Indian Polity (M Laxmikanth)
Chapter 1 - Historical Background
• The Britishers came to India in the form of East India Company in 1608 under a charter granted by Queen Elizabeth I in 1600.
• In 1764, the company defeated, Mughal Emperor, Shah Alam in the Battle of Buxar and gets the 'Diwani' (i.e., rights over revenue and civil justice) of Bengal, Bihar and Orissa in 1765.
• After the Sepoy Mutiny (सिपाही विद्रोह) in 1858, the British crown assumed the direct responsibility for the Governance of India and it continue till Independence, 15 August, 1947.
• With independence in 1947, there's came a need for constitution, and a constituent assembly was formed for this purpose in 1946 and on January 26, 1950, the constitution of India came in force.
• Certain events in the British rule laid down the legal framework for the organisation and functioning of Government and administration in British India, they are explained in two major heads-
a) The Company Rule (1773-1858); and
b) The Crown Rule (1858-1947).
(A) The Company Rule (1773-1858):-
1. Regulating Act of 1773 :-
• This act was the first step taken by British government to control and regulate the affairs of East India company in India.
• It recognised for the first time the political and administrative function of the company in India.
• It laid down the foundation of Central administration in India.
• Designated Governor of Bengal as Governor General of Bengal and created an Executive Council of 4 members to assist him.
• Made the Governor of Bombay and Madras, subordinate to the Governor General of Bengal who tends to work independently of one another earlier.
• Supreme Court at Calcutta was established in 1774 comprising of one chief justice and three other judges.
• Prohibited the servants of the company from taking any bribes or presents and from engaging in private trade.
• This act tends to is strengthening control of British government over company by requiring the Court of Directors (governing body of the company) to report on revenue, civil and military affairs in India.
2. Amending Act of 1781:-
• Also known as the Act of Settlement and is basically passed by British government to rectify the defects of the Regulating Act of 1773.
• Exempted, the Governor General, The Council and The Servants from the jurisdiction of Supreme Court for their actions carried on by them in their official capacity.
• The revenue matters and matters arising in the collection of revenue were excluded from the jurisdiction of Supreme Court.
• The jurisdiction of Supreme Court is to apply on all the inhabitants of Calcutta and the court is to administer defendants as per their personal law i.e., Hindus were to be tried as per Hindu law and Muslims as per Mohammedan law.
• As per this act, appeals from the Provincial Court could be taken to Governor General in Council and not to the supreme court.
• This act empowers Governor General in Council to frame regulations for the Provincial Court and Council.
3. Pitt’s India Act of 1784 :-
• It distinguishes between commercial and political functioning of the company.
• Established a system of two government.
• Allowed the Court of Directors to manage commercial affairs and created a new body called Board of Control to manage the political affairs.
• Company’s territory in India called the British Possessions in India (for the first time)
• Empowered the Board of Control to supervise and direct all the operations of civil and military in India and also the revenue of the British possession in India.
• The British Government gets the supreme control over the company’s affairs and its administration in India.
4. Act of 1786 :-
• In 1786, Lord Cornwallis was appointed as t he Governor General of Bengal.
• This act was basically passed to make two provisions that were demanded by Lord Cornwallis to accept the post of Governor General of Bengal.
• They are –
a) He should be given power to override the decision of his council on some special cases; and
b) He would also be the Commander-in-Chief.
5. Charter Act of 1793 :-
• The power that is given to Lord Cornwallis has been extended to all the future Governor General and Governors of Presidencies
• Gave more power and control to Governor General over subordinate governments i.e., presidencies of Madras and Bombay
• Extended the trade Monopoly of the company in India for a period of another twenty years.
• As per the act, the Commander-in-Chief was not to be a member of the Governor General’s Council unless he was so appointed.
• The members of the Board of Control and its staff were to be paid out of the revenue generated by the company from India
6. Charter Act of 1813 :-
• It abolished trade monopoly of the company over Indian market and its now open to all the British merchants except monopoly of the country over trade in tea and trade with China.
