THE ORIGIN AND EVOLUTION OF THE INDIAN CONSTITUTION

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This article is written by Burdith Ann Pereira of 3^rd semester of University of Law College, Gauhati University, Guwahati, Assam, an intern under Legal Vidhiya

ABSTRACT

The Indian Constitution has been subjected to various changes and has gone through a long history before coming into existence. The origin of the constitution dates back into the time of the coming of the East India Company into India as traders and then the shift of traders to gradually becoming colonial rulers. The article tells us about how the Indian Constitution stands strong even after facing multiple challenges right from the time of the Regulating Act of 1773 to its final book of rule post-independence in 1950. This article aims to briefly explain the Origin and Evolution of the Indian Constitution.

Keywords:

Presidencies, Governor General, Court of Directors, Councils, Legislation, Indian National Congress.

INTRODUCTION

The Britishers came to India in 1600 as traders in the form of The East India Company. Attracted by the stories of the fabulous wealth of India and fortified by the adventurous maritime activity of Elizabethan era Englishmen were eager to establish commercial contacts with the East. To facilitate such a venture some of the enterprising merchants of London formed themselves into a company. The company secured for it a Charter from Queen Elizabeth in December 1600, which settled its constitutions, powers and privileges. The Charter vested the management of the company in the hands of a Governor and 24 members who were authorized to organize and send trading expeditions to the East India. The Charter granted the company a monopoly of trade with the East. It had authority to keep an armed naval force for its security. The Charter was granted in the first instance for 15 years and was terminable on two years notice. It could be renewed if the interest of the Crown and the people were not prejudicially affected.

Fortified with the Charter, the Company started establishing its trading centers or factories at the several places in India. The first settlement of the company was at Surat (1612) which was established at a Royal “Farman” from the emperor Jehangir granting it land and concessions. This was followed by Musulipattam – Madras (1639) and later at Hariharpur in Mahanadi Delta (1690). Thus, in the course of time the factories at Bombay, Madras and Calcutta became the chief settlements or presidencies of the company. The administration of these presidencies was carried on by President and a Council composed of the servants of the company. During this period except in case of Bombay which had been ceded with full sovereignty to the British Crown wherever the Britishers settled they did so with consent of the Indian rulers. The natural consequences of their position would have been their submission to the local kings of the place but they managed to secure the permission of the local kings to retain their own laws. Concessions granted by the local rulers gradually established the company and the crown as territorial sovereigns in rivalry with other countries power and finally led the British Crown establishing its power.

ORIGIN AND EVOLUTION OF THE INDIAN CONSTITUTION

The Britishers had been ruling India for fairly large number of years, throughout these years we can see how the power to rule India shifted from the hands of the East India Company to the British Crown until India finally attained her independence from the hands of the colonial rulers. This shifting of power from the hands of the company to the British crown underwent a number of Acts, which will be discussed below.

Regulating Act 1773

This Act is of great constitutional importance as it was the first act that established a definite system of Government in India. It gave powers to the British Parliament for the first time to regulate the powers of the East India Company. We can also state that it laid foundations of central administration of India. This act – changed the constitution of the company in England, Recognized the Government of Calcutta, Bought the Presidencies of Bombay and Madras to some extent under the control of the Governor General of Bengal, Established a Supreme court at Calcutta.

The Act strengthened the control of British Government over the Company. Prior to the passing of the Regulating Act the three Presidencies were independent and separate from each other and had direct dealings with the Court of Directors in England the act appointed the first Governor General and his four councilors and vested in them the entire power of both civil and military of the Calcutta Presidency. They were also given legislative powers. Warren Hastings was the first Governor General under this Act. Thus, the Governor General and his councilors became the supreme authority of India.

This Act also paved a way to the establishment of a Supreme Court at Calcutta consisting of a Chief Justice with three other judges who were to be barristers of at least 5 years of standing. They were appointed by the Crown. The court was vested with civil, criminal, admiralty and ecclesiastical jurisdictions.

However, we can consider that the objectives of the act was good but it suffered from many defects for which the Act of Settlement of 1781 was introduced. Even this act could not alter the defects of the Regulating Act so the Pitts India Act 1784 was introduced, similarly preceded by the Charter Act of 1813 and the Charter Act of 1833 and finally came into the picture the last of the Charter Acts i.e., the Charter Act of 1853.

