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HISTORICAL BACKGROUNDHISTORICAL BACKGROUNDHISTORICAL BACKGROUNDHISTORICAL BACKGROUNDHISTORICAL BACKGROUNDTO THE CONSTITUTIONTO THE CONSTITUTIONTO THE CONSTITUTIONTO THE CONSTITUTIONTO THE CONSTITUTION

Chronicle IAS Academy [3]

HISTORICAL

BACKGROUND TO

THE CONSTITUTION

CHRONICLEIAS ACADEMYA CIVIL SERVICES CHRONICLE INITIATIVE

It was under the British rule that the idea ofmodern constitutional form of governmentdeveloped. The development of IndianConstitution can be divided into two parts:

1. Development under the rule of the EastIndia Company (1765-1858); and

2. Development under the rule of the BritishCrown (1858-1947).

The rule of East India Company began in1765 when it received the Diwani of Bengal,Bihar and Orissa from the Mughal Emperor. Itcontinued to rule India till 1858. The Revolt of1857, convinced the British government of thenecessity of taking over the administration ofIndia directly in its own hands. Therefore, bythe Government of India Act of 1858, theadministration of India was transferred from thehands of the Company to the British Crown. Theperiod between 1858 and 1947, thus, constitutedthe second part of the constitutionaldevelopment in India. The Indian IndependenceAct, 1947 finished the rule of the British Crownin India, dividing it into two independent statesnamely Pakistan and Indian Union, and thepower to rule was handed over to theirrespective governments.

REGULATING ACT, 1773

The 1773 Act was the beginning of the effortsat British Parliamentary control over theCompany administration in India. This Act forthe first time presented a written constitutionfor Company rule in India and acknowledgedthe political and Administrative responsibilitiesof the Company. This Act was also perhaps thefirst step in the direction of the consolidation ofBritish rule and centralisation of administrationin India.

Provisions: The main provisions of this Actwere as follows:

(a) The Governor of Bengal was made the

Governor-General of the Company inIndia and the Governors of Madras andBombay were subordinated to him.

(b) A council of four members wasconstituted for the assistance of theGovernor-General. The council took itsdecision by the majority vote. TheGovernor-General, who was itsPresident, had a casting vote only inthe case of a tie.

(c) A Supreme Court, independent of theGovernor-General and the council, wascreated at Calcutta.

(d) The qualification for a vote in the Boardof Proprietor was raised from fivehundred pounds to one thousandpounds and that too was limited onlyto those who kept their share with theCompany for at least a year.

(e) The Directors of the Company were tobe elected for four years. One-fourth ofthem were to retire every year and hadto remain aloof from the post for at leasta year. The Directors had to submit theyearly financial report of the Companyto the Chancellor of Exchequer andreport concerning the military andpolitical affairs of the Company to theSecretary.

Defects: The Act failed in its objective.Instead of improving, it mismanaged the affairsof India because of its inherent defects.

(a) It gave no power to the Governor-General against his council. It led toconstant friction between him and hiscouncil.

(b) It did not clarify the nature ofsubordination of the Governors ofMadras and Bombay to the Governor-General. It led to disloyalty of theGovernors to the Governor-General andpersonal and contradictory policies


particularly in their dealings with thenative rulers.

(c) The jurisdiction of the Supreme Courtand the laws which it had to enforcewere not clarified. Therefore, the newjudicial system created certain anomaliesas Warren Hastings, the then Governor-General had already set up a judicialsystem in Bengal.

In practice, the administration of India wascarried on, only for two years, i.e., 1774 to 1776though legally, its framework continued till 1784.

AMENDING ACT OF 1781

The Amending Act of 1781 tried to remedythe defects and shortcomings of the RegulatingAct of 1773, as follows:

(a) The actions of the Public Servants ofthe company in their official capacitywere exempted from the jurisdiction ofthe Supreme Court.

(b) The Supreme Court was to havejurisdiction over all the inhabitants ofCalcutta and was to administer thepersonal law of the dependent.

(c) This Court was to consider and respectthe religious and social customs ofIndians while enforcing its decrees andprocesses. The Government was also tokeep these in mind while making rulesand regulations.

(d) Appeal could be taken from theProvincial courts to the Governor-General in Council that was to be thefinal court of appeal.

(e) The rules and regulations made by theGovernor-General in Council were notto be registered with the Supreme Court.

PITT’S INDIA ACT, 1784

The Amending Act of 1781 also failed in itsmission to bring a provision for associatingIndians with the work of legislation. The majorAct was the Pitt’s India Act of 1784. TheCompany was obliged to seek loan from theBritish Government again which provided it ananother opportunity to interfere in theadministration of the Company.

The provisions of Pitt’s India Act were asfollows:

(a) The commercial and political activitiesof the Company were now separated.

(b) For the supervision of civil, military andrevenue matters, a Board of Controlconsisting of six members was set up inEngland. The Chancellor of Exchequerand the Secretary of State who werethe members of the British Cabinet wereex-officio members of this Board. Themembers were to be appointed anddismissed by the British Crown.Members of the Board had access to andwere to be furnished with all the papersof the Company.

(c) A secret committee of three Directorswas to transmit the orders of the Boardto India. The Board of Proprietors lostthe right to rescind, suspend or revokeany resolution of the Directors approvedby the Board.

(d) The members of the Governor-General’sCouncil were to be three instead of four.The Governors of Bombay and Madraswere completely subordinated to theGovernor-General.

(e) The Company was asked to follow thepolicy of non-intervention.

