The history of Constitutional development in India.
THE CONSTITUTION OF INDIA is the supreme law of the land.
Constitution of India is invaluable to students of Political Science in that it is amongst the latest of federal constitutions and embodies features suitable for the working of federal governments under modern conditions.
Constitution of India has drawn largely from federal constitutions in foreign countries, but at the same time, it is not an artificial patchwork of heterogeneous bits scissored from different sources, and pieced together. There was in force, previously to the Constitution, a federal form of Government established by the Government of India Act, 1935, which, in turn, was evolved from a system of Government which was unitary in character. To understand aright the true scope of the provisions of the Constitution, therefore, it is necessary to have knowledge of the working of the Government of India prior thereto. By the expression Government of India is meant Government of British India, that is, of India excluding the territories ruled by Indian rulers and by other European powers such as France and Portugal.
1600 AD: East India Company.
2. On 31st December 1600, the East India Company obtained a Charter from Queen Elizabeth granting it a monopoly of trade in the East and pursuant thereto, it established factories at Fort William, Bombay and Madras. In the beginning, its activities were purely commercial but in the unsettled conditions that prevailed on the break-up of the Mogul Empire on the death of Aurangazeb in 1707, the Company drifted into the sea of politics and after the battle of Plassey in 1757, it assumed the role of a ruling power in this country. The acquisition of political power by a trading corporation led to abuse and corruption on the part of its officials on an unprecedented scale and evoked widespread criticism in England. When the Company which was in financial difficulties at this time applied for a loan to the British Government, the latter seized the opportunity to intervene and acting on the doctrine that acquisition of sovereignty by a subject could only be on behalf of the sovereign, brought the administration of the territories acquired by the Company under the authority and control of the British Parliament. With this object, Parliament enacted first the Regulating Act of 1773, and then again Pitt’s Act in 1784. Three Presidencies were constituted with Fort William, Bombay and Madras as their capitals. The administration of the Presidency of Bengal was entrusted to a Governor-General assisted by a Council which had authority to enact laws. Likewise, the Presidencies of Bombay and Madras were to be administered each by a Governor assisted by a Council which had independent power of legislation but the Governors were to some extent subordinate to the Governor-General. The Charter Act of 1813 took away the monopoly rights of the Company to trade in India and the Act of 1833 stripped it of all its commercial activities in India, leaving to it only its political vestments. One notable feature of this Act was that it divested the Governors of Bombay and Madras of the power to enact laws which had been granted to them by the Acts of 1773 and 1784. Thus, the Governor-General stood as the sole legislative authority for India.
1857 AD: Great Indian Mutiny.
In 1857, when the memorable events hitherto called the Great Indian Mutiny and now known as Freedom Movement shook the rule of the Company in India to its foundations. As a result of this, the British Government took over the Government of the territories and put an end to the century-old administration by the Company. In 1861, Parliament enacted a law abolishing the Board of Directors of the Company and vesting the administration in a Secretary of State who was a member of the Cabinet. Thus, Parliament assumed, in the exercise of its sovereign powers, full responsibility for the administration of the Indian territories.
The Government of India as constituted under this Act was wholly Unitarian in character. At the head of the State was the Governor—General who in addition came to be designated as Viceroy and he was assisted in the administration of the territories by an Executive Council. The number of members of the Council was increased from time to time to cope with the increasing governmental business and the practice was developed of distributing “ portfolios ” among them. The Council also functioned as a legislative body and for this purpose additional members were nominated, some of them officials and others non-officials. The function of the Council was purely consultative.
Similarly, the administration of the Provinces of Bombay and Madras was placed under the charge of a Governor assisted by a Council whose function was purely executive. The Act of 1833 had, it has been stated above,‘ deprived the Governors of all legislative power. The Act of 1861 reversed this policy and invested the Governor-in-Council with power to legislate. While the Governor-General in Council could legislate for the whole of India, the Governor in Council could legislate only for his Province. Moreover, the consent of the Governor-General had to be obtained before a Bill could be introduced in the legislature and after it was passed, it had again to receive his assent before it could become law. In matters of administration also; the Governors were to act generally under the directions of the Governor-General.