The Charter Act of 1853

This was last of the Chater Act, it separated the Legislative machinery from the executive. This act created a Legislative council of 12 members for India. The act made a separate Governor General for Bengal. This act also acted as a severe blow to the Court of Directors as it paved a way for the transfer of Indian territories to the Crown. However, the Sepoy Mutiny of 1857 accelerated this process and bought an end to the career of the East India Company.

The Government of India Act 1858

This act transferred Government of India from the company to the British Crown. The Boards of Control and the Court of Directors were abolished and their powers were transferred in the hands of one of her Majesty’s Secretary of State for India which was assisted by 15 members of a council known as “Council of India”. The transfer of Company’s Government to British Crown was announced by a Royal Proclamation made by the Queen of England. The proclamation had a great constitutional importance as it marked the direct rule of the Crown.

The Indian Council Act 1861

This act gave the legal framework of the Government which still prevails in India. Indians for the first time dealt with Legislative powers. The act gave the Governor General the power to make laws and regulations along with not less than or not less than 12 members of the council. The Governor Generals approval was necessary for every Bill only then it became an Act. In addition to this the Governor General had the power to veto any Bill.

The Indian council act of 1886, however, suffered from many defects. It gave immense power to the Governor General; nobody could question him. The political situation of India was very explosive at that time, this was a period when there was the rise of the Indian National Movement. However, the Indian National Congress was formed in 1855 and in its first session itself it raised the concern of its dissatisfaction with the existing government and demanded reforms in the Legislative Councils and gradually came into the picture The Indian Councils Act of 1892.

The Indian Council Act 1892

The Indian Council Act of 1892 increased the number of members in Central and Provincial Council, introduced the election system partially, enlarged the function of the councils. The Governor Generals council was not to have less than 10 members or more than 16 members. In Bombay and Madras the number was not to be less than 8 and more than 20. The maximum was fixed for Bengal as 20 and for North-Western Provinces and Oudh 15. The Councils were to have the power to discuss budgets and subject to certain restrictions to ask questions from the Government. But the President of the Council had the right to announce a question as void without stating any particular reason. Nevertheless, the act laid down the foundation of the representative government but it too had many flaws. The system of election was defective and the power of the Legislative Council was very limited.

The Indian Council Act of 1909

This Act increased the size of the Legislative councils, the council members number was raised up to 60 members. They had the power to discuss matters, ask questions on various matters yet not given the right to voting. This act was also referred to the Morley Minto Reform.

The Government of India Act 1919

The next constitutional development in India was the Montagu Chelmsford report which led to the enforcement of the Government of India Act. The Morley Minto reform failed to establish a parliamentary form of government which gave dissatisfaction to Indians. This act promised a responsible government to India. It introduced a dyarchy in provinces, the subjects were divided into Central and Provincial. There were two division of subjects, namely, reserved subjects and transferred subjects. The Indian elected members were responsible for the transferred themes whereas the British Governor controlled the reserved issues. The Governor General had overriding powers with regards to Legislature. The central laws couldn’t be challenged as the center had the power to legislate on any matters. In case of any conflicts the power was vested in the hands of the Governor General and not in the hand of the courts. Thus, the Government of India remained a unitary and centralized Government with powers once again vested in the hands of the Governor General and council instead of the courts.

With the failure of this Act came into the picture what came to be known as the Simon Commission, which was headed by Sir John Simon, who was sent to make a report on the demand for further reforms. The report was considered at the Round Table Conference with both representatives from British Government and of British India as well as the rulers of states. In accordance with the recommendations of the report amendments were made and the Government of India Act of 1935, was passed.

The Government of India Act 1935

The Government of India Act of 1935 is regarded as the second milestone responsible for the establishment of the Constitution. It was a lengthy document consisting of 321 sections with 10 schedules. The act established an All Federations for all the British Indian Provinces and such Indian States who would desire to come under Federation. While joining it the ruler of each state was required to sign an Instrument of Accession. This act also abolished Dyarchy at the center level and introduced it at the center. This act also marked the beginning of provincial autonomy. The Federal Legislature consisted of two houses, the Council of States and the Legislative Assembly. The powers of the Federal Legislature were extremely limited. If there was any difference between the two houses then the act provided a joint session for the two houses in resolving the issue. The Provincial Executive was to consists of the Governor and a Council of Ministers to advise him. The Governor was the head of the executive and he had the discretionary powers, powers exercised in his individual judgement, powers to be exercised on the advice of ministers. The act made a division of powers list – Federal List, Provincial list and the Concurrent List. The act also established a Federal Court which consisted of a Chief Justice and not more than 6 other judges. The court had 3 type of jurisdiction – original, appellate and advisory. However, the Government of India Act 1935, was greatly criticized by all parties of India.

