Constitutional History-The Acts

prior to independence.

The Charter Acts

• English East India Company constituted

to promote trade with India was firmly

established its domination in India by 160

AD when the Mughals were at the height

of their power and glory. Within a

century the Mughal power became

degenerated and disintegrated.

• The Britishers took advantage of this

situation, tightened their grip over India

with a series of legislations starting with

the Regulation Act of 1773.

• Followed by the Pits India Act 1784, the

Act of 1786, -the Charter Act of 1793,

the Charter Act of 1813,- the Charter

Act of 1833 and the Charter Act of 1853

which passed by the British Parliament.

• The company had established in India

the three presidencies of Madras (now

Chennai), Bombay (now Mumbai), and

Calcutta (now Kolkata).

• As Mughal power declined, these

settlements became subject to increasing

harassment by local princes, and the

company began to protect itself by

intervening more and more in Indian

political affairs

• It had, moreover, a serious rival in the

French East India Company, which under

Joseph François Dupleix launched an

aggressive policy of expansion. The

victories (1751–60) of Robert Clive over

the French made the company dominant

in India, and by a treaty of 1765 it

assumed control of the administration of

Bengal. Revenues from Bengal were used

for trade and for personal enrichment -

• By the East India Act of 1784 the

government assumed more direct

responsibility for British activities in

India, setting up a board of control for

India.

• The company continued to control commercial policy and lesser administration, but the British government became increasingly the effective ruler of India.

• Parliamentary acts of 1813 and 1833 ended the company's trade monopoly. Finally, after the Indian Mutiny of 1857–58 the government assumed direct control, and the East India Company was dissolved.

• To check the exploitative practices of the

company and to gain a share of revenues,

the British government intervened and

passed the Regulating Act (1773), by

which a governor-general of Bengal was

given charge of all the company's

possessions in India. Warren Hastings,

the first governor-general, laid the

administrative foundations for subsequent

British consolidation.

SITUATION BEFORE THE

GOVERNMENT OF INDIA ACT, 1935

CAME INTO BEING

• After the First War of Independence the political control of India passed from the hands of the East India Company to the British Crown. From now on the British Parliament started making legislations directly for the administration of India.

• One of the more important legislations enacted by the British before now was the Indian Councils Act of 1861.

• The Indian Councils Act of 1869

extended the legislative powers of the

Governor- General- in- Council by

authorising it make laws for all native

Indian subjects of Her Majesty in any

part of the world .

• By the Government of India Act of

1870 power was provided to the

Governor- General to legislate in a

summary way for the less developed and

unimportant parts of the country.

• Followed by this, first War of Indian

Independence 1857, the British Parliament

adopted the Government of India Act 1858 by

which the British Government took over the

administration of India.

• As a continuation, the Indian Council Act of

1861 and Indian Council Act 1892 were passed

by the British Parliament for administrative

convenience.

• These and various other legislations were

enacted in this period.

• But these legislations were not adequate

to provide for the needs of the country.

Rather they contrived to keep power in

the hands of the British and fleece the

Indians.

• This led to a growing feeling of

discontent amongst the Indians which

was reflected in the opinions of the

Indian newspapers of the day.

• (Indian Council Act 1909 / Government of

India Act 1909)

• The British Parliament passed the Act of 1909

with much expectation to secure its influence

among the various Indian communities. Lord

Morley, the Secretary of State for India pointed

out that “The Act of 1909 opened a new

chapter in Indian Constitutional reforms”. The

Act of 1909 recommended for

• (i) The inclusion of an Indian members in the

Executive Council of the Governor General

MINTO MORLEY REFORMS

• (i) An enlarged Central legislative

Council

• (i) An enlarged Provincial Legislative

Council

• (iv) It also enlarged the scope of the

subjects to be debated in both Central

Legislative Council and Provincial

Legislative Council

• (v) Communal reservation both for the

Hindus and Muslims

• However, the British government brought

the Act with the intention of rallying to its

side the

Moderates and the Muslims.