(f) Only covenant servants were in futureto be appointed members of the Councilof Governor-General. This Act gave theBritish Government a measure of controlover the Company’s affairs. In fact, theCompany became a subordinatedepartment of the state.

In 1786, some fresh regulations were framed.One of them empowered the Governor-Generalto act even against the wishes of his Council.Another regulation made him the Commander-in-Chief of the army of the Company as well.

The Act removed the defects of theRegulating Act which was its primary purpose.The power was centralized in the hands of theGovernor-General. It brought unity and stabilityin administration. The formation of the Boardof Control and the inclusion of the two BritishCabinet Ministers in it reduced the power of theDirectors and the Proprietors and instead,increased the rights of British Government in theadministration of India.


CHARTER ACT, 1793

By this Act, the Governors were alsoempowered to act against the wishes of theircouncils in certain special circumstances. Themonopoly of the Company to trade in the Eastwas also secured for the next 20 years.

(a) The salaries of the members of the Boardof Control and other functionaries ofthe Company were to be drawn fromthe Indian exchequer.

(b) The Governor-General and theGovernors could now override thedecision of their respective councils.

(c) The Company got monopoly of tradewith India for another twenty years.

(d) The Governor-General was given greatercontrol over the presidencies of Bombayand Madras.

(e) The Commander-in Chief was not to bea members of the Governor-General’sCouncil.

CHARTER ACT, 1813

The 1813 Act, however, deprived theCompany of the monopoly of trade in India.While the powers of the three councils of Madras,Bombay and Calcutta were enlarged, they werealso subjected to greater control of the BritishParliament. All regulations made by the threecouncils were thereafter required to be laid beforethe Parliament.

(a) It was specifically cleared that thesovereignty of the British Empire in Indiawas in the hands of the British Crown.

(b) The monopoly of the Company to tradewith India was abolished and all Britishtraders were allowed to trade with India.

(c) The monopoly of the Company to tradewith China in opium and tea, however,remained secured.

(d) The Christian Missionaries were allowedto come to India after seekingpermission of the government.

(e) The Company was required to spendrupees one lakh annually out of therevenues of India on the education ofIndians.

Thus, by this Act, the right of the BritishCrown over the possessions and administrationof India was asserted, the principle of state

responsibility for educating the subjects wasaccepted and the missionaries were provided thefacility of propagating Christianity in India. Butthe worst clause of this Act concerned with trade.Britain had started producing machine-madegoods. It required raw materials from India anda good market for finished goods. This facilitywas provided to all British traders by abolishingthe monopoly of the Company to trade withIndia. It resulted in enhanced economicexploitation of India by Britain.

CHARTER ACT, 1833

By this Act the Governor-General of Bengalwas designated as the Governor-General of India.This also provided fair and impartial treatmentof Indians in the matter of selection for stateservices. According to Lord Morley, the Act of1833 was the most important Act passed by theParliament till 1909.

(a) The Company was allowed anothertwenty years to administer Indianterritories “in trust of His Majesty, Hisheirs and successors.”

(b) The Company lost its monopoly ofChina trade and was asked to close itscommercial business as early as possible.

(c) All restrictions on European immigrationinto India and acquisition by them onland and property in India wereremoved, legalising EuropeanColonization of India.

(d) The Governor-General of Bengal becamethe Governor-General of British India;all powers, administrative and financial,were centralised in the hands of theGovernor-General in Council.

(e) The Governors of Madras and Bombaywere drastically deprived of theirpowers of legislation and left only withthe right of proposing to the Governor-General in Council projects of the laws,which they thought expedient.

(f) The Executive Council of the Governor-General was enlarged by the additionof the fourth member (Law member) forlegislative purposes. With it began theIndian legislature.

(g) A law commission was constituted forconsolidating, codifying and improvingIndian laws.


(h) The Act threw open to all, irrespectiveof religion, place of birth, descent,colour, etc., services under theCompany.

(i) A new province, North WesternProvince was created which includedthe District of Agra and WesternAwadh.

Macaulay, who was the first law member inthe Council of the Governor-General, did a usefulwork by codifying the laws in India. But theopening of the services to all persons on meritremained only an ideal.

CHARTER ACT, 1853

This was the last of the Charter Acts. TheIndian Civil Service was opened for all. For thefirst time, the legislature was given the right toframe its own rules and procedure.

(a) The British Parliament was empoweredto give the administration of India tothe British Crown at any time of itschoice.

(b) The number of the directors of theCompany was reduced from twentyfour to eighteen. Six among them wereto be appointed by the British Crown.Henceforth, the members of the Councilof the Governor-General and theGovernors were to be appointed withthe consent of the Crown.

(c) The system of competitive examinationwas introduced for the civil services.

(d) The Board of Directors was dispossessed ofits power of patronage as services thrownopen to competitive examinations.

(e) The Board of Directors was empoweredto constitute a new presidency or to alterthe boundaries of the existing ones toincorporate the newly acquiredterritories.

(f) A separate Lieutenant-Governor wasappointed for the administration ofBengal.

(g) Six additional members were appointedto the Executive Council of theGovernor-General to help him inframing laws. The Governor-Generalhowever, possessed the right to refusetheir advice.

(h) The salaries of the members of the Boardof Control, its Secretary and otherofficers were to be fixed by the BritishGovernment but were to be paid by theCompany.

(i) Questions could be asked and the policyof the Executive Council could bediscussed though the Executive Councilcould veto a bill of the LegislativeCouncil. Discussion in Council becameoral instead of in writing, bills werereferred to select committees instead ofa single member, and the legislativebusiness was conducted in publicinstead of in private.