• Asserted sovereignty of the British crown over the company’s territories in India.
• Christian missionaries were allowed to come to India for the enlightenment of the people.
• It spreaded the Western education system over the inhabitants of the British territories in India.
• Authorised the local government to impose taxes on persons and also to punish those who are not paying the taxes.
7. Charter Act of 1833 :-
• Made the Governor General of Bengal as the Governor General of India and he got all the Civil and Military powers.
• The Governor General of Bengal now has authority over the entire territorial area possessed by the British in India.
• Lord William Bentick was the first Governor General of India after conversion.
• The Governor of Bombay and Madras has been deprived of their legislative powers and all the exclusive legislative power is given to Governor General of India.
• Laws that were made in previous acts called regulations whereas law that were made under this act are called Acts.
• East India company ended its operation as a commercial body and become a purely administrative body.
• Company’s territory in India were held by it ‘in trust for his majesty, His heirs and Successors’.
• The act of 1833 introduced a system of open competition for the selection of civil servants and also and sures that Indian should not be debarred from holding any place, office and employment under the company. However, this particular provision has been neglected after the opposition of the Court of Directors.
8. Charter Act of 1853 :-
• It is the last Charter Act passed by the British Parliament and was a significant constitutional landmark.
• This act, for the first time, separated the legislative and executive functions of the Governor General’s Council.
• It added 6 new members to the Council called Legislative Councillors and hence, it formed as separate Governor General’s Legislative Council often known as Indian (Central) Legislative Council.
• The Legislative Council operates as a mini-parliament and proceeds the same way as British parliament. Thus, legislation for the first time treated as a special function of the Government.
• Introduced an open competition system for the selection and recruitment of the civil servants. The covenanted civil service is open for Indians also.
• The Macaulay Committee (the committee on Indian civil service) was appointed in 1854.
• The company’s rule was extended and it retains the Indian territory on trust for the British crown without specifying any particular period of such possession. It means that the company’s rule can be terminated at the time the parliament wants.
• Local representation in the Indian Legislative Council was introduced for the first time and out of 6 new members to be added in the legislative council, 4 members were to be appointed from the local (Provincial) government of Madras, Bombay, Bengal and Agra.
(B) The Crown Rule (1858-1947) :-
1. Government of India Act of 1858 :-
• This Act was enacted at the time of the revolt of 1857 which was also known as the first war of Independence or the Sepoy Mutiny.
• This act was also known as the Act for the Good Government of India as it abolished the East India company and transferred all the powers of government, territories and revenues to the British crown.
• As per this act, India, from now onwards, to be governed by and in the name, Her Majesty. The designation of Governor General of India has been changed to Viceroy of India and the Viceroy was the direct representative of the British crown in India. First such Viceroy was Lord Canning.
• It ended the system of double government by abolishing the Board of Control and Court of Directors.
• A new office was opened for the secretary of state of India, who has the complete authority and control over Indian Administration. The secretary of state was a member of British Parliament and was ultimately responsible to the British Parliament.
• A 15 members Council was established to assist the secretary of state for India, which actually works as an advisory body and the secretary of state was made the chairman of the Council.
• It made the secretary of state-in-Council a body corporate which can sue or being sued in India and in England.
2. Indian Councils Act of 1861 :-
• After the revolt of 1857, the British Crown felt the necessity of seeking cooperation of the Indians in the administration and in leu of this, for the policy of association, 3 acts were formed by the British Parliament in 1861, 1892 and 1909. This particular act is a landmark in the constitutional and political history of India.
• It made the beginning of associating Indians in the law-making process and provided that the viceroy should nominate some Indians as non-official members in the expanded Council. Lord Canning, the then Viceroy, nominated 3 individuals in the Legislative Council – The Raja of Banaras, The Maharaj of Patiala and Sir Dinker Rao.
• It restored the process of decentralization by giving legislative powers to the Bombay and Madras presidencies.
• It established new Legislative Council for Bengal in 1862, for North-Western provinces in 1886 and for Punjab in 1897, respectively.