• But quite contrary to the expectations, the

discontentment among the people reached

new height and the Government had

resorted to repressive measures.

MONTAGUE-CHELMSFORD

REFORMS (The Act of 1919)

• The Secretary of states for India, Lord

Montague visited India on November 1917 and

discussed his scheme of reforms, with the

Viceroy Lord Minto and Indian leaders. A

committee was constituted consisting of Sir

Wiliam Duke, Earl, B N Basu and Charles

Robert together with the Viceroy Lord

Montague.

• The Government of India Act of 1919

was the latest in a series of acts passed by

the British parliament to define the

structure of government and

administration in Great Britain's chief

colony, India.

• A total of sixteen other Government of

India Acts were passed by Parliament.

The chief purpose of the 1919 act was to

allow the people of India greater

participation in their own government.

• The committee prepared a draft which

was published in July 1918 and is known

as Montagu-Chelmsford Report. On the

basis of this report, the Government of

India Act 1919 was drafted.

The Government of India Act 1919

• The Act embodied the reforms

recommended in the report of the

Secretary of State for India, Edwin

Montagu, and the Viceroy, Lord

Chelmsford.

• The Act covered ten years, from 1919 to

1929.

• The Act of 1919, laid down in its

Preamble the principles on which the

reforms were to be progressively carried

out in India.

• An analysis of the Preamble brings out

hat

• (1) British India is to remain an integral

part of the British Empire.

• (2) Responsible government in British

India is the objective of the declared

policy of Parliament.

• (3) Responsible government is capable

of progressive realization only.

• (4) The increasing association of Indians in every branch of administration.

• (5) Gradual development of self governing institutions.

• (6) It provided independence to Provinces in Provincial maters.

• The Act provided a dual form of government (a "dyarchy") for provinces.

• The significance of the Preamble was that what was already declared by Montague was now given a definite legal shape.

Provisions

Changes in the Central Government

• (1) The number of Indians in the

Governor General’s Executive Council

was raised to 3 in a council of 8

• (2) The new scheme envisaged a division

of subjects into central list and provincial

list

• Matters of administration were first divided between the centre and the provinces and then the provincial subjects were further bifurcated into transferred and reserved subjects.

• The transferred subjects were to be administered by the governor with the help of ministers responsible to the legislative council composed mainly of elected members.

• (3) The Act provided a bicameral

legislature at the centre. The Council of

State (Upper House) Legislative

Assembly (Lower House)

• The Transferred subjects are:

(1) Education, (2) Libraries, (3)

Museums, (4) Local Self-Government,

(5) Medical Relief, (6) Public Health and

Sanitation, (7) Agriculture, (8)

Cooperative Societies, (9) Public Works,

(10) Veterinary, (11) Fisheries, (12)

Excise, (13) Industries, (14) Weights and

Measure, (15) Public Entertainment, (16)

Religion and Charitable Endowments,

etc.

• The reserved subjects were to remain

the responsibility of the governor

and his executive council which was

not responsible to the legislature.

Governor got the power to override

ministers and executive council.

• The Reserved Subjects are:

(1) Land Revenue, (2) Famine Relief, (3)

Justice, (4) Police, (5) Pensions, (6)

Criminal Tribes, (7) Printing Presses, (8)

Irrigation and Waterways, (9) Mines, (10)

Factories, (11) Electricity, (12) Labour

Welfare and Industrial Disputes, (13)

Motor Vehicles, (14) Minor Ports, etc.

Changes in the Provincial

Government

• (1) The Act introduced Dyarchy or dual

government in the Provinces.

• (2)It provided for a Provincial Legislature

called Provincial Legislative Council.

• (3) Strengths of the Provincial Legislative

Council is varied from state to state.

• (4) The scope of the functions enlarged.