The Cripps Mission

In the year 1942 the Britishers finally realized that they cannot be ignorant towards the demands and aspirations of the Indians any longer and hence they decided to send Sir Stafford Cripps to India to negotiate with the Indians with some set of rules proposed by him which came to be known as the Cripps Mission. However, the proposal by him was not accepted by the Indians and they rejected it, Indian leaders felt that these proposals founded the seeds of the partition of India. Nevertheless, the Labour Party came into power in England and their government was more sympathetic towards India and with this view the Cabinet Mission Plan was sent to India.

The Cabinet Mission 1946

The Cabinet Mission was sent to India on 4^th march 1946. It consisted three British Cabinet Ministers- Lord Pethick Lawrence, Sir Stafford Cripps and Mr. Alexander. The mission recommended the following proposals:

The union of India should embody both British India and the sates with certain exceptions of reserved subjects.
There was to be a lapse of Paramountcy of the Crown.
A new Constituent Assembly was to be elected for the purpose of framing a new Constitution
An Interim Government was to be set up having major political parties.

The proposals of Cabinet Mission were accepted and in July 1946 elections to Constituent Assembly took place.

The Indian Independence Act 1947

The provisions of Act were as follows:

The Act provided for the creation of two independent Dominions. India and Pakistan from 15^th August, 1947.
Each Dominion was to have a Governor-General who was to be appointed by the King.
The Constituent Assemblies of both Dominions were empowered to frame laws for their respective territories till the new Constitution came into force.
After August 15, 1947 the British Government was not to control the Dominion or the Provinces were to be governed by the Government of India Act, 1935.
For the time being, till the new Constitutions were framed, each of the Dominions and the Provinces were to be governed by the Government of India Act 1935.
The Post Secretary of the State for India was to be abolished and was taken over by Secretary of Commonwealth of Nations.
The Act proclaimed lapse of British paramountcy over Indian States.

The Indian Independence Act 1947, came into force on August 15, 1947, when the British rule in India came to an end.

1947 to 1950 – The Framing of the New Constitution

The struggle for Independence was thus over by 15^th August, 1947. But the attainment of independence was not the only hurdle to be crossed or get through with, the real task was to establish a democracy based on the ideas of justice, liberty, equality and fraternity; and framing the new constitution of India.

As provided by the Cabinet Mission Plan the Constituent Assembly came into being in November, 1946 with its members elected by the Provincial Assembly by indirect election. Out of 296 seats, the Congress had 211 seats and Muslim League 73 seats.

The Constituent Assembly was not a sovereign body but according to the terms of the Act of 1947 it became a sovereign entity. It was free to frame any Constitution it pleased and was free from the Cabinet Mission Plan.

The important figures of the Constituent Assembly were Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad, Dr. B.R. Ambedkar, and others respectively.

The first meeting of the Assembly was held on 9^th December, 1946 as the Sovereign Constituent Assembly of India. The Muslim League, however, boycotted the assembly and there was an environment of uncertainty in spite of this the assembly made a progress by adopting the “Objective Resolution” which later became the Preamble of India. Various committees were appointed and reports of these committees formed the basis of the preparation of the first draft of the constitution.

On August 29, 1947, a Drafting Committee was set up under the chairmanship of Dr. B.R. Ambedkar. The Draft of the Constitution was published in January, 1948. The constituent assembly held 11 sessions to discuss about the new constitution and the draft was considered for 114 days. We can state that the Constituent Assembly sat for 2 years, 11 months and 18 days in all.

The New Constitution of India was adopted by the Constituent Assembly on 26^th November 1949 and finally came into force on 26^th January 1950. This day is also celebrated as Republic Day to mark the enforcement of the new Constitution of India.

CONCLUSION

The Constitution of India declares India as a Sovereign, Socialist, Secular and Democratic Republic and assures its citizens Justice, Equality and Liberty and endeavors to promote Fraternity to its citizens. However, it wouldn’t be wrong to say that the makers of the Indian Constitution were far sighted and they knew that they should frame a constitution that would cater to the needs of its people according to the changing times, hence, they created a document that could be subjected to changes according to the changing times, which makes our Indian Constitution flexible and not rigid.

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