Historical Background
The British came to India in 1608 as traders, in the form of East India Company, which had exclusive right of trading in India under a charter granted by Queen Elizabeth I in 1600. In 1765, it got diwani of Bengal, Bihar and Orissa. In 1858, in the wake of sepoy mutiny, the British Crown assumed direct responsibility for the governance of India. It ruled till India got independence on August 15, 1947.
After Independence, the need for a Constitution arised. Hence, Constituent Assembly was formed in 1946 as the need for a Constitution arised. The features of the Indian Constitution and polity have their roots in the British rule.
The various events in the British rule laid down the legal framework for the organisation and functioning of government and administration in British India, greatly influenced our Constitution and Polity. These events are as follows:
The Company Rule (1773-1858)
NOTE: This was the first step towards centralisation.
Regulating Act of 1773:
Governor of Bengal was designated as the ‘Governor-General of Bengal’. An executive council (Not to be confused with legislative council) of four members was created, to assist the governor-general of Bengal. The first Governor general was Warren Hastings. Governors of Madras and Mumbai presidencies were made subordinate to the governor-general of Bengal. Established Supreme Court at Calcutta (1774). It had one chief justice and three other judges. It Barred servants of the company from engaging in private trade and accepting bribes. Court of directors of EIC were made to report on revenue, civil and military affairs in India. This was the first step taken by British government to control and regulate the affairs of EIC. For the first time it recognised the political and administrative functions of the company. This act laid foundation of central administration in India
Amending act of 1781
Also known as the Declaratory act, 1781, it was primarily passed to rectify the defects of regulating act. The act made the jurisdiction of the Supreme court restricted to Calcutta only. Civil servants, revenue collectors, judicial officers were exempted from the jurisdiction of the Supreme court. Appeals from provincial courts were to be made to Governor-General-in-council. It empowered the Governor General in Council to frame regulations for Provincial Courts and Councils. It was the first attempt in India towards separation of the executive from the judiciary by defining the respective areas of jurisdiction.
Pitt’s India Act of 1784
It differentiated between political and commercial affairs of the company. Created a new court of Directors to manage the commercial affairs while created a Board of Control to manage political affairs. Board of Contro was empowered to supervise and direct all civil and military operations of the government. For the first time Indian territory came under British possession. British government was given the supreme control over Company’s affairs and its administration in India.
Charter Act of 1793
The overriding powers given to Lord Cornwallis over his council, were extended to all future Governor – Generals and Governors of Presidencies. It was done in order to control subordinate presidencies. Trade monopoly of East India Company was extended to 20 years. It also provided that a person who is Commander in Chief, only if appointed, will be a member of Governor -General’s council. It laid that the members of Board of Control to be paid out of Indian Revenue.
Charter Act of 1813
The company’s rule was extended to another 20 years. Trade Monopoly of EIC was abolished, except for tea and to trade with China. The British Crown asserted sovereignty over the Company Territories in India. Christian Missionaries were allowed and their purpose was to spread enlightenment among the people. The company was given a greater responsibility of spreading western education among Indians and Rs. 1 Lakh was allotted for this purpose. The local government was given the power to impose taxes and was also empowered to punish people for not paying taxes.
Charter act of 1833
The Governor-general of Bengal was made the governor general of India. He was given all civil and military powers. Lord William Bentinck was first governor-general of India. The governor of Bombay and Madras were deprived of the power to make laws and it was now vested with Governor-General of India. All the laws previously made were called Regulations, but now they were called Acts. It brought to an end the commercial activities of EIC completely and the company’s territory in India were held by it ‘in trust of his majesty, his heirs and successors’. It also attempted to introduce a system of open competition for selection of civil servants, which was opposed by Court of Directors and hence, this provision was negated.
NOTE: This was the final step towards Centralisation
Charter Act of 1853
The executive and legislative functions of the council was separated. It made an addition of six new members th the legislative council, who were to be known as legislative councellors to the Council. Open competition system was introduced for the selection and recruitment to civil services, which was thrown open to Indians as well. For this, a committee on the Indian Civil Service was appointed, which was known as the Macaulay Committee. Introduction of Local representation to Indian central legislative council took place and out of six new legislative members of the Governor’s council, four were appointed by local provincial governments of Bombay, Agra, Madras, Bengal.