• (5) Franchise was widened

• (6) Term of the Provincial Legislative

Council is 3 years but the Governor could

increase or reduce it

Criticism

(1) Though a step was taken toward increasing association of Indians by raising their strengths to three, in a council of eight, the departments assigned to them were comparatively unimportant.

There was also much confusion in the division of subjects.

• (2) The Act of 1919 introduced only a

responsive government, not a responsible

government at the Centre. No vote of

confidence of the Central legislatures

could turn out a member of the Executive

Council and the Governor General and as

such they were irresponsible.

• (3) The Act introduced Dyarchy in the

provinces and during its operation, it

proved to be failure, because the division

of subjects was irrational and illogical.

• Moreover, the position of the Ministers

were weak and they had to serve two

masters-the Governor and the Provincial

Legislative Council at the same time.

• The final crunch in the Provinces were

also put everything in the dock.

Appraisal

Unfortunately the Government of India

Act of 1919 was never given a co-

operative trial.

Right from the beginning, the Indian

National Congress condemned it as

disappointing and unsatisfactory and

launched non-violent, non-co-operation

movement in 1920 for the attainment of

Swaraj or Self Rule.

• However, the first election under Act of

1919 was held in 1920.

• Dyarchy functioned in al the provinces

uninterruptedly from 1921 to 1937 except

in Bengal and Central province when it

tried to be suspended during 1924-27 and

1924-26 respectively.

• World War I was important for India’s

nationalist movement. Indians of all

persuasions overwhelmingly supported

Great Britain and the Allied cause during

the war.

• Nearly 800,000 Indian soldiers plus

500,000 non combatants served in Europe

and the Middle East.

• Communal relations between Hindus and

Muslims took several turns between the

passage of the India Councils Act in 1909

and 1919.

• The reunion of Bengal in 1911 (which

cancelled its partition into two provinces)

pleased the Hindus but antagonized the

Muslims.

• The All-India Muslim League began to

attract younger and bolder leaders, most

notably a brilliant lawyer named

Mohammad Ali Jinnah (1876–1946).

• Similarly Mohandas K. Gandhi (1869–

1948) and Jawaharlal Nehru (1889–1967)

emerged as leaders of the Indian National

Congress.

• Many in India’s Muslim minority became

concerned with the ultimate fate of the

Muslim Ottoman Empire, which fought

in the opposing Central Powers camp.

World War I also aroused both the

congress and the league to demand

significant constitutional reforms from

Britain.

The Chauri Chaura incident.

• Chauri Chaura is a small village in the

Gorakhpur district of Uttar Pradesh. On

5 February 1922, the police stationed

there fired at a group of demonstrators.

• The demonstrators retaliated by

burning down the police station, which

caused the death of twenty-two

policemen.

• Gandhi had all through the movement

emphasized on peace and non-violence.

This incident, deeply hurt him and he

called off the movement. On 10 March

1922, he was arrested and sentenced to

six years imprisonment.

• The national movement during the years

1905-1922 in India turned into a popular

movement largely due to the efforts of

Gandhiji.

• In the following years, he was the person

who symbolized the attempts of the

Indians to secure freedom from British

rule.

• In 1916 they concluded a Congress-League Scheme of Reforms, known as the Lucknow Pact.

• It made wide-ranging demands for greater self-government, equality of Indians with other races throughout the British Empire and Commonwealth (in response to racial discrimination in South Africa and Canada), and greater opportunities for Indians in the armed forces of India.

• In response, the new secretary of state for

India, Edwin Montagu, officially

announced the British government’s

commitment to “the gradual development

of self-governing institutions with a view

to the progressive realization of

responsible government in India” in

August 1917.

• He then toured India, met with Indian

leaders, and together with Viceroy Lord

Chelmsford drafted a Report for Indian

Constitutional Reform in 1918, popularly

called the Montagu-Chelmsford Report.

A modified version of the report was

embodied in the Government of India

Act of 1919.