This Act was important only in two respects,one, the Crown could take up the governanceof India in its own hand at any time. Second, aminiature though ineffective legistive council wasat least established at the centre. Contrary to theintention of the framers of the Act, it became'An Anglo-Indian House of Commons' whichstarted questioning the Executive Council andrefused to submit to the wishes of the Governor-General concerning legislation.

GOVERNMENT OF INDIA ACT, 1858

While assuming direct responsibility for thegovernance of India, the Queen issued aProclamation on November 1, 1858, whichcontained the principles which were to form thebasis of the future government of India. It assuredthe Indian princes that all treaties andengagements made by the Company would bescrupulously observed by the Crown. Itdisclaimed for further territorial possessions;promised to respect right, dignity and honourof the princes; assured its determination tofaithfully and conscientiously fulfil its obligationstowards the Indian people and to consider themat par with other British subjects; promised tostimulate industry, to promote works of publicutility and to govern the country for the benefitof all subjects. The Proclamation assuredcomplete freedom of religious belief and worshipto the people and promised that nodiscrimination shall be made on the basis of raceor creed in matters of appointments to officesunder the Crown. The Proclamation is oftendescribed as the Magna Carta and continued tobe the basis of the government's policy till 1917.Subsequently, the Government of India Act waspassed in 1858.


(a) The administration of India was handedover to the British Crown.

(b) The Board of Directors and Board ofControl were abolished. All their rightswere handed over to the Secretary ofState for India who was a member ofthe British Parliament and the Cabinet.

(c) The Secretary of State for India was tobe assisted by a council called the IndiaCouncil. It consisted of 15 members. Atthe first instance, 8 of them wereappointed by the Crown and 7 amongthem by the Directors. This part ofadministration was called the HomeGovernment.

(d) The Secretary of State was bound to actaccording to the wishes of the IndiaCouncil concerning the services andeconomic affairs. In rest of the matters,he could refuse to accept its advice. Hehad to submit an annual report to theBritish Parliament concerning the affairsof India.

(e) The Governor-General, being thenominee of the Crown in India, wascalled the Viceroy as well. He wasbound to obey the instructions of theSecretary of State.

Administration became highly centralised.All power-civil, military, executive and legislative-came to be vested in the Governor-General inCouncil who in turn was responsible to theSecretary of State. The authority of the Secretaryof State over Indian administration was absolute;administration was bureaucratic with littleconcerns for public opinion in India. Yet, the Actmarked an important step in the constitutionalhistory of India. It is said that it removed someof the contradictions, fictions and myths createdby the Pitt's India Act.

INDIAN COUNCILS ACT, 1861

Soon after, it was deemed necessary by theGovernment to initiate a policy reform of theIndian administration and to consider ways andmeans of establishing closer contacts with thepublic opinion in the country and taking non-official member both European and Indian intothe Council of the Government. This Act markedthe beginning of that policy of the British whichhas been called 'the policy of association' or 'thepolicy of benevolent despotism', because for the

first time, an attempt was made to include theIndians in the administration of the country.

(a) A fifth member was added to theExecutive Council of the Governor-General as the finance member (agentleman of legal profession). TheGovernor-General was empowered toframe rules for the convenienttransaction of business by the Council.This power was used by Lord Canningto introduce the portfolio system in theGovernment of India.

(b) For the purpose of legislation, theViceroy's Executive Council wasexpanded by the addition of not lessthan six and not more than twelveadditional members, not less than halfof whom were to be non-officials. Someof the non-official seats were offered tonatives of high rank. Thus, a minuteelement of 'popular' participation wasintroduced in the legislative process.

(c) The function of the Legislative Councilso created was trickily limited tolegislation; it could have no control overadministration or finance or right ofinterpellation.

(d) The legislative powers were restored tothe Presidencies of Madras and Bombay.But no laws passed by the provincialcouncils were to be valid until theyreceived the assent of the Governor-General.

(e) The Governor-General was empowered,in case of emergency, to issue, withoutthe concurrence of the LegislativeCouncil, ordinances which were not toremain in force for more than sixmonths.

(f) The Governor-General was empoweredto create Legislative Councils in theprovinces of North West and Punjab.These were created in 1886 and 1897respectively.

(g) The Governor-General in Council wasempowered to create new provinces,appoint Lieutenant Governors anddemarcate the boundaries of theprovinces.

This Act made a beginning of the legislaturesin India both at the centre and the provinces.


Defects: However, the Act failed to serve thepurpose for which it was made.

(a) Its primary purpose was to introducemeasures of knowing the wishes of theIndians. The provision of nominatingnon-official members in legislature wasmade for the same purpose. But, theprovision remained a failure becausemostly princes or big landlords, who, inno way represented the Indian publicwere nominated as members. Thecouncils, in fact, were there simply tostamp the wishes of the executivecouncils. Thus, in a way, the Act was areactionary step in comparison with theAct of 1853.

(b) Besides, the Legislative Council, in fact,had no power either concerninglegislation or controlling the executives.The power to frame Ordinance to theGovernor-General was an additionalpower to him. Therefore, the Act failedto serve any useful purpose.

The only thing in its favour was that, bycreating Legislative Council, it laid down thefoundation of that system of administrationwhich lasted till the end of the British rule inIndia.


In 1891, the Indian Nationl Congressreiterated its conviction that India could not begoverned well until her people were allowed,through their elected representatives, a potentialvoice in the legislatures. The passage of theIndian Councils Act, 1892 was mainlyinfluenced by the resolutions of the IndianNational Congress adopted in its sessions in 1889to 1891.