The Crown Rule (1858-1947)
NOTE: This is the first step towards decentralisation.
Government of India Act 1858:
Also known as ‘Act for the Good government’, it ended the Dual government scheme, that was initiated due to Pitt’s India act. Governor General of India was made the Viceroy of India and first such Viceroy was Lord Canning (1858-1862). A new office of Secretary of state for India was setup and the secretary of state was a member of British Cabinet who was responsible to the British Parliament. Along with that a 15-member council of India was set up to act as an advisory body of the Secretary of state for India. Secretary of state-in-council was a body corporate which was set up and was capable of suing and being sued in India and in England.
Indian Councils Act 1861:
For the first time, representative institutions were set up which made an attempt to includes Indians with law-making process. And thus the then Viceroy of India, Lord Canning, nominated 3 Indians as non-official members of his expanded council. They were Raja of Benaras, the Maharaja of Patiala and Sir Dinkar Rao. As a process of decentralisation, the legislative powers of Madras and Bombay were restored. And this legislative devolution, resulted in the grant of complete internal autonomy to the provinces in 1937. New Legislative councils for Bengal, North-Western Frontier Province and Punjab were established. Viceroy was empowered to make rules and orders for the convenient transactions of business in the council. Also the ‘portfolio system’ introduced by Lord Canning was given recognition in 1859. Ordinances could also be issued by the Viceroy without the concurrence of the legislative council during an emergency and the life of such an ordinance was six months.
Indian Councils Act 1892:
It made an increment of non-official members in the central and provincial legislative council. Members were allowed to discuss the budget without having the ability to vote on it and were given the power to address questions to the executive. Autority was given to the Governor-General in Council to set rules for nomination of member, subject to the approval of the Secretary of State for India. Election was used in a limited and indirect provision was made for it to fill up the non-official seats both in central and provincial councils. Nomination of non-official members followed the process of recommendation on certain basis and it was done in the following way:
Indian Councils Act 1909:
Also known as Morley – Minto Reforms, it is one of the historic acts passed by the British parliament. The members of legislative councils at the Centre was increased from 16-60 and at the provinces also it was increased but was not uniform in size. It also enlarged the deliberative functions of the legislative councils at both the levels. It now allowed the members to ask supplementary questions and to move resolution on budget. For the first time it provide Indians to be associated with the executive council. Satyendra Prasad Sinha was the first such member of the Viceroy’s executive council and was appointed as the Law member. A new system of communal representation was introduced for Muslims by accepting ‘separate electorate’. This also legalised communalism in India and Lord Minto came to be known as Father of Communal Electorates. Separate representation was also provided for presidency corporations, chambers of commerce, universities and zamindars.
Government of India Act 1919:
It was also known as Montague Chelmsford Reforms. This act was passed for the establishment of a Responsible Government. It laid the foundations for many features that are associated with Indian constitution in the current times. Dyarchy was introduced and with this the provincial subjects were divided into transferred and reserved subjects, where the transferred subjects were administered by the Governor with the aid of ministers and were held responsible to the legislative council, while the reserved subjects were administered by the Governor and his executive council without being responsible to legislative council. For the first time in the country, bicameralism and direct elections were introduced. It also provided that out of six executive council, three members were to be Indians. Separate electorates principle was extended to Sikhs, Indian Christians, Anglo-Indians and Europeans. Franchise was granted to a limited number of people on the basis of property, tax or education. High commissioner of India position in a new office was created in london. Some powers of Secretary of State was transferred to the commissioner. Provincial budgets was separated from the central budget for the first time. Central public service commission was also established. Statutory commission was to be made to report on the working and to analyze the impact of this act after 10 years. Simon Commission was set up for this purpose in 1927 and it submitted its report in 1930. Speaker and Deputy speaker originated for the first time in 1921 under the provisions of this act.
