Evolution of Indian Constitution in British Era

Introduction

When we study the Constitution of India, it is not something that appeared suddenly in 1950. It has a long historical background, and much of it is connected to the British rule in India.

Arrival of the British (1600)

• The story begins in 1600, when the British came to India not as rulers, but as traders.
• They came in the form of the East India Company, which was given a charter (a royal permission) by Queen Elizabeth I.
• This charter gave the company the exclusive right to trade with India—no other English group could compete with them here.

👉 At this stage, the British were purely traders, not rulers.

Beginning of Political Power (1765)

• By 1765, things changed.
• After winning the Battle of Buxar (1764), the East India Company obtained the ‘Diwani’ rights from the Mughal Emperor.
• Diwani rights meant control over revenue collection and civil justice in Bengal, Bihar, and Orissa.

👉 This was a turning point because the Company now transformed from being a trading body into a territorial power.

British Crown Takes Over (1858)

• Until the mid-19th century, the East India Company continued expanding and ruling.
• But then came the Revolt of 1857 (often called the Sepoy Mutiny by the British, but considered India’s First War of Independence by many historians).
• The revolt shook the foundations of Company rule.
• As a result, in 1858, the British Crown (the monarchy in England) took direct control of India.
• This is known as the Crown Rule, and it continued until India’s Independence in 1947.

Towards Independence and Constitution (1946–1950)

• With Independence in 1947, India faced the challenge of creating a Constitution for self-rule.
• For this, a Constituent Assembly was set up in 1946.
• After nearly 3 years of debate and drafting, the Constitution of India came into effect on 26th January 1950.

British Legacy in Indian Polity

• Many of the features of our Constitution and administrative system have their roots in British rule.
• This is because, during their rule, the British passed several laws and regulations which created a legal and administrative framework in India.
• These developments shaped the organisation and functioning of government that we inherited at Independence.

👉 For clarity, this historical background is divided into two main phases:

1. The Company Rule (1773–1858) – when the East India Company ruled.
2. The Crown Rule (1858–1947) – when the British Crown directly ruled.

The Company Rule (1773–1858)

When the East India Company began to function as a territorial power, the British Parliament in England slowly started passing laws to regulate its activities. These laws not only controlled the Company but also laid the constitutional foundations of governance in India. Let’s understand them:

Regulating Act of 1773 – First Step of Control

This Act is very important because:

• It was the first direct attempt by the British Government to regulate Company affairs in India.
• For the first time, the Company’s political and administrative functions were recognised.
• It laid the foundations of central administration in India.

Key Provisions

1. Governor of Bengal became the Governor-General of Bengal (first: Warren Hastings) with an Executive Council of 4 members.
2. Governors of Bombay and Madras made subordinate to Bengal. Earlier, all three presidencies were independent.
3. A Supreme Court at Calcutta (1774) established – 1 Chief Justice + 3 Judges.
4. Company’s servants were banned from private trade or accepting bribes/presents.
5. Court of Directors had to report revenue, civil and military affairs to the British Government.

👉 In short, the British Parliament took the first control over Indian administration.

Amending Act of 1781 (Act of Settlement) – Correction Act

The Regulating Act created confusion, so Parliament corrected it.

Key Provisions

1. Governor-General and Council were exempt from Supreme Court jurisdiction for official acts.
2. Revenue matters were kept outside the Supreme Court’s jurisdiction.
3. Supreme Court to apply personal laws (Hindu law for Hindus, Mohammedan law for Muslims).
4. Appeals from provincial courts would go to Governor-General-in-Council, not the Supreme Court.
5. Governor-General-in-Council could frame regulations for provincial courts.

👉 It clarified the relationship between judiciary and executive.

Pitt’s India Act of 1784 – Double Government

• Brought clear division between commercial and political functions of the Company.
• Commercial affairs → Court of Directors.
• Political affairs → A new body called Board of Control.
• Introduced a system of Double Government.
• For the first time, Company’s territories were called “British possessions in India.”
• The British Government now had supreme control over Indian administration.

Act of 1786 – Special Powers for Cornwallis

When Lord Cornwallis became Governor-General, he demanded:

1. Power to override council decisions in special cases.
2. To act as both Governor-General and Commander-in-Chief.

👉 Parliament agreed, passing the Act of 1786.