(a) The number of the additional membersin the Legislature at the centre wasincreased. The minimum number wasfixed at ten and maximum twenty.Among them at least ten were to benon-officials.

(b) The number of additional members inProvincial Legislatures was alsoincreased. The minimum number wasfixed at eight and the maximum twenty.The number of non-official membersamong them was also increased. The

number of total members varied fromprovince to province. In Uttar Pradeshit was kept at fifteen while in Madrasand Bombay it was twenty.

(c) The members of the Legislative Councilscontinued to be nominated by theGovernor-General and Governors. But,provision was made in this Act tonominate them on the basis ofrecommendation by certain organizedassociations like 'Calcutta Chamber ofCommerce, Zamindars' Association,University Senates. District Boards of theProvincial Legislature were alsoempowered to send theirrecommendations. Thus, the Act madeprovision for indirect election for themembers of the Legislative Councils.

(d) The powers of the Legislative Councilswere enhanced a little. They wereallowed to discuss the annual budgetsthough they could not vote on them.The members had the right to askquestions to the executive councillors.But a prior notice of six days was to begiven in such cases. Besides, the memberscould not ask supplementary questionsand the President of Council couldrefuse permission for asking anyquestion.

It was certainly a step ahead from the Act of1861. The increase in the number of Indianmembers in the Legislative Councils, provisionof their indirect election and enhancement oftheir powers were all in the direction of gradualestablishment of Parliamentary government.

Defects: This Act also failed to satisfy theIndian Public opinion for the following reasons:

(a) The non-official members were in noposition to influence the decisions of thegovernment.

(b) The powers of the councils both at thecentre and the provinces were muchlimited.

Besides, when the partition of Bengalenraged the Indian public opinion, the rise ofExtremism within the All India Congress ledIndians towards the path of struggle against theBritish. Therefore, the demand of furtherconstitutional reforms came to the fore front verysoon.



At its session in 1906, the Congress declaredits goal of "Swaraj" which to the moderates meantParliamentary self-government within the BritishEmpire and to the extremists independence. Italso demanded the immediate expansion of theLegislative Councils to secure a large and trulyeffective representation of the people and largecontrol over the financial and executiveadministration of the country.

The establishment of Muslim League in 1906also gave the Government a chance to supportMuslim communalism against Indiannationalism. A new scheme of reforms couldcertainly be utilized to inflame Muslimcommunalism. Thus, the necessity of furtherreforms arose to check the rise of extremism inIndian politics, to win over the moderates inCongress to the side of the government and tobuttress Muslim communalism. The thenSecretary of State for India, Lord Morley, andthe then Viceroy, Lord Minto, jointly worked outcertain constitutional reform proposals duringthe years 1906-1908. Therefore, a committee wasappointed by the Government of India topropose a scheme of reforms. The committeesubmitted its report and when finally everythingwas settled between the Governor-General andthe Secretary of States for India, the Act of 1909was passed by the British Parliament.

(a) The number of members of theLegislative Council at the centre wasincreased from sixteen to sixty.

(b) The number of members of the ProvincialLegislatures was also increased. It wasfixed at fifty in the provinces of Bengal,Madras and Bombay and for the rest ofthe provinces it was thirty.

(c) The members of the Legislative Councils,both at the centre and in the provinces,were to be of four categories:(i) Ex-officio Members: The Governor-

General and the members of theExecutive Council at the centre andthe Governors and the members oftheir Executive Councils in theirrespective provinces were suchmembers.

(ii) Nominated Official Members: Themembers nominated by theGovernor-General at the Centre and

by the Governors in their respectiveprovinces from among thegovernment officials.

(iii)Nominated Non-Official Members:The members nominated by theGovernor-General at the centre andby the Governors in their respectiveprovinces but who were not officialsof the government.

(iv)Elected Members: The memberselected by the Indian people ofdifferent categories.

(d) The Act did not produce territorialrepresentative system in India. Itintroduced professional and communalrepresentative system which has beendescribed as the separate or communalelectorate system in India. Theconstituencies for the purpose ofelections were, therefore, framed onprofessional and communal basis. Forexample, at the centre, from among the27 elected members five were to beelected by the Muslims, six by theZamindars, one by the Muslimlandlords, one by the Chamber ofCommerce of Bombay, one by theChamber of Commerce of Calcutta and13 by the non-official members of allprovincial legislative councils. The sameprocedure was adopted for the electionsof the members of the provincialLegislative Councils.

(e) At the centre, the majority was of theofficial members but in provinces, thenon-official members were kept in themajority. However, the majority was notthose of the elected mem ers becausethe non-official members included non-official nominated members as wellamong them.

(f) The powers of the Legislative Councilswere also enhanced. The members werepermitted to discuss the budgets, suggestamendments and even to vote on themexcept in case of those items which wereincluded in them as the non-votableitems. They could initiate legislationconcerning public welfare, could voteon the bills presented by thegovernment and could ask questions


from the members of the ExecutiveCouncil. Supplementary questions couldalso be asked by the members who hadput up the original question. But theGovernor-General and Governors wereempowered to refuse the advice of theconcerned Legislative Council.

(g) The Secretary of State for India wasempowered to increase the number ofthe Executive Council of Madras andBombay from two to four. TheGovernor-General was also given thispower in concern with the rest of theprovinces but with the prior permissionof the Secretary of State.

(h) Two Indians were already nominatedto the Council of the Secretary of Statefor India in 1907. In 1909, the Governor-General was also empowered tonominate one Indian member to hisExecutive Council. The first person whowas nominated to this post was Mr. S.P.Sinha, who, later on, was given the titleof Lord.

