Constitutional History of India

The article is about the constitutional history of India containing the various charters and acts of the then government: British India.

Introduction – Constitutional History of India

The various acts, legislation, rules, and procedure in the country today are derived from various charters passed by the Britishers, who ruled India for around 300 years. Various charters were passed by them so as to govern the then British India properly and the various laws derive their source from them.

The first charter passed was passed by Queen Elizabeth I of England which allowed the London merchants to trade in the countries of East India. And after that various charters had been passed by the British government till the final charter of the Indian Independence Act, 1947. The history of our constitution is very rich and witnesses many acts and charters. The few important ones are described below:

Charter 1726

It is one of the main charters in constitutional history in India as it started the judicial administration of the country. The Charter established the Mayor’s court in the Presidencies of Madras, Bombay and Calcutta having jurisdiction only on civil matters including testamentary and probate of wills jurisdiction. It followed English law and it was due to this charter that English law was introduced in the country.

Corporations were established at Bombay and Calcutta like Madras which consisted of 1 Mayor and 9 Aldermen. The Mayor’s court had the power to appeal to the King-in-council.

Charter 1773

Due to several clashes between the Indian people and the Britishers, the British parliament passed Regulating act of 1773 to control and regulate the affairs in India. The main feature of this act is that it designated Governor of Bengal as Governor-General of Bengal and hence, Warren Hastings became the first governor-general of Bengal.

The executive council of the governor-general was established having four members. The charter also changed the voting qualifications and the time duration of the Board meeting in England. It raised the qualifications to vote from 500 pounds to 1000 pounds. It replaced the annual elections of Board members from 1 year to 4 years and that one-fourth of the members to be retired every year.

The regulation act also provided for the establishment of the Supreme Court of Calcutta in 1774. It had the power to try civil, criminal and admiralty cases and was a court of record. It was the first attempt to centralize the administrative machinery of India and to remove bribery and corruption done by the Britishers in India.

Charter Act of 1813

The charter act of 1813 renewed the charter issued to the British East India Company and extended their rule in India for another 20 years. The company’s monopoly in trade was ended except for the tea trade between India and China. It asserted the Crown’s power over British India.

The act promoted Christian missionaries into India and funds were allotted to promote education among the Indian masses. The act also gave more powers to the court in India over European subjects in India. It gave the financial grant to promote Indian literature and the promotion of science in India.

Charter Act of 1833

The Governor-General of Bengal was re-designated as the Governor-General of India by this Act. This made Lord William Bentinck the first Governor-General of India. Thus, the country’s administration was unified under one control. The Governors of Bombay and Madras lost their legislative powers. The Governor-General had legislative powers over entire British India.

The Governor-General in council had the authority to amend, repeal or alter any law pertaining to all people and places in British Indian territories whether British, foreign or Indian native. The civil and military affairs of the company were controlled by the Governor-General in council. The Governor-General’s council was to have four members. The fourth member had limited powers only.

The act mandated that any law made in India was to be put before the British Parliament and was to be called ‘Act’. As per the act, an Indian Law Commission was established. The first Law Commission had Lord Macaulay as its chairman. It sought to codify all Indian law. Governor-General’s government was called the Government of India and the council was called India Council. This was the first act that gave permission for Indians to have a share in the country’s administration. It stated that merit should be the basis of employment to government service and not birth, colour, religion or race.¹

Indian Council Act of 1861

This was the first act, which allowed Indian representation in the non-official councils. 3 Indians entered the Legislative Council. A legislative council was established for both the Centre and provinces. The three separate presidencies (Madras, Bombay and Bengal) were brought into a common system. The Act added to the Viceroy’s Executive Council a fifth member – a jurist.

Viceroy’s Executive Council was expanded by the addition of not less than six and not more than 12 additional members for the purposes of the legislation, who would be nominated by the Governor-General and would hold office for two years. Therefore, the total membership increased to 17. No less than half of these members were to be non-officials.

The legislative power was to be restored to the Council of Bombay and Madras. Canning had introduced the Portfolio system in 1859 that was divided into several branches, which were entrusted to different members of the Governor General’s council. It also envisages that the member in charge of his department could issue final orders with regard to matters which concerned his department.

Indian Council Act, 1892

The Indian Councils Act 1892 was an Act that authorized an increase in the size of the various legislative councils in then British India. Enacted due to the demand of the Indian National Congress to expand the legislative council, the number of non-official members was increased both in central and provincial legislative councils.

The non-official members of Indian Legislative councils were henceforth to be nominated by the Bengal chamber of commerce and the provincial legislative council. The act provided for additional members in the central as well as provincial legislative councils. It also relaxed restrictions imposed by the Indian Councils Act 1861, thus allowing the councils to discuss each year’s annual financial statement. They could also put questions within certain limits to the government on the matter of public interest after giving six days’ notice, but none of them was given the right to ask supplementary questions. Thus it prepared the base of Indian democracy.

The act also increased the number of non-officials in councils to between 10 and 16, but provincial representation was abolished. The law member was made a permanent member.

In 1892, the council consisted of 24 members, only five members were Indians.

