affairs, Ecclesial Affair and Tribal affairs were reserved for Governor General
• Indian Council was abolished
• Right to vote was extended. Around 27% of adult population got right to vote.
• Separate electorate was extended to Sikhs, Anglo Indians etc.
• Burma was separated from India
• Sind and Orissa were made separate provinces
• Aden was transferred and placed directly under colonial office since 1^st April, 1937

DEMAND FOR CONSTITUENT ASSEMBLY

In 1936, the Congress raised demand for Constituent Assembly for framing of Constitution in its Lucknow Session.

AUGUST OFFER

During World War II, Viceroy Linlithgow in its August Offer of 8^th August, 1940 recogonised rights of the Indians to frame their own constitution after the War. It also gave full weight to minority opinion in making of any constitution as such Muslim League was given veto in framing of any constitution.

CRIPPS MISSION

Cripps Mission was sent to India  in 1942 to negotiate with Congress and Muslim League to keep India loyal to British War Efforts and in exchange for a promise of elections and full self -government (Dominion Status)  after war. Cripps Mission was rejected by congress. Gandhi termed Cripps Mission post-dated cheque.

CABINET MISSION

After the Second World War the Cabinet Mission was dispatched to India in 1946 consisting of Lord Pethick Lawrence, Sir Stafford Cripps and A. V. Alexander to help India to attain her freedom as speedily and fully as possible. While dispatching the Cabinet Mission  British  Prime Minister said that Indian People may elect to remain within British Commonwealth. If India elects for independence, she has a right to do so.

The Cabinet Mission rejected that Idea of Partition and recommended for united India.

The Cabinet Mission Plan recommended for Union of India controlling Defense, Foreign Affairs and Communications. The Union was to have an executive and legislature constituted from British Indian and State Representatives. All residuary powers were to be with states. Provinces were free to form groups with executives and legislatures and each group could determine the provincial subjects to be taken in common.

The Cabinet Commission recommended for Constituent Assembly for framing of Constitution. The Cabinet Mission stated that the most appropriate constitutional structure would have been based on adult franchise but any attempt to introduce such step would lead to wholly unacceptable delay in the formulation of new constitution. The only practical course was to utilize the provincial legislative assembly as electing body. The total membership of Constituent Assembly were to be  389.  292 of the Members were to be elected by Provinces. 93 were to represent princely states. 4 members were to represent chief commissioner provinces.

The Cabinet Mission also recommended for establishment of Interim Government, while constitution making proceeds.

CABINET MISSION PLAN FAILURE

Although Constituent Assembly as well as Interim Government have been formed under Cabinet Mission Plan, the cabinet mission failed due to differences between the Congress and Muslim League. According to Congress the Constituent Assembly was sovereign and grouping under the Cabinet Mission was optional but as Per Muslim League Constituent Assembly was not sovereign and grouping were compulsory. Muslim League never joint Constituent Assembly. Muslim League joined Interim Government but did not cooperate in running of Government.

THE STATEMENT OF PRIME MINISTER ATLEE

The British Prime Minister Mr. Clement Atlee made statement on the floor of the Parliament on February 20, 1947 that the British will quit India by June 1948. Mr. Clement Atlee made the following statement:

The present state of uncertainty is fraught with danger and can not be indefinitely prolonged. His Majesty’s Government wish to make it clear that it is there definite intention to take the necessary steps to effect the transfer of power to responsible Indian Hands by a date not later than June 1948. But if it should appear that such a constitution would not have been worked out by a fully representative assembly before that time, the British Government has to consider “to whom the power of the central government in British India should be handed over on the due date , whether as a whole to some form of central government for British India or in such other way as may seem most reasonable and in the best interests of the Indian People.

MOUNTBATTEN PLAN

Lord Mountbatten was appointed as Last Viceroy of India and was assigned task of a speedy transfer of power from the British to India. In May 1947, Mountbatten came with a plan wherein he proposed that provinces would be declared as independent successor states and would be given freedom to join Constituent Assembly or not. This was called Dickie Bird Plan which was rejected by Congress. Nehru said that this plan will lead to balkanization of India.

On 3^rd June, 1947, Mountbatten came with another plan wherein partition of British India in two sovereign states were proposed. Princely States were to join any of India or Pakistan. This plan was accepted by Congress as well as Muslim League.

INDIAN INDEPENDENCE ACT, 1947

• The Act provided for end of British Rule on 15^th August, 1947 and establishment of two dominions of India and Pakistan.
• The position for Secretary of State for India was abolished
• It provided for appointment of Governor General on advice of cabinet of each dominion
• The British King was to drop the title of King of India
• Till Constituent Assembly framed new Constitution, the British India was to be governed by 1935 Act.
• Paramountcy of British Government over Princely States was to lapse

__________________________