• The Government of India Act was a

significant advance in India’s freedom

movement. Others included a separate

Indian delegation to the Paris Peace

Conference in 1919, in the same manner

as the self governing dominions (Canada,

Australia, New Zealand, and South

Africa).

• India also became a member of the

League of Nations.

The significance and effect of

government of India Act 1919 –(1) To introduce the bicameral or two

chamber system in the Indian legislative council(2) To increase the size of the provincial legislative council , to increase number of the elected members in each(3) To substitute direct for indirect election(4) To enlarge the electorateThis act applied the principal of communal representation to Muslims, Sikhs, Anglo-Indians, and Indian Christians etc.

• Thus Hindus started to elect Hindus and

Muslims elected Muslims and also there

was communal representation.

• The act of 1919 did not introduce

federalism in India.

Governor General in council got the

power and authority to decide whether a

particular subject was central or

provincial subject

• After the genesis of Acts, Indian Round Table Conferences were held in 1930-1932.

• Through the three Round Table Conferences, British India and the Princely States could be integrated into the federated Dominion of India.

• However, Congress and the Muslims had different opinions on the structure of this federation. "This lack of agreement left the Conservative-dominated British government free to draft legislative proposals (the white paper) in line with its own views.

• After that, the British government let the Joint

Committee, of which the chair was Lord

Linlithgow, to formulate the new Act of India.

The Committee comprised of both members of

the House of Commons and House of Lords

and representatives from British India and the

princely states.

• The Committee came out with the draft Bill on

February 5, 1935 and the House of Commons

reviewed it.

• Finally, the Government of India Act 1935 was

proclaimed in July, 1935

“Government of India Act 1935”

• The “Government of India Act 1935” was

originally passed in August 1935 and is said to

have been the longest (British) Act of

Parliament ever enacted by that time. Because

of its length, the Act was retroactively split by

the Government of India (Reprinting) Act 1935

into two separate Acts:

• The Government of India Act 1935

• The Government of Burma Act 1935

The most significant aspects of the

Act were:

• The grant of a large measure of autonomy to the

provinces of British India (ending the system of

dyarchy introduced by the Government of India

Act 1919).

• Provision for the establishment of a “Federation

of India”, to be made up of both British India and

some or all of the “princely states”.

• The introduction of direct elections, thus

increasing the franchise from seven million to

thirty-five million people.

• A partial reorganization of the provinces:

–Sindh was separated from Bombay.

–Bihar and Orissa were split into

separate provinces of Bihar and Orissa.

–Burma was completely separated from

India.

–Aden was also detached from India,

and established as a separate colony.

–Membership of the provincial

assemblies was altered so as to include

more elected Indian representatives,

who were now able to form majorities

and be appointed to form governments.

–The establishment of a Federal Court.

• However, the degree of autonomy introduced at the provincial level was subject to important limitations:

• The Provincial Governors retained important reserve powers, and

• The British authorities also retained a right to suspend responsible government.

• The parts of the Act intended to establish the Federation of India never came into operation, due to opposition from rulers of the princely states.

• The remaining parts of the Act came into force in 1937, when the first elections under the Act were also held

Changes

• I. a) Changes in the Federation and

Government -First of all, the introduction of

federal principle was the most important and

influential feature of the Act.

• Indian Federation was a double process that

comprised previously subordinate provinces

where the autonomy was applied and the

separate princely states bound only by the

consultative Chamber of Princes and by direct

ties with the Crown.

• The next innovative feature was the

introduction of responsible governments in

provinces.

• A system of popular government replaced the

previous diarchy. Chief ministers or premiers

became the effective leaders of provincial

administration and the governors acted on their

advice unless they invaded their reserved

powers.

• The Governor-General also appointed

counsellors who had the similar role to the

members of governors' previous executive

councils.

• The administrative changes had great

influence on the Indian Federation. Several

regions underwent transformations.

• First, Sind was separated from Bombay and

became a separate province.

• A new province of Orissa was formed from the

Orissa division of the former province of Bihar

and Orissa and adjacent portions of the Madras

and Central Provinces.

• Burma was separated from India and enacted

a separate constitution.

I.b) Changes in Legislation

• The Government of India Act 1935 also had

features on its organization and structure of

legislation.

• First of all, It had no preamble, which was

included in the Government of India Act 1919.

• However, there was no need for a preamble in

the Act of 1935, as no new pronouncement of

policy or intentions was required. It meant that

there was no need to enshrine in an Act words

and phrases which would add nothing new to

the declaration of the preamble.

•

There was no Bill of Rights in the Government

of India Act 1935. Because the Federation

would include autocratic Princely States, no

meaningful Bill of Rights could be

formulated.

• Furthermore, the Government of India Act 1935 was the longest bill among the Acts which were passed by the British Parliament. Compared to the constitution of the USA, it had fewer than 8,000 words.

• "The reason for this length was Parliament¡¯s lack of trust of Indians and particularly Indian politicians." The Government of India Act 1935 was closely related to a Dominion Constitution.

• After a few amendments were added, the Government of India Act 1935 could function as the constitutions of both India and Pakistan.

I.c) Changes in other Aspects• The provincial assemblies changed to include

more elected Indian representatives, who in

turn could lead majorities and form

governments.

• But Governors tried to retain powers

concerning the summoning of legislatures,

assenting to bills and administering certain

regions.

• Women also received the franchise which had

the same terms as men.

• "At the Centre, the Governor-General" had the control of the reserved departments, the power of certifying legislation in the form of 'Governor-General's Acts', and the power to issue ordinances with the force of law for six months at a time."

• The safeguards were used to maintain the British government's interests and responsibilities.

• The Act focused on the power of Viceroy, the British colonial Governor-General of India, and governors who could administrate the safeguards.

• Moreover, the governors were discharged of their responsibilities such as the prevention of discrimination, protection of the interests of minorities, and continuance of the administration. Other safeguards carried out their work as preserving the rights of Indian services and their control by the Secretary of State.

The Indian Independence Act 1947

• The Indian Independence Act 1947 was

the legislation passed and enacted by the

British Parliament that officially declared

the Independence of India.

• The Parliament of the United Kingdom

passed the Act which partitioned British

India into two separate and independent

countries, India and Pakistan.

• The legislation of Indian Independence

Act was designed by the Prime Minister

Clement Attlee as Indian Political Parties

agreed on the transfer of power from the

British Government to the independent

Indian Government and the Partition of

India.

• This act received royal assent on 18th

July, 1947.The Agreement was made with

Lord Mountbatten, which was known as

the 3 June Plan or Mountbatten Plan.

The two newly formed countries of India

and Pakistan came into existence from

15th August, in the year 1947.

History of Indian Independence Act

1947•

On 3rd June 1947, a plan was announced that was proposed by the British government which included the following principles: * Principle of Partition of India was approved by the British Government * Successor governments would receive dominion status * Implicit right to secede from the British Commonwealth

• Clement Attlee, the Prime Minister of the United Kingdom, announced on 20th February, 1947 that the British Government would grant full self government to British India latest by June 1948.

• Moreover, the future of Princely States would be decided after the date of final transfer is decided and the Indian Independence Act 1947 was the implementation of June 3 Plan.

• Indian Independence Act was passed in June 1947, which specified the following:

• The British rule of India should be over on the midnight of August 15, 1947.

An independent dominion of India shall be created out of the United Provinces, Central Provinces, Bombay Presidency, Madras Presidency, the Carnatic, East Punjab, West Bengal, Assam and the Northeast Frontier Agency.

The territories of the Andaman and

Nicobar Islands and the Lakshadweep

Islands are also turned over to the Indian

Dominion.

An independent dominion of Pakistan

shall be created out of the provinces of

West Punjab, North West Frontier

Province, Sindh and East Bengal.

The all Princely states that were officially related to British Empire were made free from all the treaties and relationships and they could decide which dominion to join.