The Indian Councils Act 1909 or Morley-Minto Reforms

The Indian Councils Act 1909 or Morley-Minto Reforms or Minto-Morley Reforms was passed by British Parliament in 1909 in an attempt to widen the scope of legislative councils, placate the demands of moderates in the Indian National Congress and increase the participation of Indians the governance. This act got royal assent on 25 May 1909. The Act amended the Indian Councils Act 1861 and the Indian Councils Act 1892:

• The legislative councils at the Centre and the provinces increased in size.
  • Central Legislative Council – from 16 to 60 members
  • Legislative Councils of Bengal, Madras, Bombay and United Provinces – 50 members each
  • Legislative Councils of Punjab, Burma and Assam – 30 members each
• The legislative councils at the centre and the provinces were to have four categories of members as follows:
  • Ex officio members: Governor-General and members of the executive council.
  • Nominated official members: Government officials who were nominated by the Governor-General.
  • Nominated non-official members: nominated by the Governor-General but were not government officials.
  • Elected members: elected by different categories of Indians.
• The elected members were elected indirectly. The local bodies elected an electoral college that would elect members of the provincial legislative councils. These members would, in turn, elect the members of the Central legislative council.
• The elected members were from the local bodies, the chambers of commerce, landlords, universities, traders’ communities and Muslims.
• In the provincial councils, non-official members were in a majority. However, since some of the non-official members were nominated, in total, a non-elected majority was there.
• Indians were given membership to the Imperial Legislative Council for the first time.
• It introduced separate electorates for the Muslims. Some constituencies were earmarked for Muslims and only Muslims could vote their representatives.

Government of India Act 1919

Government of India Act 1919 was passed by British Parliament to further expand the participation of Indians in the Government of India. Since the act embodied reforms as recommended by a report of Edwin Montagu {Secretary of State for India} and Lord Chelmsford {Viceroy and Governor General}, it is also called as Montague-Chelmsford Reforms or simply Mont-Ford Reforms. The salient features of the Act are:

1. This Act had a separate Preamble which declared that the Objective of the British Government is the gradual introduction of responsible Government in India.
2. Diarchy was introduced as Provincial Level. Diarchy means a dual set of governments one is accountable another is not accountable. The provincial subjects were divided into two groups: One was reserved and another was transferred. The reserved subjects were kept with the Governor and transferred subjects were kept with the Indian Ministers. This division of subjects was basically what they meant by introducing the Diarchy.
3. The Government of India Act of 1919, made a provision for the classification of the central and provincial subjects. The Act kept the Income Tax as a source of revenue to the Central Government. However, for Bengal and Bombay for which, to meet their objections, a provision to assign them 25% of the Income-tax was made.
4. No bill of the legislature could be deemed to have been passed unless assented to by the governor-general. The latter could, however, enact a Bill without the assent of the legislature.
5. This act also made a provision that a statutory commission would be set up at the end of 10 years after the act was passed which shall inquire into the working into the system of the government. The Simon commission of 1927 was an outcome of this provision.
6. The communal representation was extended and Sikhs, Europeans and Anglo Indians were included. The Franchise (Right of voting) was granted to the limited number of only those who paid a certain minimum “Tax” to the government.³

The Government of India Act, 1935

The Government of India Act, 1935 was passed by British Parliament in August 1935. With 321 sections and 10 schedules, this was the longest act passed by British Parliament so far and was later split into two parts viz. Government of India Act, 1935 and Government of Burma Act, 1935.

The Government of India Act, 1935 derived material from four key sources viz. Report of the Simon Commission, discussions at the Third Round Table Conference, the White Paper of 1933 and the reports of the Joint select committees. This act ended the system of dyarchy introduced by the Government of India Act, 1919 and provided for the establishment of a Federation of India to be made up of provinces of British India and some or all of the Princely states. However, the Federation never came into being as the required number of princely states did not join it.

It was the last constitution of British India which split Burma from it. It lasted until 1947 when British territory was split into Pakistan and India. Features:

• Abolition of provincial dyarchy and introduction of dyarchy at centre.
• Abolition of Indian Council and the introduction of an advisory body in its place.
• Provision for an All India Federation with British India territories and princely states.
• Elaborate safeguards and protective instruments for minorities.
• Supremacy of British Parliament.
• Separation of Burma from India.

Indian Independence Act 1947

The Indian Independence Act 1947 partitioned British India into the two new independent dominions of India and Pakistan. The Act received the royal assent on 18 July 1947, and Pakistan came into being on 14 August and India came into being on 15 August.

• Two new dominion states: Two new dominions were to emerge from the Indian Empire, Pakistan and India. The Dominion of India may be regarded as an expression of the desire for self-government of all people in India, and the Dominion of Pakistan as the expression of the demand for self-government by the Muslims.
• The boundaries of the new provinces were to be determined, whether before or after the appointed date, by the award of a boundary commission to be appointed by the Governor-General.
• Constitution for the New Dominions: until the time of framing of a new constitution, the new dominions and the provinces thereof were to be governed by the Government of India Act 1935.
• His Majesty’s Government lost all the responsibility to the new dominions
• The suzerainty of His Majesty’s Government over the Indian States lapsed.
• All the treaties or agreements with the Indian States and the tribal areas that were in force at the passing of the Act lapsed.
• The title of “Emperor of India” was dropped from the titles of the British Crown.
• The office of Secretary of State for India was abolished and the provisions of GOI Act 1935 relating to the appointments to the civil service or civil posts under the crown by the secretary of the state ceased to operate.

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1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination