HISTORICAL BACKGROUND

The Constitution is the source of all powers of Executive, Legislature and Judiciary. Constitution
is considered the supreme law of the country. All institutions functions under the control of the
Constitution. Constitution of any country is an outcome of historical development. It cannot be
created in a day. To understand the modern developed form of Indian Constitution it is necessary
to understand its historical background also. The period of history of Indian Constitution starts
from 1600 AD. The same year in England the East India Company was established.

Advent of British in India: The East India Company secured a Charter from Queen Elizabeth in
1600. The Charter granted the company a monopoly of trade with East. The first settlement of
the Company was at Surat in 1608. It was established as a result of 'royal farman' from Jahangir.
In course of time factories at Bombay, Calcutta and Madras became chief settlement or
Presidencies of the company. The Charter of 1601 gave the Company the power to make
reasonable laws, orders and ordinances for the good governance of the company. The power
conferred was power of minor legislation and they could not make any fundamental change in
English law.

Charter of 1661: This Charter authorized the Company to try cases, both civil and criminal,
relating to all persons whether servants of the Company or others, according to English law. By
this Charter, English laws were for the first time made applicable in the territory of India.

Charter of 1726: Charter authorized the Governor and Council of three Presidencies to make
laws and impose punishment for their contravention. These were not to be effective unless
approved and confirmed by the Company's Court of Directors in England. This Charter was
mainly meant for the establishment of Mayor's court in three Presidency towns. Thus, it
established Mayor's court in Bombay, Calcutta and Madras and introduced English laws in these
Presidencies. In 1757, the battle of Plassey took place and the Company defeated Sirajuddaulla,
Nawab of Bengal and laid foundation of British Empire. In 1765 Shah Alam granted Diwani
rights of Bengal, Bihar and Orissa to the Company i.e. responsibility of collection of revenue,
which also involved civil administration.
Regulating Act, 1773: The objecct of the Act was to regulate the affairs of the country for better
management. Thus, the Regulating Act, 1773 asserted the right of British Parliament to regulate
the affairs of the East India Company. Important provsions of Regulating Act, 1773 were: -

1. The Act changed the constitution of the Court of Directors of the Company and strengthened
the control of British Government over the Company.

2. The Act appointed Governor-General and four Councilors for the Presidency of Bengal.

3. The Council was also vested with the power of superintendence and control of the
Government of Bombay and Madras Presidency.

4. The Council was required to take all decisions by majority. The Governor General was given a
casting vote in case of an equality of votes. The decision of the Council was binding on the
Governor General.

5. Governor of Bengal was designated as Governor General of Bengal. Lord Warren Hastings
was appointed as the Governor General of Bengal.

6. The Act also provided for the establishment of a Supreme Court at Fort Williams in Calcutta in
1774.

7. The Court consisted of the Chief Justice and three other judges. Sir Elijah Impey was the first
Chief Justice of Supreme Court at Calcutta.

Pitts India Act, 1784: Pitts India Act, 1784 was introduced to remove the defects of the
Regulating Act, 1773. It was named after the British Prime Minister William Pitt. The Act
distinguished between com- mercial and political affairs of the Company. Board of Control
consisting of six Commissioners was established by this Act. Court of Directors managed the
commercial affairs of the Company while political affairs were managed by Board of Control.
Board of Control reported to British Parliament. Thus, Indian affairs came under the direct
control of the British government.

Charter Act, 1813: East India Company was renewed for 20 years but the Charter took away
exclusive trading rights from the Company. The trade was thrown open to all British merchants.
The regulations made by the Councils in India were required to be laid before the British
Parliament. It allotted Rs 100,000 to promote education to Indian masses. Financial provisions
were made to encourage a revival in Indian literature and for the promotion of science. Christian
Missionaries were allowed to spread their religion in India.

Charter Act, 1833: Governor General of Bengal was designated as Governor General of India.
The power to control, supervise, direct the civil and military affairs of the company was vested in
him. Lord William Bentick was appointed as First Governor General of India. It vested the
legislative power solely in the hands of Governor-General in Council. The Council was
empowered to make laws and regulations for all persons. The Charter Act of 1833 legalized the
British colonization of India. India's first law commission was set up under this Act and Lord
Macaulay was made its Chairman.

Charter Act, 1853: The Act created separate Legislative Council for India consisting of 12
members. Local representation was introduced for the first time in Indian legislature. Provisions
for recruitment in Civil services on the basis of open competition were introduced.

Government of India Act, 1858: The Act transferred the Government of India from the
Company to the British Crown. The Board of Control and Court of Directors were abolished.
Secretary of State for India was appointed who was the member of British Cabinet to administer
the government in the name of Britain. The powers of Board of Control and Court of Directors
were transferred to Secretary of State, who acted on behalf of Her Majesty. Secretary of State for
India was assisted by a Council of 15 members. Governor General was his agent & came to be
known as Viceroy of India. Lord Canning was appointed as the first Viceroy of India

Indian Council Act, 1861: This Act provided basic framework for federal Constitution on the
basis of which further developments took place. The Act enlarged the Council of Governor-
General for mak- ing laws by adding not less than 6 and not more than 12 members. Half of them
were non-official members. Indians were first time associated with the work of legislation.
Indians were part of Council of Governor-General as non-official members. Act restored the
legislative powers of Presidency of Bombay and Madras. Provincial legislatures were
empowered to make laws for benefit of province. Governor- General was empowered to issue
Ordinance, alter the limits of Province, Presidencies and territories.
Indian Council Act, 1909: This Act was also called Morley-Minto Reforms. It was named after
the then Secretary of State John Morley and the then Viceroy of India, Lord Minto. It introduced
separate electorate for Muslims which was meant to create disunity between Hindus and
Muslims. This Act legalized communalism and Lord Minto came to be known as the Father of
Communal Electorate. Size of the Legislative Councils, Central as well as provincial, was
increased. It provided (for the first time) for the association of Indians with the executive
Councils of the Viceroy and Governors. Satyendra Prasad Sinha became the first Indian to join
the Viceroy's Executive Council. He was appointed as the law member.

Government of India Act, 1919: This Act was also called Montague- Chelmsford Reforms. It
embodied the reforms recommended in the report of the Secretary of State for India, Edwin
Montague, and the Viceroy, Lord Chemlsford. Following are the important features of the Act:-

1. It introduced the system of diarchy (dual form of government) in major provinces. Subjects of
legislation were divided into two categories i.e. Central and Provincial.

2. The Governor General was given the power to decide whether a particular topic was a central
or provincial matter.

3. The provincial subjects were divided into two categories i.e. Reserved and Transferred. The
sub- jects which were considered of key importance for the welfare of the masses and for
maintaining peace and order in the State were classified as reserved, while subjects in which
there was more local interest were treated as transferred.

4. The Central Government was responsible to the British Parliament through Secretary of
State.Central Legislature had bicameral legislature i.e. Council of States (Upper House) and
Legislative Assembly (Lower House).

Simon Commission, 1927: A seven member Commission under the Chairmanship of Sir John
Allsebrook Simon arrived in British India in 1928 to review the provision of Government of
India Act, 1919. The Commission was strongly opposed by Indians and met with protests as it
has no Indian member. The Commission submitted its report in 1930. On the basis of the report
the Government of India Act, 1935 was drafted. The important recommendations given by
Simon Commission were:-
1. The new Constitution should, as far as possible, contain within itself, provisions for its own
development.

2. The ultimate Constitution of India must be federal.

3. The Lower House of the Central Legislature should be called the Federal Assembly. It should
be enlarged and be elected by the provincial councils.

Government of India Act, 1935: The Government of India Act, 1935 was the basis on which
Constitution of India was drafted. Following were the main provisions of the Act :

1. It created an All India Federation which was to consist of British India and the Princely States
but it was not compulsory for the Princely States to join the Federation. Rulers of Indian States
did not give their consent and the Federation envisaged by the Act never came into being.

2. It introduced Diarchy at the Centre. The subjects under the Federal List were divided into two:
Reserved and Transferred. The reserved subjects were controlled by the Governor-General who
administered them with the help of three counsellors appointed by him. They were not
responsible to the legislature. The transferred subjects were administered by the Governor-
General with his Council of Ministers (not more than 10). The Council had to act in confidence
with the legislature.

3. This Act made the Central Legislature bicameral comprising of two houses- Legislative
Assembly (tenure 3 years) and Council of State (tenure 5 years).

4. Legislatures of Bombay, Bengal, Madras, Bihar, Assam and United Provinces were made
bicameral.

5. The Act made three lists for distributing legislative powers. Federal list, Provincial list and
Concur- rent list. As regards matters not included in any of the lists, the Governor General in his
discretion could empower either the Federal Legislature or the Provincial Legislature to make
laws on such specified sub- jects.

6. Governor General was empowered to issue ordinances in case of urgency when Federal
Legislature was not in session.
6. The Act established the Federal Court. The Federal Court had a Chief Justice and not more
than 6 other Judges. The Court had original, appellate and advisory jurisdiction. The court had
jurisdiction over the whole of British India and the Federal States.

7. The Act also provided for the establishment of Reserve Bank of India, Federal, Provincial as
well as joint Public Service Commission.

Cripps Mission 1942: Sir Stafford Cripps a member of British Cabinet in his declaration, for the
first time, recognized the 'Right of Dominion' for India. Indians were given promise of liberty to
frame their own Constitution.

Cabinet Mission Plan, 1946: In order to effectuate transfer of powers from British Raj to Indian
Leadership, the then British Prime Minister Clement Atlee sent the Cabinet Mission Plan
comprising of three cabinet ministers namely Lord Pethick-Lawrence, Sir Stafford Cripps and A.
V. Alexander. The prime objective of this mission was to help India in achieving independence
and setting up a Constituent Assembly for drafting the Constitution of India. Important
recommendation were as follows:-

1. It also proposed to set-up interim government with support of major political parties.

2. There should be Union of India, consisting of both the British India and the States which
should deal with foreign affairs, defence and communications.

3. States shall retain all subjects and powers other than those ceded to the Union.

4. Provinces should be free to form groups with executive and legislatures and each group could
determine the provincial subjects to be taken in common.

Indian Independence Act, 1947: It created two independent dominions-India and Pakistan. It
led to the creation of Pakistan. Each dominion was to have a Governor-General. The Constituent
Assemblies of both dominions were empowered to frame laws for their territories. The
legislatures of each of the new dominions were to have full legislative sovereignty and no Act of
the UK Parliameent passed after 15th August, 1947 was to extend to either of the new
dominions. The paramountacy of the British Crown over the Indian States was to lapse.
To demarcate boundary line between India & Pakistan a Commission was constituted under the
chairmanship of Sir Cyril Radcliffe. Lord Mountbatten became the first Governor General of
Dominion India. C. Rajgopalachari became first Governor General of free India.

Previous Years' Questions of Mains Examinations

 Write shorts note on Salient features of the Government of India Act, 1935.
 What extend did the Government of India Act, 1935. Contribute to the present
Constitution of India? Discuss, pointing out relevant provisions of each.
 Write shorts note on Indian Independence Act, 1947.
 Write short note on Salient features of Indian Independence Act, 1947.