Charter Act of 1793 – Consolidation

1. Overriding power given to Cornwallis extended to all future Governor-Generals.
2. Strengthened control of Bengal over Bombay and Madras.
3. Extended Company’s trade monopoly for 20 years.
4. Commander-in-Chief would not be part of Governor-General’s Council unless separately appointed.
5. Board of Control expenses to be paid from Indian revenues.

Charter Act of 1813 – Trade Liberalisation

1. Ended Company’s monopoly over Indian trade, except for tea and trade with China.
2. Asserted sovereignty of British Crown over Company’s territories.
3. Allowed Christian missionaries into India.
4. Encouraged spread of Western education.
5. Gave local governments the power to impose taxes and punish tax defaulters.

Charter Act of 1833 – Centralisation + End of Commercial Role

This was a turning point.

1. Governor-General of Bengal became Governor-General of India (first: Lord William Bentinck).
   • All civil and military powers centralised.
2. Bombay and Madras lost legislative powers. Only Governor-General could legislate for entire India.
   • Laws now called Acts (earlier “Regulations”).
3. Company’s commercial activities completely ended; it became only an administrative body.
4. Territories held by Company were “in trust for His Majesty.”
5. Introduced the idea of open competition for civil services; said Indians cannot be debarred.
   • But Court of Directors opposed; so implementation was delayed.

👉 Marks the final step towards centralisation in India.

Charter Act of 1853 – Last Charter Act, Seeds of Modern System

1. Separated legislative and executive functions of Governor-General’s Council.
   • Created a legislative council (Indian/Central Legislative Council).
   • Functioned like a mini-Parliament with procedures similar to Britain.
2. Introduced open competition for civil services.
   • Macaulay Committee (1854) recommended implementation.
   • Indians could now, in theory, enter civil services.
3. Company’s rule continued “on trust for Crown” – but no fixed time limit mentioned.
   • Indicated Parliament could end Company rule anytime.
4. For the first time, introduced local representation: 4 of 6 new legislative council members nominated by provincial governments (Bombay, Madras, Bengal, Agra).

👉 This Act prepared the ground for the end of Company rule and the beginning of Crown rule.

Quick Recap of Company Rule (1773–1858)

• 1773: Regulating Act → First step of control, central administration begins.
• 1781: Amending Act → Clarifies Supreme Court vs Executive.
• 1784: Pitt’s India Act → Double government, political control with Britain.
• 1786: Special powers for Cornwallis.
• 1793: Company monopoly extended, stronger Bengal.
• 1813: Trade monopoly ended (except tea, China); Western education, missionaries.
• 1833: Full centralisation, Governor-General of India created, Company loses trade.
• 1853: Legislative council created, civil service open competition, local representation.

✅ Thus, by 1853, the Company had lost its trading character and became only an administrative body under Parliament’s supervision.
👉 Just 4 years later, the Revolt of 1857 took place, leading to the end of Company Rule in 1858.

Excellent — now we will enter the second phase: Crown Rule (1858–1947).

The Crown Rule (1858–1947)

The Revolt of 1857 marked a decisive turning point. The British realised that ruling India through a private company was no longer practical or safe. Hence, the Government of India Act, 1858 was passed, and from then until 1947, a series of constitutional changes gradually shaped India’s polity.

Government of India Act, 1858 – Transfer to Crown

• Passed after the Revolt of 1857.
• Called the “Act for the Good Government of India.”
• Abolished the East India Company → powers transferred to British Crown.

Features

1. India to be governed in the name of Her Majesty.
   • Governor-General of India became Viceroy of India.
   • First Viceroy = Lord Canning.
2. Ended Double Government (Board of Control + Court of Directors abolished).
3. Created the office of Secretary of State for India → full authority over Indian administration.
   • Member of British Cabinet → answerable to British Parliament.
4. Established a 15-member Council of India to advise Secretary of State (chairman = Secretary of State).
5. Secretary of State-in-Council became a corporate body → could sue or be sued in India/England.

👉 Overall, it improved the administrative machinery in England, but did not change governance within India.

Indian Councils Act, 1861 – Beginning of Representation & Decentralisation

• After 1857, British realised they needed to seek Indian cooperation in governance.
• This Act marks the beginning of representative institutions.