The Government thus constituted under the Act of 1861 remained practically unchanged till 1919. Parliament enacted laws in 1892 and 1909 introducing certain changes with the object of giving a voice to the Indian subjects in the government of the country. The strength of the Council was increased both at the Centre and in the Provinces and the rules provided for a certain number of them being elected by certain bodies. On the whole, the changes introduced by these Acts left the form of Government established by the Act of 1861 unaltered in substance.
1917: First World War.
Then came the first World War and the declaration of the 20th August 1917 by the Secretary of State Mr. Montague that the policy of the British Government was “ the gradual development of self-government institutions with a view to the progressive realisation of responsible Government in India, as an integral part of the British Empire.” In the implementation of this declaration, Parliament enacted the Government of India Act, 1919. The changes introduced by this Act at the Centre are not of much consequence. The Legislature was to be bi-cameral and was to consist of a Council of State and a Legislative Assembly. Their members were partly elected and partly nominated. The powers of the Legislature were enlarged but the Governor-General could override their decisions. Substantial changes were introduced in the Provincial administration. The strength of the Legislative Assembly was increased and the majority of its members were elected. The Government had the power to nominate some members but they formed a minority. The franchise was widened and provision was made for the representation of special interests such as University, Landholders, Planters and the like. Thus, a beginning was made in responsible democratic Government.
Another notable feature of the legislation was the enumeration of the topics on which the Centre and the Provinces could respectively legislate. These were specified in what were called Devolution Rules. This does not however mean any division of the power of legislation between the Centre and the Province, each being supreme in its own domain, as in a federal constitution. The exercise of the power under these Rules by the Provinces was subject to the supremacy of the Central Legislature and the division was merely a matter of administrative convenience. As under the Act of 1861, a bill could be introduced in the Provincial Legislature only with the consent of the Governor-General and after it was passed, it could become law only when he assented to it.
The most important change made by the Act of 1919 was the introduction of what was known as Dyarchy in the provinces. The subjects which were assigned to the Provincial Government were divided into two categories “ reserved ” and “transferred”. The “reserved ” subjects were under the exclusive charge of the members of the Executive Council, who were responsible for their administration, not to the Legislature in which they were ex-officio members, but to the British Government. The “ transferred ” subjects were under the exclusive charge of Ministers chosen from the elected members and they were responsible to the Legislature. This novel feature of divided responsibility was called “ Dyarchy ”. The principle on which the subjects were classified as “ reserved ” and “ transferred ” was thus stated in the Montague-Chelmsford Report (See pp. 154): “Their guiding principle should be to include in the transferred list those departments which afford most opportunities for local knowledge and social service, those in which Indians have shown themselves to be keenly interested, those in which mistakes which may occur though serious would not be irremediable and those which stand most in need of development. In pursuance of this principle we should not expect to find that departments primarily concerned with the maintenance of law and order were transferred. Nor should we expect the transfer of matters which vitally affect the well-being of the masses who may not be adequately represented in the new Councils, such for example, as the question of land-revenue or tenant rights!”
Summing up Government of India Act of 1919:
To sum up, the Act of 1919 continued the unitary form of Government which had been previously established. It introduced two notable changes. firstly, Ministers, chosen from the elected representatives of the people and responsible to them, were entrusted with responsibility for Government, though it was limited to “ transferred ” subjects in the Provincial Legislature. Secondly, it enumerated the topics on which the Provincial Legislature could legislate and though this was only a step in the direction of decentralization in a unitary build-up, it prepared the ground for distribution of legislative powers on a federal basis.
The system of Dyarchy introduced by the Act of 1919 broke down in several Provinces because the co-operation of the elected majority was a sine qua non for its successful working and the Congress which had obtained majority of seats in the Legislature refused to form Governments as it was of the opinion that the reforms were inadequate and unsatisfactory. The matter was again taken up by the British Government. A Statutory Commission under the Chairmanship of Sir John Simon visited India in 1928 and submitted its Report and this was followed by Round Table Conferences in London and eventually, a new Statute, the Government of India Act, 1935, was passed. It was this Act that was in operation when the Constitution of India came into force and as will presently be shown, it is on this Act that it is substantially based.