It was believed that the Government hadconsulted the moderate leaders, Gopal KrishnaGokhale before introducing these reforms.Therefore, the All India Congress expressed itssatisfaction over them in 1908. The Act certainlymarked the zenith of the 'policy of association'or the 'policy of the benevolent despotism,'pursued by the English in India. With thisreform Act the Indians experienced theparliamentary system of government.

Defects: But the Act suffered from certainserious defects. The All India Congress very soonrealized it and started criticizing it.

(a) The framers of the Act had no intentionto establish a responsible government inIndia even in the remote future. Morleyhad said: "Colonial government was amere moon-shine". While Englishmanremarked, "These reforms were onlyhalf-way house."

(b) The Act provided indirect elections.Therefore, the electorates received nopolitical education and no understandingwas possible between them and theelected representatives.

(c) The members of the Legislative Councilsrepresented different communal and

class interests and therefore, were notin a position to work unitedly.

(d) The official majority was kept at theCentre while in the provinces, thenominated non-officials mostly favouredthe government. Therefore, the electedmembers were in no position to assertthemselves. It was one cause of theirfrustration because of which theypursued no constructive purpose butsimply engaged in criticizing the policiesof the government.

(e) The qualifications of the voters and themembers of the councils were kept veryhigh so that no ordinary man couldbecome the party to any of them. Therules of disqualifications for them werealso so framed that no extremist couldbecome a member of a Council.

(f) The powers of the Legislative Councilswere also very limited and theGovernor-General and Governors alsopossessed the right to vote their advice.It was no way a parliamentarygovernment. Therefore, it has beenremarked that "Parliamentary usage wasadapted without parliamentarygovernment and the result was fiction."

(g) But the worst feature of the Act wasthe introduction of separate orCommunal Electorate system in India.It divided the Indian people intodifferent groups and classes.Particularly, it inflamed in the partitionof the country. The Act, therefore, wasdenied gradually by all sections of theeducated Indians.

The reforms introduced by the Act affordedno answer, and could afford no answer, to thedemand for responsible government, since thecouncils set up therefore lacked responsibilitywhich was the soul of popular government.


Subsequent to the Minto-Morley Reform Act,the Government of India Act, 1915 was passedmerely to consolidate all the precedingGovernment of India Acts so that the existingprovisions relating to the government of Indiain its executive, legislative and judicial branchescould be had from one enactment.


The Act of 1909 failed to satisfy even theModerates in India. The Indian nationalismbecame more aggressive and gradually theCongress came under the influence of theExtremists. The First World War started in 1914and the British declared that they were fightingthe war for the safety of democracy in the world.The Indians, therefore, helped the Government.They felt that, after the war, probably some sortsof self-government might be granted to them.

The Home Rule League was establishedduring this period which demanded completeindependence in internal affairs. The All IndiaCongress and the Muslim League made theLucknow Pact with each other and put a jointdemand before the government. All thesecircumstances necessitated further constitutionalreform in India.

On 20 August 1917, Montague, the thenSecretary of State for India, made a historicstatement in the House of Commons. Thestatement for the first time in India's chequeredhistory under British rule, promised theestablishment of "responsible government" inIndia.

The report on Indian constitutional reformsknown as Motague-Chelmsford (or MontfordReport) prepared jointly by Montague, secretaryof State for India and Lord Chelmsford, theViceroy of India, was published in July 1918.

Without paying any heed to the demand forthe status of self-governing dominions, the reporthad most mischievously made the concessionsconceded by the Congress to the League onSeparate Communal Electorates under theLucknow Pact of 1916 between the Congressand the League as the basis for Montague-Chelmsford Reforms.

The Government of India Act, 1919 basedon the Montague-Chelmford Report, sought tomake it abundantly clear that the British wereprepared to concede only "the gradualdevelopment of self-governing institutions, witha view to progressive realisation of responsiblegovernment." The time, manner and space ofeach advance of constitutional progress was tobe determined only by the British Parliament andnot based on any self-determination by thepeople of India.

(a) The number of the members of theCouncil of the Secretary of State (India

Council) was fixed to be minimum eightand maximum twelve. Three amongthem were to be necessarily Indians.They were appointed for five years. TheSecretary of State was bound to followthe advice of the Council in mattersrelating to finances and the services inIndia.

(b) A high commissioner for India wasappointed to purchase articles in foreigncountries for the Indian government, tolook after the Indian students studyingabroad, safeguard the pension, etc. ofthe retired British officials in Britain andthe rest. He was paid by the Indiangovernment and was responsible to theGovernor-General in Council for hisactions.

(c) The Secretary of State, in practice, losta part of his powers. It was expectedfrom him that he would not interfere inthe administration of the provincesconcerning the 'Transferred Subjects'and in matters on which the Governor-General and his Legislative Councilwere in agreement.

(d) The Governor-General was givenfreedom to nominate as many membersto his Executive Council as he desired.The councillors were nominated for fiveyears and could be re-nominated. It wasnecessary for them that they must haveserved in India for at least ten yearsprior to their appointment as councillors.Among them at least two were to beIndians.

(e) The Central Legislature consisted of thefollowing two houses:

The Council of the State: It was the upperhouse and consisted of 60 members. Amongthem 33 were elected and 27 were nominatedby the Governor-General. The members wereelected directly but the qualifications of thevoters were kept high. Each province wasallotted a fixed number of representatives in it,in proportion to its population. Its duration wasfive years.