Lord Mountbatten thought that if the princely state remained independent within the dominion that may lead to chaos and thus made their accession a necessity of the Indian Independence Act.

Both the Indian and Pakistan Dominions

would be members of the British

Commonwealth and was allowed to leave

whenever they pleased.

Both Dominions of India and Pakistan

were completely self-governing in their

internal affairs, foreign affairs and

national security but the British monarch

will continue to be their head of state,

represented by the Governor-General of

India and a new Governor-General of

Pakistan.

Both Dominions shall convene their

Constituent Assemblies and write their

respective constitutions.

The British monarch shall be permitted

to remove the title of Emperor of India

from the Royal Style and Titles. King

George VI subsequently removed the title

by Order in council on June 22, 1948.

Effects of Indian Independence Act

• After the act was passed, some religion

based riots took place in the nation. The

situation was much violent. The Muslims

had to migrate from the `Would be India`

and Hindus had to migrate from the

`Would be Pakistan`. All of their

possessions and properties were left

behind.

The main provisions of the Indian

Independence Act of 1947 were as

follows:

• I. A. Partition of India:-On 15th August 1947, after the partition of India, two independent kingdoms, India and Pakistan would be established.

• B. Eastern Bengal, Western Punjab, Sindh and North-West Frontier Province would be included in Pakistan.

• C. It was not obligatory on the part of both the nations to accept the membership of the British Commonwealth of Nations. The choice was left to India and Pakistan.

• (II) The title Kaiser-i-Hind awarded to

the British Crown would be abolished

and the post of the Secretary of States for

India would come to an end.

• (III). Legislature Supremacy: Indian

independence act 1947 provides for

legislature supremacy of the two

dominions.

• (IV) Cessation of British Rules: It conceded the complete cessation of the British control over Indian affairs from August 1947.

• (V) Two constitutional assemblies:Indian independence act provide two constitutional assemblies for two dominions. All powers were to be vested in the constituent assembly of each dominion.

• (VI) Right to remain member of British common wealth: Under the Indian independence act the dominions were given full rights to decide whether to remain with the British commonwealth of nations or to come out of it. The native rulers were given the choice to join any State they liked.

• (VII) Interim constitution: Till the framing of the new constitution each of the dominions and all the provinces were to be governed in accordance with the government of India act 1935.

• (VIII) End of the title “Emperor of India”:

The title of "Emperor of India" was to be

dropped from the king of England.

• (IX) Option for Armed and civil servants:

All the civil and army servants were given full

option to join either of dominions. Those who

had joined the civil service before 15th August,

1947 would continue in that service after

independence. They would enjoy the same

privileges and rights relating the remuneration,

leave, pension etc.

• (X) Termination of the Suzerainty of the crown: It provides for termination of suzerainty of the crown over the Indian states. All treaties, agreements, exercisable by his majesty with regards to the states and their rulers were to be lapse from 15th August 1947.

(XI) End of the office of the secretary of states: The office of the secretary of the states for India was to be abolished and his work was to be taken over by the secretary of the state for common wealth affairs.

• (XII) Office of Governor general : It

was provided that for each of the new

dominions there shall be a Governor

General who shall be appointed by his

majesty and shall represent majesty for

the purpose of the Government of the

dominions.

(XIII) Right of dominion state: The

rulers of dominion states were given

option to join either of the dominion

keeping in view the majority of their

population.

• (XIV) Right to amend the Govt. of

India act of 1935: Under the

independence act each dominion was

authorized to amend the government of

India act 1935.

(XV) Agreement with the Tribes:

Agreement with the tribes of the north-

western frontier of India were to be

negotiated by successor dominion.

• Jawaharlal Nehru was appointed as the

first Indian Prime Minister and Sardar

Vallabhbhai Patel was became the Deputy

Prime Minister of India. Over 560

princely states, including Jammu and

Kashmir, were granted to India.