Government of India Act 1935:
Establishment of an All India federation consisting of provinces and princely states as units was provided in this act. Powers were divided between the centre and units in terms of three lists- Federal list, provincial list and the concurrent list. Viceroy was given the Residuary powers. However, this federation never fructified since princely states did not join it. Dyarchy system of government was abolished in the provinces and provincial autonomy was introduced in its place. Responsible government in provinces was introduced, that is, the governor had to act with the advice of ministers responsible to the provincial legislature. Dyarchy at the centre was however adopted. However, it did not come into effect at all. Bicameralism was introduced in six out of eleven provinces- Bengal, Bombay Madras, Bihar, Assam and the United Provinces. Separate electorates principle was further extended to depressed classes, women and labour. Council of India was abolished. Franchise was further extended to 10% population. The act also provided for setting up- Federal public service commission, provincial public service commission, joint public service commission, federal court, Reserve Bank of India. The establishment of All India Federation was failed as the Provinces did not accept for this. A Federal Court was also established under the provisions of this act.
Indian Independence Act 1947:
It declared India as an Independent and Sovereign State and ended British Rule. Establishment of responsible Governments at both the Centre and the Provinces was made. Office of Viceroy, office of Secretary of state for India was abolished. It led to the partition of India into two independent dominions. The Constitutent assemblies of the two dominions were empowered to adopt a Constitution and legislature. Lapse of British Paramountcy was proclaimed. Governor General of India and Governor of Provinces were made Constitutional (nominal) heads. Lord Mountbatten was made the first Governor General of new dominion of India and he swore Jawaharlal Nehru as the first Prime Minister of India. The title of emperor of India was abolished.
List of Governor generals and Viceroys:
| Governor Generals (Company Rule) |
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| Viceroys (Crown Rule) |
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Previous Year’s Questions:
Prelims –
- The distribution of powers between the Centre and the States in the Indian Constitution is based on the scheme provided in the (2012)
- Morley-Minto Reforms, 1909
- Montagu-Chelmsford Act, 1919
- Government of India Act, 1935
- Indian Independence Act, 1947
2. In the federation established by The Government of India Act of 1935, Residuary Powers were given to the (2018)
- Federal Legislature
- Governor General
- Provincial Legislature
- Provincial Governors
3. We adopted parliamentary democracy based on the British model, but how does our model differ from that model? (2021)
1. As regards legislation, the British Parliament is supreme or sovereign but in India, the power of the parliament to legislate is limited.
2. In India, matters related to the constitutionality of the Amendment of an Act of the Parliament are referred to the Constitution Bench by the Supreme Court.
Select the correct answer using the code given below.
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Answers :
- (c)
- (b)
- (c)
Mains –
- Did the Government of India Act, 1935 lay down a Federal Constitution? Discuss. (200 words) – 2016
Answer: Federalism is the system of government in which there is a division of powers between one general and several regional authorities, each of which in its own sphere is independent and coorcinate. The essential feature of Federal Constitution, therefore, is that it lays down a scheme of distribution of powers of the State among its coordinate bodies. Each is organised and controlled by the Constitution.
Federal features of Government of India Act, 1935:
- All India Federation: It provided for the establishment of an All India Federation consisting of the British India Provinces and other Indian states. The States were absolutely free to join or not to join the proposed Federation. The rulers of Indian states never gave their consent and thus, the Federation envisaged by the Act never came into being.
- Provincial Autonomy: One redeeming feature of the new Act was that it marked the beginning of the provincial autonomy.The Act divided legislative powers between the provincial and central legislatures and within their defined sphere the provinces they were autonomous units of administration. The Ministers were not absolutely free in matter of running their departments. The Governors continued to possess a set of overriding powers.
- Setting up of a federal legislature: Bicameralism was introduced. The Federal Legislature was to consist of two houses. It envisaged setting up a council of states and federal assembly, with reservations in the Council of states for minorities, women and depressed classes.
- Distribution of Legislative Power: The act made a three-fold division of powers between the Centre and the Provinces- federal list, provincial list and concurrent list. The subjects which were of all-India interest and demanded uniform treatment were put in the federal list.
- Setting up of a federal court: A Federal court was also envisaged to be set up under this act so the provisions of the act could be interpreted in case of any disputes. The Federal Court established by this Act has three kinds of jurisdictions i.e. Original, Appellate and Advisory. The court had exclusive original jurisdiction in any dispute between the Federation and its units.
However, the establishment of the all–India federation did not materialize because it was optional for the princely states who did not join. Further, the Federal Legislature was not a sovereign legislature since the Governor General had a veto over the bills passed by it. Hence, it was federal in letter but not in spirit.
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