The salient features of the Government of India Act, 1935:
Salient features of the Government of India Act, 1935 can be summed up as under—
- the establishment of a Federation;
- Provincial Autonomy and Dyarchy at the Centre ; and
- the Constitution of a Federal Court. 1.13.
(A) The establishment of a Federation.
The Government of India was unitarian in character. The Provinces were under the control, both legislative and administrative, of the Governor-General, who functioned as the Agent of the British Government in India. The division of topics for legislation between the Centre and the Provinces under the Devolution Rules of 1919, was, as already stated, a mere matter of administrative convenience. A substantial change was introduced in this respect by the Act of 1935. The Statutory Commission recommended division of the legislative power between the Centre and the Provinces, each to be supreme in its domain. To achieve this, the powers granted by the British Government under the previous Statutes had to be resumed and re-granted in part to the Centre and in part to the Provinces. The process to be adopted was thus stated in the Report of the Commission :
“It is clear that, in any new Constitution in which autonomous Provinces are to be federally united under the Crown, not only can the Provinces no longer derive their powers and authority by devolution from the Central Government but the Central Government cannot continue to be an agent of the Secretary of State. Both must derive their powers and authority from a direct grant from the Crown. The legal basis of a reconstituted Government of India must be, first, the resumption into the hands of the Crown, of all rights, authority and jurisdiction in and over the territories of British India, whether they are at present vested in the Secretary of State, the Governor-General in Council or the Provincial Governments and Administrations; and second, their redistribution in such manner as the Act may prescribe between the Central Government on the one hand and the Provinces on the other. A federation of which the British Indian Provinces are the constituent units will thereby be brought into existence.”[ Joint Parliamentary Committee Report. Vol. I, Part 1, Para. 153. That was the procedure adopted in Canada when the British North American Act was passed in 1867—vide Clokel, Canadian Government and Politics, 1944, p.206.]
This extract clearly shows that the Statutory Commission expressly adopted the true principles of federation in framing the new Constitution and that further Parliamentary legislation was required to effect a change-over from unitarianism to federalism. This factor will have to be borne in mind when the question is considered whether the Constitution is federal, because it is, in this respect, based on the Government of India Act, 1935. 1.15. Agreeably to the Report of the Commission, Parliament resumed all the powers given to the Government of India by previous statutes and vested them in the Crown (Sec. 2). It then re-granted to the Centre exclusive power to legislate on topics entered in List I of the 7th Schedule and to the Provinces exclusive power to legislate on the topics enumerated in List II of the said Schedule. There was a field in which both of them could legislate and that comprised the topics in List III of the said Schedule. It was provided in Section 107 that in case of conflict between a Federal Law and Provincial Law, the former should prevail.
The provision of Concurrent List was a novel feature.
There is nothing like it in the Canadian Constitution which was the model in the framing of the Lists and none such in any other federal Constitution. There is history behind the framing of the Concurrent List. When the question of inserting an entry on residual power came before the Constitution makers, there was disagreement between the Muslim League and. others as to where it should be done. The latter wanted that it should be allotted to the Centre while the former demanded that it should be with the Provinces. The Committee decided that the only solution to the conflict was not to include it in either List I or List II but to make the Lists so exhaustive that there should be little left for residue. As the Joint Parliamentary Committee put it, the residue must be so “ negligible that the apprehensions which have been felt -on one side or other are without foundation.” (Joint Parliamentary Committee Report, Para. 49.)
It was in these circumstances that the Concurrent List came to be framed.
Constitution of India: Unitarian or Federal.
A special provision was also inserted that the Governor-General may, by notification, empower either the Federal Legislature or the Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists of the 7th Schedule of the Act (Sec. 104). 1.18. Section 103 provided that if two or more Provincial Legislatures passed a resolution that a law may be enacted by the Federal Legislature on a topic in the Provincial List, the Federal Legislature could enact a law on that subject for those Provinces. This section cannot be said to offend any principle of federalism. Section 102 of the Act provided that the Federal Legislature could enact laws on topics mentioned in List II when the Governor-General issued a Proclamation of Emergency owing to war or internal disturbances. This certainly has a unitarian ring.
Apart from this, the legislative power was subjected both at the Centre and in the Provinces to severe restrictions and limitations. Thus certain bills could not be introduced in the Central Legislature without the previous sanction of the Governor-General (Sec. 108). Bills passed by the legislature could be vetoed by the Governor-General and by the Crown (Sec. 32). In addition to the power to promulgate Ordinances which the Governor-General possessed under Section 42 he had the power to enact laws independently of the legislature and these were termed Governor-General’s Acts (Sec. 44). 1.20. The Provincial Legislature was also subjected to similar restrictions. Certain Bills could not be introduced without the previous sanction of the Governor-General (Sec. 108 (2) Bills relating to certain matters could be introduced or moved only on the recommendation of the Governor (Sec. 82). Discussion with respect to certain matters was prohibited in the Provincial Legislature (Sec. 86). A Bill passed by the Legislature could become law only when it was assented to by the Governor and he could withhold his assent or reserve the Bill for the consideration of the Governor-General (Sec. 75). The Governor had also power to enact in his own discretion, laws called Governor’s Acts. (Sec. 90).
(B) Provincial Autonomy and Dyarchy at the Centre.
The administration of the Provinces was entrusted to a Governor. The Provincial Legislature may be bi-cameral or consist of one House. The members were to be mostly elected, and the Ministers were selected from them and they were responsible to the Legislature. The Governor was to act on their advice. Thus complete Provincial Autonomy was established and consistently with the federal set-up of the Government, the Governor in Council was responsible, not to the Governor-General but to the Crown. At the Centre, however, the position was different. The Federal Legislature was bi-cameral and consisted of a Council of State and a Federal Assembly which were to be filled by election, direct and indirect, respectively. Under (Sec. II) of the Act, Defence, Ecclesiastical Affairs, External Affairs and Tribal Areas were subjects entrusted to administration by the Governor-General in his discretion. He was to be assisted by Counsellors who were not responsible to the Legislature. The administration of other topics was entrusted to the Governor-General assisted by a Council of Ministers chosen from the Legislature, to which they were responsible. Thus, a dyarchy, with divided responsibility, was established at the Centre.
This Act also provided that certain matters were to be the special responsibilities of the Governor-General and that he was to act in his own discretion. “The Ministers had no voice in those matters (Sec. 12). Likewise, certain matters were declared to be special responsibilities of the Governor and with reference to them, he could act, in his own discretion, independently of the Ministers (Sec. 52).
(C) Establishment of a Federal Court.
A notable feature of the Government of India Act, 1935, was the establishment in India for the first time of a Central Court having jurisdiction over entire British India. It was called the Federal Court. Appeals to it lay from the decisions of all the superior Courts in India when a question of law arose as to the interpretation of any provision of the Act. The Court was also invested with original jurisdiction where there was a dispute between the Federal Government and the Provinces or between the Provinces on a question of interpretation of the Constitution or of federal laws or as to a right or obligation arising there under. The Governor-General could also refer to the Federal Court any question of Law for its opinion. It is this institution that developed into the Supreme Court under the present Constitution.
It should be mentioned that the Act contemplated a federation made up of not only the Provinces and Chief Commissionerships of British India but also of the Indian States. While the rulers of Indian States could elect to join the federation or not, the units of British India had no such option. But a federation was to come into existence only when the majority of the Indian rulers gave their consent to it and a Proclamation was issued pursuant thereto by the Crown. But as the Rulers did not consent to the federation, no Proclamation was issued and the federation contemplated by the Act did not materialize. But this did not affect the relationship between the Centre and the Provinces which was cast in a federal mould.
1942-1947: Second World War to Independence.