The Legislative Assembly: It was the lowerhouse and consisted of 144 members. Amongthem 103 were elected and 41 were to benominated by the Governor-General. Each


province sent a fixed number of representativesto it. The number was fixed on the basis of itspopulation. They were elected directly but thequalifications of the voters kept so high that only12% Indians were entitled to vote for it. Itsduration was three years.

Both Houses enjoyed equal powers in mattersof legislation, in case of a tie, the Governor-General was to call a joint meeting where thematter was decided by the majority vote. Eachof them elected its own president. The ExecutiveCouncil was not responsible to the legislatureand the Governor-General was not responsibleto the Legislature and the Governor-General hadthe right to refuse its advice. But its power ofasking questions from the councillors, initiatelegislation, etc. enhanced.

(f) The provincial Legislature consisted onlyof one house, which was called theLegislative Council. The 70% memberswere elected directly by the people andrest 30% were nominated by theGovernors of their respective provinces.The powers of the councils were alsoenhanced a little more but theGovernors had the right to refuse theiradvice and frame ordinances accordingto their wishes.

(g) The Governors were given 'Instrumentof instructions' which guided them incarrying their administration in practice.

(h) The communal electorate system wasadvanced further. The Act providedseparate electorates to the Sikhs, theAnglo-Indians, the Indian Christiansand the Europeans.

(i) But the primary novelty of Act of 1919was the establishment of Dyarchy in theprovinces. For this purpose, first, therights of the central and provincialgovernments were divided. Two listswere prepared:(1) The Central List which included all

Indian affairs like, defence, foreignaffairs, railway, telegraphs, foreigntrade, currency, etc. and

(2) The Provincial List, which includedaffairs like, health, sanitation,education, public works, irrigation,prison, police, justice, famines, etc.The residuary powers viz. the power

which were left out of these listswere given to the Centre. Next, theprovincial subjects were divided intotwo heads: (1) The Reserved i.e.finance, police, maintenance of peaceand order, revenue, publication ofbooks and newspapers, famines, etc.and (2) The Transferred i.e. health,sanitation, local self-government,public works, agriculture,cooperative societies, etc.

The administration of the Reserved subjectswas carried on by the Governor with the help ofhis Executive Councillors while he administeredthe transferred subjects with the help of hisIndian Ministers who were chosen by him fromamong the members of Legislative Council andwere supposed to be responsible to it, thoughtheir dismissal depended on the Governor. Bythis arrangement, the executive of the provincewas divided into two parts, the Governor-in-Council and the Governor-in-Ministers.

The first one was the irresponsible part ofthe Executive as its members were in no wayresponsible to the Legislative Council. The secondone was the responsible part of the executivebecause the Indian ministers were chosen by theGovernor from among the members of theLegislative Council and were supposed to beresponsible to it. This system of administrationwhich was carried on in the provinces by theAct of 1919, has been called the Dyarchy.

The Dyarchy was introduced in Bengal,Madras, Bombay, Uttar Pradesh, Punjab, Bihar,Orissa, Madhya Pradesh, and Assam in 1921and, much later in 1932, in North-West Frontierprovince. With breaks here and there sometimesthe system was continued in the provinces tillApril, 1937.

Shortcomings of the 1919 Act: The Act of1919 had many shortcomings. It did not fulfilthe demand for responsible government. Also theprovincial Legislatures could not discuss bills ona number of subjects without the clearance ofthe Governor-General. Even though theoretically,the Central Legislature remained supreme andcompetent to legislate over the whole field, andnot withstanding any allocation of powersbetween the centre and the provinces, "thepreviously highly centralized government" wasnot intended to be converted into a federal oneand the constitution of British India continued


to be that of a unitary state.

Above all, the system of dyarchy in theprovinces was a dismal failure, The Governordominated. In the absence of power of the purse,the ministers could not effectively implementtheir policies. Also, the Ministers were notcollectively responsible to the Legislature andwere only individually appointed advisors to theGovernor.

The Congress and Indian opinion remainedunreconciled and pressed for further reforms tomake the administration more representative,responsible and responsive. World War-I wasover and there was an air of general expectation.But what came were the special legislativeproposals for repressive measure known as theRowlatt Bills. These were passed despitewidespread opposition, Satyagraha, Non-cooperation and Khilafat movement for Swarajunder Gandhiji's leadership.

Yet, the Act of 1919 brought certainadvantages also. It was certainly a step aheadtowards responsible government. It marked theend of the policy of benevolent despotism andthe beginning of the responsible government. Theelections to the legislatures created politicalconsciousness among the people. The Indianscame in direct contact with the administrationfor the first time which provided them usefulexperience. The number of the Indians increasedin the Civil Services. The Indian women got theright of franchise for the first time. Many usefulmeasures were taken by Indian Ministers indifferent provinces, i.e. 'The Bombay PrimaryEducation Act'; 'The Bombay Local Boards Act,1923'; 'The Calcutta Municipal Act, 1926, etc.


Under the 1919 Act, a commission wasscheduled to be appointed in 1929 to inquire intoand report on the working of the Act and makefurther recommendations for reforms. In viewof the discontents, the Indian StatutoryCommission—the Simon Commission-wasappointed in 1927 i.e. two years before schedule,its all-white composition hurt Indian sentimentfurther.

The Congress was gradually veering roundaccepting complete independence as its goal. Atthe Calcutta Session, however, it was decidedto give one last opportunity to the British to

concede Dominion status, the 1929 LahoreSession of the Congress adopted a resolution onPurna Swaraj or complete independence. A CivilDisobedience Movement began with a call tobreak the Salt Tax law and Gandhiji's DandiMarch to reach the sea.

Finally, the Government decided to hold aRound Table Conference in London onNovember 1930 to consider constitutionalreforms. It was followed by two more suchconferences.

After the Third Round Table Conference, theBritish Government published a white paper inMarch 1933 containing an outline of a newconstitution. The scheme contained provisionsfor a federal set up and provincial autonomy. Itproposed Dyarchy at the centre and responsiblegovernments in the provinces.

The British Parliament constituted a JointCommittee of the two houses to further considerthe Government's scheme formulated in thewhite paper. The Joint Committee with LordLinlithgow as its Chairman had conservativemembers in majority. Representatives of BritishIndia and of the Princely States where invited togive evidence before the committee as witnesses.The Joint Committee submitted its report inNovember 1934 which reiterated that federationwould be established only when at least 50% ofthe Princely States were prepared to join it.

On the basis of the Report, a Bill wasprepared which was introduced in the BritishParliament on 19th December, 1934. After itshaving been passed by the two Houses and Royalassent being given to it on 4th August, 1935, itbecame the Government of India Act, 1935.

The Act, besides proposing changes in theHome Government, suggested following changesin the administration of India:

(a) A federal government would beestablished in India which wouldinclude the native states as well.

(b) Dyarchy, the type of government whichwas established in the provinces by theAct of 1919, would be established atthe Centre.

(c) The provinces would be given completeautonomy to govern themselves. Theadministrative subjects were divided intofollowing three heads for this purpose:


(1) The Federal List which included thesubjects assigned to the CentralGovernment.

(2) The Provincial List which includedthe subjects assigned to the provinces.

(3) The Concurrent List which includedthe subjects assigned both to thecentre and the provinces for thepurpose of legislation and execution.However, it was made clear that anAct of a province would not beimplemented to the extent it wouldcontradict any act of the CentralGovernment on the same subject.

The provinces were given autonomy tolegislate and govern matters concerning subjectsgiven in the provincial list. The CentralGovernment wasn't expected to interfere in theaffairs of the provinces in normal circumstances.Besides, there remain no councillors in theprovinces. The Governors were expected to rulewith the help and advice of Indian ministerschosen from among the members of theprovincial legislatures. The Act, thus, establishedthe system of administration which has beencalled the provincial autonomy.

(d) A federal court was established at thecentre.

(e) The Reserve Bank of India wasestablished.

(f) Burma and Aden were separated fromIndia.

(g) Two new provinces, Sindh and Orissawere created and a full governor wasnominated for the province of North-West Frontier Province.

(i) The separate or communal electoratesystem was continued as before. Butthe qualifications for the voters andmembers were reduced both at thecentre and the provinces. It increasedthe number of voters. There were only5% of people as voters by the Act1919. By the Act of 1935 their numberbecame 13% of the population.

These principles formed the generalframework of the Act of 1935. The Broad detailsof it were as follows:

Home Governments: The Act of 1935 alsoproposed changes in the structure of the Home

Government in the following way:

(1) The Indian Council was abolished. Inits place a few advisers were nominatedto help the Secretary of State for India.Their minimum number was 3 and themaximum could be 6. At least half ofthem were to be from among those whoshould have served in India for at leastten years and should not have remainedoutside it for more than two years priorto their nomination as advisors. Theirperiod of tenure was kept five years. Incertain matters such as the services,their advice was binding on theSecretary of State.

(2) The Secretary of State was not expectedto interfere in those matters which theGovernor dealt with the help of theIndian Ministers.

(3) The High Commissioner for India wasto be appointed by the Governor-General for a period of five years.

The Federal Government: Changes madethrough the Act of 1935 in the federal structureof the government were the following:

(1) The Governor-General remained thehead of the central administration,legislation and financial bill could beplaced in the central legislature withouthis consent. He had extensive powersconcerning his special responsibilities.He had the power to frame ordinancesand, in certain matters, he could act onhis own discretion. The Act of 1935divided the federal subjects into twoparts, the Reserved and the Transferred.He administered the Reserved subjectswith the help of the Union Ministerschosen from the legislature. Thus, theexecutive at the centre was divided intotwo parts-the Governor-General inCouncil and the Governor-General andhis Indian Ministers. This meant theestablishment of Dyarchy at the Centre.

(2) The Federal Legislature was to consistof two Houses: the Council of States andthe Federal Assembly. The upper house,the Council of State was to consist of260 member while the Federal Assemblywas to consist of 375 members from thelegislatures of the British provinces


while 125 were to be nominated by therulers of their respective states. TheCouncil of State was a permanent body.However, one third of its membersretired triennially. The tenure of theFederal Assembly was five years.Legally, the Central Legislature couldframe any law for India but, in fact, itspowers were limited. The Governor-General could refuse its advices, couldframe ordinances and the Legislaturehad no power over three fourth part ofthe Budget.

Provincial Government: Efforts were alsomade to bring changes in the nature of theprovincial structure of India.

(1) The head of the administration of theprovince was the Governor. He wasassisted in his task by a Council ofMinisters who were to be chosen by himfrom among the members of theprovincial legislature and wereresponsible to it. Legally, it meant thatthe Act of 1935 established responsiblegovernment in the British provinces. Asthe Central Government and the HomeGovernment were not expected tointerfere with provincial affairs,particularly when the Governor and hisMinisters were in agreement with eachother, the newly established system wascalled the provincial autonomy. But, infact, it was not so. The Governor enjoyedextensive powers concerning his specialresponsibilities. He was empowered toframe ordinances and could act on hisown discretion. In emergencies, theGovernor could take the entireadministration of the province in hisown hands.

(2) The composition of provinciallegislatures varied from province toprovince. The legislatures of Madras,Bombay, Bengal, Uttra Pradesh, Biharand Assam consisted of two houses-theLegislative Council and the LegislativeAssembly. In rest of the provinces therewas only one house called the LegislativeAssembly. The members of theLegislative Assembly were all elected,but a few of them were nominated bythe Governor to the upper house, theLegislative Council wherever it existed.It was empowered to frame laws on all

subjects included in the provincial list,question the Ministers concerning theiracts and could force them to resign bypassing a vote of no-confidence againstthem. In practice its rights, however,were limited by the rights of theGovernor to frame ordinances, to acton his own discretion and to act for thefulfillment of his special responsibilities.

Defects: The Act could not solve the problemsof India. It was full of many shortcomings, andonly major defects are being given here:

(1) All India federation as visualised in theAct never came into being because ofthe opposition from different parties ofIndia. The Simon Commission hadpromised 'Dominion Status' in 1929, butthe Act of 1935 did not confer it. TheAct provided separate representationnot only for the Muslims, but also forSikhs, the Europeans, Indian Christianand Anglo-Indians. It, thus, placedsevere obstructions in the way ofdeveloping national unity in thecountry. The hotch-potch ofauthoritarian and responsiblegovernment as envisaged by the Act of1935 fell far short of Indian nationalaspiration.

(2) The power of the Legislature andMinisters were limited by the powers ofthe Governor-General and theGovernors. In the provinces, though allaffairs were handed over to the IndianMinisters, yet they had no means toforce the Governor to act according totheir desires in case their view differedfrom that of the Governor. Thus, theprovincial autonomy was only in name.Infact, the Indians were not givenindependent powers even in a limitedfield.

(3) The Communal Electorate Systemexisted as before much against thewishes of the majority of the Indianpeople.

(4) The provision of the nomination of themembers as representatives of the states inboth the houses of the Central Legislatureby their respective rulers was mostundemocratic procedure and wascondemned by all political parties in India.


The formation of Indian Ministries proveduseful for experience of administration andworking of the parliamentary government. It alsomade them self confident about themselves andinspired them further to gain independence.Thus, the experiment of provincial autonomyunder the Act of 1935 definitely served someuseful purposes.

INDIAN INDEPENDENCE ACT, 1947

The beginning of Second World War broughtits doom. India was made a party to the War bythe Governor-General without consulting theIndian Ministers. The Congress Ministries,therefore, resigned in protest. In other provinces,the ministries mostly worked as the tool of theGovernment. Thus, within two years, theworking of the provincial autonomy virtuallycame to an end.

At the Bombay Session, the Indian NationalCongress decided to launch a mass struggle innon-violent line to free India from the Britishyoke. This movement came to be known as QuitIndia Movement. However, before the Congresscould actually launch the movement, theGovernment acted with great speed and arrestedmost of the leaders and declared Congress as anillegal body. This led to a spontaneous popularrevolt and there were numerous instances ofopen clashes between the people and the policeas well as army. The British adopted variousbrutal measures to suppress the revolt. Throughthis unprecedented repression the Britishsucceeded in keeping the nationalists undercontrol for the remaining period of the War.Meanwhile, efforts were made byC. Rajagopalachari and Lord Wavell to resolvethe constitutional tangle but without any success.

The British Government proposed severalplans in succession to find some solution ofIndian problem. Lord Wavell, the Governor-General proposed one scheme and anotherscheme was put up by the Cabinet Mission. Afterthat elections were held for an Indian ConstituentAssembly and an Interim Government wasformed in 1946. The Muslim League, however,refused to be party to it and took recourse to'Direct Action' in order to get fulfilled its demandfor Pakistan. It resulted in serious communal riotsin different parts of India. On February 20, 1947,Mr. Attlee, the Prime Minister, declared that theBritish would leave India by June, 1948 in every

case. Lord Mountbatten was sent to India asthe Governor-General who talked to all shadesof Indian public and then proposed his plansuggesting the partition of India. It was agreedby both the All India Congress and the MuslimLeague. On the basis of the Mountbatten Plan,the British Parliament passed the IndianIndependence Act, 1947 through which powerwould be transferred from the BritishGovernment to Indians.

Provisions: The details of the provisions ofthe Act of 1947 are as follows:

(1) Two dominions namely, India andPakistan would be established onAugust 15, 1947.

(2) It was left to the choice of these newlyindependent states that they would like tobe members of British Commonwealth ofNations or not.

(3) By the time, new Constituent Assemblieswere already founded in these states,they were empowered to frame lawsconcerning their respective states.

(4) The British Crown would appointseparate viceroys for each of them.However, both the states could opt tohave a single Viceroy.

(5) The British paramountcy over the nativestates would lapse and they would beallowed to join any of these newlyindependent states.

(6) The Government was to run on the basisof the Government of India Act, 1935till the framing of the new constitutions.But the Governor-General and theGovernors would act only as nominalheads. The Ministers would beresponsible to their respectivelegislatures.

(7) The offices of the Secretary of State forIndia and his advisors were abolished.The Commonwealth Secretary wasassigned the responsibility ofmaintaining relations with Pakistan andthe Indian Union.

(8) The title of 'Emperor of India' assumedby the British Kings, was abolished.

This marked the end of the British rule inIndia and the close of the constitutionaldevelopment under the British rule and Indiabecame independent

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