Features

1. Viceroy to nominate Indians as non-official members of Legislative Council.
   • 1862: Lord Canning nominated → Raja of Benaras, Maharaja of Patiala, Sir Dinkar Rao.
2. Decentralisation: Restored legislative powers to Bombay and Madras Presidencies.
   • Reversed earlier centralisation (from 1773 to 1833).
   • Ultimately led to provincial autonomy (1937).
3. Allowed creation of new legislative councils (Bengal – 1862, NW Provinces – 1886, Punjab – 1897).
4. Legalised portfolio system (introduced by Canning in 1859) → members given charge of specific departments.
5. Viceroy empowered to issue Ordinances during emergencies (valid for 6 months).

👉 This Act started India’s slow journey towards representation + provincial autonomy.

Indian Councils Act, 1892 – Indirect Representation + Budget Discussions

Features

1. Increased number of non-official members in Central and Provincial Councils (but still official majority).
2. Councils given limited powers:
   • Could discuss budget (not vote),
   • Could ask questions (with restrictions).
3. Introduced (indirectly) the idea of elections:
   • Non-official members nominated by Viceroy/Governors, but on recommendation of local bodies (district boards, municipalities, universities, chambers of commerce, zamindars etc.).
   • The word election was avoided; it was called nomination on recommendation.

👉 This was the first crack in the wall: Indians started getting some space in legislative process.

Indian Councils Act, 1909 – Morley-Minto Reforms

• Secretary of State = Lord Morley.
• Viceroy = Lord Minto.
• Known for two major things: expansion of councils and separate electorates.

Features

1. Legislative Councils Expanded:
   • Central Council → members increased from 16 to 60.
   • Provincial Councils → numbers varied, but all enlarged.
2. Official Majority retained at Centre; but in Provinces → allowed non-official majority.
3. Enlarged functions: members could ask supplementary questions, move resolutions, and discuss budget more freely.
4. For the first time, Indians entered Executive Councils:
   • Satyendra Prasad Sinha → first Indian member of Viceroy’s Executive Council (Law Member).
5. Introduced Separate Electorates for Muslims → Muslim members elected only by Muslim voters.
   • “Legalised communalism.”
   • Lord Minto came to be called the Father of Communal Electorate.
6. Provided for separate representation of Presidency Corporations, Chambers of Commerce, Universities, and Zamindars.

👉 This Act gave Indians more say in administration, but also sowed the seeds of communal politics.

Government of India Act, 1919 (Montagu–Chelmsford Reforms)

Backdrop (1917 Declaration): British goal = “gradual introduction of responsible government in India.”
Came into force: 1921

What changed?

• Centre–Province Split (but unitary spirit retained)
  • Subjects demarcated: Central List vs Provincial List.
  • Both legislatures could make laws on their lists, yet the overall system stayed centralised/unitary.
• Dyarchy in Provinces (double rule)
  • Transferred subjects (e.g., education, public health) → run by Ministers responsible to the Legislative Council.
  • Reserved subjects (e.g., police, finance) → run by Governor + Executive Council (not responsible to legislature).
  • Outcome: experiment failed—frequent friction, real power stayed with Governor.
• Bicameralism & Direct Elections at Centre
  • Council of State (Upper House) + Legislative Assembly (Lower House).
  • Majority in both by direct election—a first.
• Indianisation of Executive Council
  • 3 of 6 (excluding C-in-C) in Viceroy’s Executive Council to be Indians
• Communal Electorates extended
  • Separate electorates now for Sikhs, Indian Christians, Anglo-Indians, Europeans (beyond Muslims).
• Limited Franchise
  • Based on property, tax, education → small electorate.
• High Commissioner for India (London)
  • Took over some functions from the Secretary of State.
• Public Service Commission
  • Central PSC (1926) set up → institutionalised civil service recruitment.
• Provincial Budgets separated
  • Provinces could frame/enact their own budgets.
• Statutory Commission after 10 years
  • To review the Act’s working → led to Simon Commission.

Simon Commission (1927–30) & Round Table Conferences

• All-British membership → all-India boycott.
• Recommended: end dyarchy, more provincial responsibility, federation of British India + Princely States, continue communal electorates.
• Follow-up: 3 Round Table Conferences → White Paper → scrutinised by Joint Select Committee → shaped the 1935 Act.

Communal Award (1932) & Poona Pact

• PM Ramsay MacDonald’s Award: continued separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans and extended it to Depressed Classes (SCs).
• Gandhiji’s fast at Yerawada → Poona Pact (1932):
  • Joint Hindu electorate retained; reserved seats for Depressed Classes within it.

Government of India Act, 1935

Why crucial? Longest pre-independence statute; blueprint for several parts of our Constitution.

1) Proposed All-India Federation

• Units: Provinces + Princely States.
• Three Lists: Federal (59), Provincial (54), Concurrent (36); Residuary to Viceroy.
• Didn’t materialise (States didn’t accede).

2) Provincial Autonomy (dyarchy abolished in provinces)

• Provinces became autonomous in their spheres.
• Responsible government introduced—Governor acts on advice of ministers responsible to provincial legislature.
• Came into effect 1937, quit 1939 (Congress ministries resigned).

3) Dyarchy at Centre (never implemented)

• Federal subjects split into Reserved vs Transferred—stayed on paper.

4) Bicameralism in 6 Provinces

• Bengal, Bombay, Madras, Bihar, Assam, United Provinces → Upper (Council) + Lower (Assembly), but with many restrictions.

5) Communal Representation widened

• Separate electorates now also for SCs, women, labour (workers), etc.

6) Council of India abolished

• Secretary of State assisted by advisers, not the old Council.

7) Franchise expanded

• About 10% of population got the vote (still limited, property/education linked).

8) Reserve Bank of India

• RBI established (1935) → currency & credit authority.

9) Public Service Commissions

• Federal PSC, Provincial PSCs, Joint PSCs.

10) Federal Court (1937)

• Apex judicial forum for federal questions → precursor to Supreme Court.

Takeaway: 1935 Act operationalised provincial autonomy, expanded electorates/ institutions, and inspired multiple constitutional features post-1947.

Indian Independence Act, 1947

Context:

• Feb 20, 1947: PM Clement Attlee—British rule to end by June 30, 1948.
• June 3, 1947: Mountbatten Plan—partition acceptable; Constituent Assembly’s Constitution won’t bind unwilling parts.
• Act passed to give immediate effect.

What it did

1. Ended British rule; India became independent & sovereign from 15 Aug 1947.
2. Partition → two Dominions: India & Pakistan (right to leave Commonwealth).
3. Viceroy abolished; each Dominion to have a Governor-General (appointed by the King on Dominion cabinet’s advice).
4. Constituent Assemblies of each Dominion:
   • Could frame any Constitution;
   • Could repeal any British law (even this Act).
5. Full legislative powers to Assemblies till new Constitutions took effect; no post-15 Aug British Act would extend unless adopted by Dominion law.
6. Secretary of State for India office abolished; functions moved to Secretary of State for Commonwealth Affairs.
7. Paramountcy lapsed over Princely States & tribal areas.
8. States free to accede to India/Pakistan or remain independent.
9. GoI Act 1935 to govern as an interim constitution (with modifications) till new Constitutions.
10. British Monarch’s veto powers ended (though G-G retained assent powers).
11. Governor-General & provincial governors became constitutional heads, to act on ministerial advice.
12. “Emperor of India” title dropped from royal style.
13. Civil services protections continued for those appointed before 15 Aug 1947.

Midnight, 14–15 Aug 1947: Power transferred to Dominions.

• Lord Mountbatten → first Governor-General of India.
• Jawaharlal Nehru sworn in as Prime Minister.
• The Constituent Assembly (1946) functioned as the Dominion Parliament till the Constitution commenced.

Quick Recap (1858–1947)

• 1858: Company abolished; Crown takes direct control; Viceroy + Secretary of State introduced.
• 1861: Beginning of representation; decentralisation to provinces; Viceroy can issue ordinances.
• 1892: First step towards elections (indirect); budget discussion introduced.
• 1909: Morley-Minto Reforms → larger councils, Indian in Executive Council, separate electorates (Muslims).
• 1919: Dyarchy (provinces), bicameral Centre, direct elections, PSC (1926), separate budgets, communal electorates widened.

• Simon Commission → RTCs → White Paper → 1935 Act.
• Poona Pact (1932): SCs get reserved seats in joint electorate.
• 1935: Provincial autonomy (dyarchy ended in provinces), centre-level dyarchy (not implemented), RBI, Federal Court, PSCs, wider franchise; federation proposed but never formed.
• 1947: Legal end of British rule, partition, Dominions, lapse of paramountcy, interim use of GoI Act 1935, Constituent Assemblies sovereign in law-making.