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Constitutional History

Enactment and adoption of the Constitution marks beginning of new era which implies fresh beginning as well continuation.

Study of Constitutional History is a long and arduous exercise, therefore, in order to make it simpler it can be understood after the arrival of British in India from year 1600 onwards.

Period between 1600-1772, East India Company

The British emergence in India begin with the arrival of East India Company which was a Trading Company. The East India Company was formed in the year 1600 under a Charter of Queen Elizabeth I which gave it an exclusive right of trading in Asia, Africa and America, beyond the cape of Good Hope, eastward to the Straits of Magellan. The Company established its trading centres or factories in several parts of India and Bombay, Madras and Calcutta became the chief settlements or presidencies as they were known and exercised control over subordinate depots and places in their vicinity. The East India Company worked under license from the Indian Government except in Bombay, whose sovereignty was ceded to British Crown.

Lord Brougham in Mayor of Lyons v East India Company1) made following observations regarding general character of possession of East India Company of Calcutta, “The settlement of the Company in Bengal was effected by leave of a regularly established government, in possession of the country, invested with the right of sovereignty and exercising its power: that by permission of that government, Calcutta was founded, and the factory fortified, in a district purchased from the owners of the soil, by permission of that government, and held under it, by the Company, as subjects owing obedience as tenants rendering rent, and even as officers exercising, by delegation a part of its administrative authority. At what precise time, and by what steps, they exchanged the character of the subjects with for that of sovereign, or rather, acquired by themselves, or with the help of the Crown, and for the Crown, the rights of sovereignty, cannot be ascertained: the sovereignty has long since been vested in the Crown…

In order to ensure smooth conduct of affairs, Queen Elizabeth’s Charter of 1601 granted permission to the Governor and Company “from time to time assemble themselves…within our dominions or elsewhere, and there to hold Court for the said Company, and affairs thereof; and that also it shall and may be lawful to and for them, or the more part of them being so assembled, and to make, ordain and constitute such and so many reasonable laws, constitutions, orders and ordinances, for the good government of the said Company…”.

Similar powers were given by Charters granted by James I and Charles II in 1609 and 1661 respectively.

The Charter of 1726 introduced in all the three Presidencies a Mayor’s Court which was not the Company’s Court but Court of King of England, though exercising its authority over a land to which the King of England had no claim to sovereignty. The government of each Presidency vested was vested in a Governor and a Council consisting of senior servants of the Company. The Governor and Council jointly exercised their powers.

The Victories of Plassey (1757) and Buxar (1764) made British masters of Bengal from mere merchants.

Period between 1773–1832

Regulating Act of 1773

The Regulating Act of 1773 was the first Parliamentary Act enacted after the east India Company, established a de facto sovereignty over large parts of northeast India. The Act established a government in Bengal consisting of a Governor- General and four Councillors, in whom the whole civil and military government of the Presidency of Bengal and the government and the territorial acquisitions and revenues in the kingdoms of Bengal, Bihar and Orrisa (Diwani lands) was vested. The government of the Presidencies of Bombay and Bombay and Madras were subordinate to the Governor-General and Council, who constituted the Supreme Government of India.

The Act of 1781

By this Act of Parliament the Governor-General and Council were empowered to frame regulations of the ‘provincial Courts and councils’. The power under the Regulating Act was intended to apply to the company’s settlement at Fort William (Calcutta) and other places subordinate thereto. The Act of 1781 authorised the making of regulations for the ‘territorial acquisitions of Bengal, Bihar & Orissa ie Diwani Kingdoms. The powers of the Supreme Court under the Regulating Act were of wide amplitude. The registration by the Supreme Court was a condition precedent for laws made under the Regulating Act to come into operation. No such stipulation was attached to the power granted under the 1781 Act.

In 1793, the Bengal Government issued a revised and amended code of regulations, a body of forty enactment commonly called the Cornwallis Code.

In 1800 and 1807, the local governments of Madras and Bombay were invested within the territories same legislative powers as had been given to the Bengal Government. The Charter Act of 1813 By the Charter Act of 1813, the powers of all three Councils were enlarged and were also subjected to greater control by the British Parliament.

Period between 1833-1856

Constitutional Changes: The Charter Act of 1833 introduced changes in the system of legislation in Inia, it vested the legislative power in India in the Governor – General in Council consisting of Governor General and four ordinary members.