• It gives more powers to the viceroy to make rules and orders for the smooth transaction of business in the Council.
• Give recognition to the portfolio system, introduced by Lord Canning in 1859. Under this, a member of viceroy’s council was made in-charge of one or more departments and was also authorised to issue final orders on behalf of the council on matter of his department(s).
• It also empowered the viceroy to issue ordinance without consulting the legislative council in case of emergency and the life of such ordinance was six months.
3. Indian Councils Act of 1892 :-
• It increased the number of additional (non-official) members in the central and provincial Legislative Council but maintains the official majority in them.
• It increased the functions of the legislative councils and gave the power of discussing the budget and addressing questions to the executives.
• The non-official members are being nominated by –
a) Viceroy for the central legislative councils on the Recommendation of the provincial legislative councils and the Bengal Chamber of Commerce.
b) Governors for the provincial legislative council on the Recommendation of the district boards, municipalities, universities, trade associations, zamindars and Chambers.
4. Indian Councils Act of 1909 :-
• This act was also known as Morley-Minto Reform because at that time, Lord Morley was the secretary of state for India and Lord Minto was the then viceroy of India.
• Increased the size of both Central and Provincial Legislative Council. The number of members in the central legislative council has been increased from 16 to 60 and on the other hand, the number of members in the provincial council was not uniform.
• The majority of official members were being retained in the central legislative council and a majority of non-official members were being retained in the provincial legislative council.
• It enlarged the legislative functions of both the Legislative Councils (Central and Provincial) by allowing members to ask supplementary questions, move resolutions on the budget and so on.
• Association of Indians, for the first time, was allowed in the executive council of viceroy and governors and Satyendra Prasad Sinha was the first Indian to join the Viceroy’s executive council, who was basically joined as a law member.
• A system of communal representation for Muslims were introduced through a concept of ‘separate electorate’. Under this, the representation of Muslim members were been elected by Muslim voters only and thus, the act legalised communalism and Lord Minto came to be known as the Father of Communal Electorate.
• As per the act, there should also be a separate representation of presidency corporations, chamber of commerce, universities and zamindars.
5. Government of India Act of 1919 :-
• On August 20, 1917, the British government declared that its objective is to introduce a responsible government in India and therefore it enacted the Government of India Act 1919, which came in force in 1921.
• This act was also known as Montago-Chelmsford Reforms because at that time Montago was secretary of states for India and Lord Chelmsford was the Viceroy of India.
• It classified all the subjects of administration into two categories –
a) Central Subjects; &
b) Provincial Subjects.
• This classification was done by the ‘devolution rule’ which was framed under this act.
• These rules facilitated delegation of authority from the centres to the provinces and now both the central and provincial legislature were allowed or authorised to make law on their respective list of subjects. However, the structure of government continued to be centralised and unitary.
• The Provincial subjects were further divided into two parts –
a) Transferred; and
b) Reserved.
• The transferred subjects includes - Public Health, Education, Local Self-Government, Agriculture, etc., and were administered by Governor with the aid of ministers responsible to the Legislative Council.
• The reserved subjects include – Police, Administration of Justice, Prisons, Land Revenue, Finance, etc., and were administered by Governor and his executive Council without being responsible to the Legislative Council.
• This dual system of government is known as ‘Dyarchy’, which was derived from a Greek word di-arche, which means double rule.
• However, this experiment of double rule was largely unsuccessful.
• Bicameral legislature introduced for the first time and direct elections were started to conduct in the country. The bicameral Legislature replaced the Indian legislature Council and this bicameral legislature consist of Upper house (Council of state) and Lower house (Legislative Assembly). A majority of members in both the houses were chosen by direct elections.
• It was required that the three out of 6 members of the viceroy’s executive council except the commander-in-chief, were to be Indian.
• It extended the principle of communal representation by providing separate electorates for Sikhs, Indian Christians, Anglo Indians and Europeans.
• It granted franchise to a limited number of people on the basis of property, tax or other qualifications.
• A new office of the high commissioner for India was opened in London and transferred some of the functions which were earlier performed by the secretary of state for India to him.