The Government of India Act failed to satisfy the Indian leaders. Pandit Jawaharlal Nehru characterized it as a “A new Chapter of bondage ”. Shortly after the coming into force of the Act, the Second World War broke out. The Congress declined to be drawn into the war “which was conducted on Imperialistic lines and which was meant to consolidate Imperialism in India and elsewhere”, and declared that “the issue of war and peace for India must be decided by the Indian people”. The position became further complicated by the entry of Japan into the war in November I 941. In this situation, the British Government felt that a speedy settlement of the Indian question was essential and imperative and made several attempts to work out a satisfactory solution. In 1942 Sir Stafford Cripps, and again in 1945-46 the Cabinet Mission came over to India and made various proposals. But owing to the opposition of the Muslim League which had by its resolution passed on 23rd March 1940 in the Lahore session, made a demand for a separate State of Pakistan, no agreement was possible and the proposals did not fructify. Eventually in June 1947, Lord Mountbatten made certain proposals which were accepted by all parties and in accordance therewith, the British Parliament enacted the Indian Independence Act which became law on 18th July 1947.
Indian Independence Act, 1947:
This Act provided for the constitution of two Dominions, India and Pakistan, which were to be independent from the 15th of August 1947. On that date, the responsibilities of the British Government for the administration of the Dominions was to cease and thereafter the Acts of the British Parliament would not extend to the Dominions. The treaties and other obligations between the British Government and the Rulers of Indian States were also to lapse on that date. The Constituent Assembly which had been summoned on 9th December 1946 was to function thereafter, both as a Constituent Assembly and as the Legislature of the Dominion. As Constituent Assembly, it was to frame a Constitution for the Government of the country and as Legislature to enact laws. The Government of India Act, 1935 was to continue to be in force but it could be adapted by the Constituent Assembly.
Pursuant to this provision, an Order, India (Provisional Constitution) Order, 1947, was passed effecting several changes in the Act of 1935. The Governor-General and the Governor were thereafter to be the constitutional heads of the Dominion Government at the Centre and in the Provinces. They could no longer act in their own “discretion” or “individual judgment”. Their power to enact laws independently of the Legislature and called Governor-General’s Acts and Governor’s Acts in the Act of 1935 ceased. There was to be no Executive Council or Counsellers. The Governor-General and the Governor were to act on the advice of the Ministers representing the Legislature and responsible to it.
The Constituent Assembly of the Dominion of India duly entered on the work of drawing up of a Constitution for it. A notable achievement for which the credit must largely go to Sardar Patel and Shri V. P. Menon was the integration of the States within India. The Rulers of the States magnanimously surrendered their sovereignty and acceded to India, an event which was described by Sardar Patel as a bloodless revolution. Before the Indian Independence Act came into force, the rulers of all the States except Jammu and Kashmir and Hyderabad had acceded to India and nominated their representatives to the Constituent Assembly. In October 1947 the State of Jammu and Kashmir and in November 1948 the State of Hyderabad also acceded to India and their representatives took their place in the Constituent Assembly, which thus became truly representative of the whole of India. 1.29.1. On 22nd January 1947, The Constituent Assembly (of interim Parliament) adopted a resolution called charter of freedom along with an annexure containing 24 sections. The preamble of charter adopted inter alia following objectives:
“…WHEREIN shall be guaranteed and secured to all the people of India, justice, social, economic and political : equality of status, of opportunity, and before the law : freedom of thought expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes and”…” 29.1.2. The above charter outlines the scope of the freedoms guaranteed to the people of India under the Constitution of India. Accordingly on 29th August 1947, a Drafting Committee consisting of eminent jurists and politicians and presided over by Dr. Ambedkar was appointed to draft the Constitution. The Committee took the Government of India Act, 1935 as its basis and introduced additions and modification which were necessitated by the Political changes which were of a far reaching character. The Committee had also before it the Constitutions of America, Canada, Australia, Switzerland, Eire and other countries and drew from them whatever was suitable to Indian conditions. The result was a Constitution which is elaborate and comprehensive and enshrines the accumulated wisdom of ages in the working of federal governments. The draft of the Committee was discussed by the Constituent Assembly and passed on 26th November 1949. It came into force on 26th January 1950. On that date, India which was a Dominion under the Indian Independence Act became a Republic.
Mystery of Law and Justice 