Period between 1857-1918

The First War of Indian Independence in 1857 brought East India Company to an end and the Government of India was directly placed under the British Crown through the Secretary for India.

Minto – Morley Reforms of 1909 increased the membership of councils. The number of additional numbers in the Central Legislative Council was not fixed at sixty, of whom nor were more than 24 to be non-officials thereby the official majority was maintained.

Up to year 1919, the legislation remained primarily prerogative of the Executive.

Period between 1919-1949

The Government of India Act, 1919 On August 20, 1917, the Secretary of State for India in the House of Commons made an important announcement that,

The policy of His Majesty’s Government with which the Government of India are in complete accord is that of the increasing association of Indian in every branch of administration, and the gradual development of self-governing institutions, with a view to the progressive realisation of responsible government in India as an integral part of the British Empire”.

This declaration made an important announcement about intention of British to introduce measure of responsible government in India.

The Statutory Commission (Simon Commission)

The commission arrived in British-occupied India in 1928 to study constitutional reform in Britain's most important colonial dependency. It was commonly referred to as the Simon Commission after its chairman, Sir John Allsebrook Simon.

In 1930, the Indian Princes manifested their readiness to accede to a federal system. The British Government convened a ‘Round Table Conference’ of the representatives of the British Government, the Princes and British India.

The Government of India Act, 1935

The main provisions of the Act are as following –

  • Division of Power between Centre and Provinces
  • All India Federation- Unitary System of Government
  • Governor’s Province
  • Federal Court

The Cripps Mission, 1942

Sir Stafford Cripps discussed following Draft proposals with Indian Leader.

  • Immediately after cessation of hostilities, steps shall be taken in India to set up a Constitution – making body.
  • The Indian States should participate in Constitution –making body.
  • His Majesty would accept and implement the Constitution.
  • The Constitution – making body would be composed of elected representative, elected by Lower House by proportional representation system.

The Cabinet Mission, 1946

The Labour Party on 19 February 1946 announced that three cabinet ministers would go to India to look for the possibilities of an immediate settlement of the Indian problem.

Mr Attllee, The Labour PM declared in the House of Commons, “is it any wonder that today India claims, as a nation of 400million people that has twice sent her sons to die for freedom, that she should herself have freedom to decide her own destiny?

Indian Independence Act, 1947

  • It set up two independent dominion in India known as India and Pakistan
  • The King shall appoint a Governor – General for each dominion.
  • The Paramountacy of British Crown shall lapse.
  • Until the new Constitution is formed the Government of India Act, 1935 shall remain in force.

Framing of Present Constitution

The Constituent Assembly was set up in 1946. The elections were held for the first time for the Constituent Assembly. The Constitution of India was drafted by the Constituent Assembly, and it was implemented under the Cabinet Mission Plan on 16 May 1946. The members of the Constituent Assembly were elected by the provincial assemblies by a single, transferable-vote system of proportional representation.

The total membership of the Constituent Assembly was 389: 292 were representatives of the states, 93 represented the princely states and four were from the chief commissioner provinces of Delhi, Ajmer-Merwara, Coorg (Near Madikeri) and British Baluchistan. Chairman of the Constituent Assembly was Dr Rajendra Prasad.

The Constituent Assembly then proceeded to appoint a number of committees to deal with different aspects of the Constitution.

The reports of the Various Committees were considered by the Assembly and their recommendations were adopted as basis on which the Draft of the Constitution had to be prepared.

The Drafting Committee was appointed by a resolution passed by the Assembly on 29 August 1947.

  • Dr B. R. Ambedkar – Chairman
  • K M Munshi (Ex- Home Minister, Bombay)
  • Alladi Krishnaswamy Iyer (Ex- Advocate General, Madras State)
  • N Gopalaswami Ayengar (Ex-Prime Minister, J&K, member of Nehru Cabinet)
  • B L Mitter (Ex-Advocate General, India)
  • Md. Saadullah (Ex- Chief Minister of Assam, Muslim League member)
  • D P Khaitan (lawyer)
  • Sir Benegal Narsing Rau was appointed as the constitutional advisor. He later became First Indian Judge in International Court of Justice in 1950.

The Drafting Committee was tasked to prepare a Constitution in accordance with decisions of the Constituent Assembly on the reports made by the various Committees. The Draft Constitution contained 315 Articles and 8 Schedules. The Assembly finalised the Constitution on 26 November 1949 and it came into force on 26 January 1950.

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