• In 1926, it provided for the establishment of Central Public Service Commission for recruiting civil servants and it was done on the recommendation of the Lee Commission on superior civil servants in India (1923-24).
• The Provincial Budget has been separated from the Central budget for the first time and also authorised the Provincial legislature to enact their own budgets.
• Appointment of statutory Commissioner, who is required to inquire into and report on its working after 10 years of coming into force.
• It provided for the establishment of Chamber of princes also known as Narendra Mandal which was inaugurated in 1921. It consists of 120 members which includes, Princes of 108 States and 12 representatives of the other states. This Chamber of princes was headed by the viceroy (governor general) and was basically formed to have a discussion on the matters of common interest.
Simon Commission
• In November 1927, the British government announced a 7 member statutory Commission under the chairmanship of Sir John Simon to report on the conditions of India under the new constitution.
• But all the members in the commission were British and therefore, all the other parties boycotted the commission.
• In 1930, the commission submitted the report and recommended –
a) abolition of dyarchy
b) Extension of responsible government in the provinces
c) Establishment of a federation of British India
d) Continuation of communal electorate and so on.
• To consider the Recommendation of the commission, the British government convened three round table conferences that will include the representatives of the British government, British India and British princely states.
• On the basis of the three Round table conference or discussions ‘a white paper on constitutional reforms’ was prepared and submitted to the joint select committee of the British Parliament.
• The Recommendation of this committee were incorporated with certain changes in the next Government of India Act 1935.
Communal Award
• In August, 1932, the British Prime Minister, Ramsay MacDonald, announced a scheme of representation of the minorities known as a communal award, that will not only include separate electorate for the Muslims, Sikhs, Indian Christians, Anglo Indians and Europeans but also for the depressed classes like schedule cast.
• Gandhiji was very much uneasy over the extension of representation of the depressed classes and therefore undertook a fast unto death in Yerawada jail in Poona to the scheme modified.
• Finally, there was an agreement between the Congress and Dr B.R. Ambedkar, the leader of the depressed classes, this agreement later on known as Poona Pact, retaining the Hindu joint electorate and gave reserve seats to the depressed classes.
• The British government accepted the Poona Pact and modified the Poona Pact with respect to depressed classes. This means that the provisions of the separate electorates for the depressed classes has been dropped that were contained in the communal award.
• The provisions of the Poona Act has been incorporated in the next Government of India Act 1935 in the composition of Central and Provincial legislature.
6. Government of India Act of 1935 :-
• This act is marked as a second milestone towards the complete responsible government in India having 321 sections and 10 schedules.
• It provided for the establishment of an All India Federation consisting of provinces and princely states as units.
• It divided the power in term of three list - Federal list (for Centre, with 59 items), Provincial list (for provinces, with 54 items) and the Concurrent list (for both, with 36 items). The residuary power were given to the viceroy.
• However, the Federation never came into being because the princely states did not join it.
• It abolished Dyarchy in the provinces and introduced provincial autonomy. The provinces were now allowed to act as an autonomous units under a defined spheres.
• The act also allowed a responsible government in the provinces and now the Governor is required to act as per the advice of ministers responsible to the provincial legislature.
• The whole thing was come in force in 1937 and the same was discontinued in 1939.
• It adopted Dyarchy at the centre and the federal subjects were divided into reserved subjects and transferred subjects. However, this particular provision did not come into operation at all.
• Introduced bicameralism in 6 out of 11 provinces. Thus, the legislature of Bengal, Bombay, Madras, Bihar, Assam and United provinces were made bicameral consisting of Legislative Council (Upper house) and Legislative Assembly (Lower house). However, many restrictions were placed on them.
• Reserved a certain number of general seats for depressed classes (schedule castes) and also given special representation to women and labours (workers).
• Abolished the Council of India, established by the government of India Act, 1858 and the secretary of states for India was provided with a team of advisors.
• It extended the voting rights (franchise) and about 14% of the total population got the power to vote.
• It provided for the establishment of a Reserve Bank of India to control the credit and currency of the country.
• It established not only Federal Public Service Commission but also a Provincial Public Service Commission and a Joint Public Service Commission for two or more provinces.
• It provided for the establishment of a federal court which was set up in 1937.
• It separated Burma (now Myanmar) from India and it also created two new provinces of Orissa and Sind.
• It provided for the protection of interest of minorities.
• It established a Federal Railway authority to look after the administration of railways.
• It provided for the appointment of an Auditor-General of India to audit the accounts of the Federation and the Provinces.
7. Indian Independence Act of 1947 :-
• On February 20, 1947, the British PM Clement Atlee declared that the British rule in India would end by June 30, 1948, after which the power would be given to responsible Indian hands.
• After the announcement, the Muslim League started demanding partition of the country and again the British government on June 3, 1947, made it clear that the constitution formed by Constituent Assembly of India (formed in 1946) will not apply to those parts of the country who are not willing to accept it.
• Again, on the same day i.e., June 3, 1947, Lord Mountbatten, the viceroy of India, put forth the partition plan, known as the Mountbatten Plan.
• The Mountbatten plan was accepted by the Congress and the Muslim League which came in force with immediate effect by enacting the Indian Independence Act, 1947.
Note:- The Indian Independence Bill was introduced in the British Parliament on July 4, 1947 and received the royal assent on July 18, 1947. The act came into force on August 15, 1947.
• The act ended the British rule and declared India as an independent and Sovereign state from August 15, 1947.
• It provided for the partition of India and creation of two independent countries (Dominions), India and Pakistan with the right to secede from the British Commonwealth.
• The office of the viceroy has been abolished and provided, for each Dominion, a Governor General, who was to be appointed by the British king on the advice of dominion cabinet and also provided that the British King’s government has no responsibility with respect to the Government of India and Pakistan.
• It empowered the constituent assemblies of two dominions to frame and adopt any constitution for their respective nations and also to repeal any act of the British Parliament including the independence act itself.
• It empowered both the dominions to legislate for their respective territories till the new constitution were drafted and enforced.
• No act of British Parliament was passed after August 15, 1947 unless it was extended thereto by a law of the Legislature of the Dominion.
• It abolished the office of the secretary of States for India and transferred his power to the secretary of states for Commonwealth affairs.
• Proclaimed the lapse of British paramountcy over the Indian princely states and treaty relations with tribal areas from August 15, 1947.
• It granted freedom to the Indian princely states either to join Indian Dominion or Pakistan Dominion or to remain independent.
• It provided that the Governance of the two Dominions and the provinces is to be done by the government of India Act 1935, till the new constitution were framed, However, the Dominions were allowed or authorised to make modifications in the act.
• The British Monarch has been deprived from his right to veto bill or ask for reservation of certain bills for his approval but this right is transferred or reserved for the Governor General. The Governor General have the full power to assent to any bill in the name of his majesty.
• It designated the Governor General of India and the provincial governors as the constitutional (Nominal) heads of the states and were made to act on the advice of the respective Council of Ministers in all matters.
• It dropped the title of Emperor of India from the Royal titles of the king of England.
• It discontinued the appointment of civil servants and reservations of posts by the secretary of states for India but the member of civil servants who were appointed before 15 August, 1947, would continue to enjoy the benefit that were entitled to them till that time.
• After the Independence, when British rule comes to an end in 1947, the power is transferred to the new independent dominion of India and Lord Mountbatten become the first Governor General of new dominion of India.
• Lord Mountbatten swore in Jawaharlal Nehru as the first Prime Minister of independent India and the constituent assembly which was formed in 1946 became the Parliament of the Indian Dominion.
Note :- The boundaries between the two Dominion (i.e., India and Pakistan) was determined by the boundary Commission headed by Sir Cyril Radcliffe. Pakistan included the provinces of West Punjab, Sind, Baluchistan, East Bengal, North-Western Frontier provinces and the district of Sylhet in Assam. The referendum in the North-Western Frontier provinces and Sylhet was in favour of Pakistan.
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