Evolution of Indian Constitution

Government of India Act, 1858:

It was first statute passed by British Parliament for governance of India under direct rule of the British Government. It was dominated by principle of absolute imperial control without any popular participation. Subsequent sequence of statutes till writing of our constitution is one of gradual relaxation of imperial control and evolution of responsible government. According to this act, there would be a Secretary of State(SoS) on India, assisted by 15 member Council of India, who would exercise power of crown over India. SoS was responsible to British Parliament and governed India through Governor General(GG) assisted by executive council. Essential features of system introduced by this act were centralized administration, No separation of function ie. civil, military, executive and legislative all powers in GG, absolute control on Indian administration by SoS and totally bureaucratic system unconcerned of public opinion in India.

Indian Councils Act, 1861:

GGs executive council, which so far included exclusively officials, was expanded to include a few non-official members while transacting legislative business as Legislative council. These non official members were to be nominated and had limited mandate. They could only consider proposals placed before it by GG and could not criticize act or conduct of officials. Same kind of provisions were made in Act of 1861 for Legislative Council in provinces.

Indian Council Act, 1892:

Two important relaxations were made in this act 1. Though majority of officials were retained, non official members henceforth were nominated by Bengal Chambers of Commerce and Provincial Legislative Council, whereas the

non-officials of Provincial legislative council were nominated by local bodies like municipalities, district boards and universities. 2. Council could discuss budget and raise questions to executive. Morley Minto Reform, Indian Council Act, 1909: Majority of non-official members were introduced in provincial legislative council by including elected non-official members in council whereas majority of official retained in Central Legislative council. Legislative councils were also given power to pass resolutions on the budget and other important public matters save some specified subjects such as foreign affairs, military or Indian States. Separate representation for Muslim community was introduced thus sowing seed of partition. Motagu-Chelmsford Reform, 1919: Dyarchy in Provinces: Subjects of Administration were divided in two categories- Central and Provincial, Provincial were further subdivided into transferred and reserved. Elected members in provincial council were raised to 70%. Transferred subjects were to be governed by Governor on the aid and advice of Council of Ministers thus laid down a responsible government in narrow sphere of transferred subjects. Relaxation of central control over provinces was done through division of subjects in Central and provincial. Thus provinces can formulate their own budgets to raise revenue and spend it to run administration of such subjects. It should be noted that Provinces got power by way of delegation from the Center and the central legislature retained power to legislate for the whole of India relating to any subject. Therefor it should be mistaken for federal distribution of power.

Bicameral Indian legislature was also introduced. 60 members 34 of which elected in upper house aka Council of State and 144 members of which 104 were to be elected in lower house aka Legislative Assembly. The electorates were however arranged on a communal and sectional basis, developing tendency of separatism further. There were many shortcomings in this Act such as it was GG and not courts who had authority to decide whether particular subject was central or provincial or without prior consent of GG , legislature could not take up for consideration any bill relating to a number of subjects, finance was set as reserved subjects therefore many progressive measures taken by provincial government were not effective for want of funds, ICS were responsible to SoS and not to ministers, overriding powers of governors, no provision for collective responsibilities of ministers etc. Working of Dyarchy system in provinces proved to be disaster and could not satisfy Indian aspirations and led to Non Co-operation movement. Simon Commission: Simon commission was appointed in 1927 by British government to inquire into and report on working of the Act of 1919. There was no Indian representative in the commission and this fact invited wrath from masses of country in form of processions, marches, protest, petitions, boycott of first Round table conference organised to discuss Simon commission report that was submitted in 1930. A white paper was prepared on the result of this conference, which was examined by a Joint Select Committee of British Parliament and Government of India bill was drafted in accordance with the recommendation of Joint select committee and passes with certain amendments as Government of India Act, 1935. Government of India Act, 1935:

Main features of this act were: In all previous GoI acts government of India was unitary but first time in GoI Act, 1935, A federal structure of government was prescribed. But Indian rulers of states never gave their consent and therefore federation as envisaged in act was never realized. Certain degree of autonomy was provided to provinces this time and provinces were no longer delegation of Central government but were autonomous units of administration. Legislative powers were divided between provinces and centre. Now governor was not subordinate of Governor General and was required to act on aid and advice of CoM. Governor was to govern on behalf of the Crown. Though in certain matters, governor has power of discretion and exercise of his individual judgement and not to act on advice of CoM. A system of Dyarchy at center was placed. Function of GG were divided in two groups. Administration of defense foreign relations, ecclesiastical affairs and of tribal areas, was to be made by GG in his discretion with help counsellors appointed by him who were not reponsible to legislature. In All other matters, GG was to act on adivce of CoM who were responsible to Legislature. But even in this regard, GG had power to act against advice if he felt any of his special responsibilities was involved. But in reality no counsellors nor any CoM were appointed under Act, the old executive council provided by 1919 act continued to advice GG until the Indian Independence Act,1947. Central legislature was bicameral, legislature of some of provinces were bicameral and some were uni-cameral. There were few limitations on Central legislature as follows

A bill passed by Central Legislature was subject to veto by crown and Governor. GG was empowered to prevent discussion or suspend proceeding in legislature if he felt it would affect his special responsibilities. GG could pass permanent acts at any time for discharge of special responsibilites and promulgate ordinances at any matter during recess of legislature. No bill or amendment could be introduced in legislature without GGs previous consent wrt certain matters. Though Indian states did not join the Federation, the federal provisions were in fact applied as between center and provinces. The division of legislative subjects between center and provinces proposed in this act were kept more less same in Our present Constitution. Subjects were divided in 3 categories- Federal(External affairs, military, coinage, census etc), provincial(Police, education, provincial public services etc) and Concurrent(Criminal laws and procedures, Marriage and divorce, Arbitration etc). In case of repugnancy in the Concurrent field, Federal law will prevail over provincial law to the extent of repugnancy. Dominion status was not conferred by GoI Act, 1935 Cripps Mission Demand for constituting Constituent assembly for framing their own constitution by Indian people were made by Jawahar Lal Nehru in 1938. In 1940, British Coalition government recognized the principle that Indians should themselves frame a new Constitution for autonomous India and in March 1942, Cripps was sent with draft declaration that provided A constituent assembly be elected to frame Indian constitution and India will be given Dominion status.

There should be one India Union comprising all unions and Indian states Any province which was not ready to accept the constitution would be free to retains its constitutional position and can enter into separate constitutional arrangements. As expected Cripps proposals were rejected by Muslim League protesting concept of one Indian union and one constituent assembly. Cabinet Mission Cabinet delegation was sent to reach an agreement on constitutional question among Congress and Muslim league. Though it rejected Muslim leagues demand for a separate constituent assembly and a separate state for Muslims, the scheme which they recommended involved virtual acceptance of the principle underlying the claim of Muslim league. Main features were There will union of India comprising both Indian provinces and states and having exclusive jurisdiction over external affairs, military and communication. All residuary power will belong to states and provinces. Any question raising a major communal issue would require its decision a majority of representatives of two major communities present and voting as well as a majority of all the members present and voting. The provinces will be free to form groups with executive and legislatures and each group would be competent to determine the provincial subjects which would be taken by the group organisation. It also recommended scheme for electing constituent assembly as follows Each province and each state or group of states were allottes the total number of seats proportional to their representative population roughly in the ration of one to a

million. As a result, the provinces were to elect 292 members while Indian states were allotted a minimum of 93 seats. Seats in each province were divided in three main communities- muslim and sikh and general, in proportion to their population. Members in each community in the provincial Legislative assembly elected their own representatives by the method of proportional representation with single transferable vote. The method of selection in the case of representatives of Indian states was to be determined by consultation. Mountbatten Plan Congress and League reached at an agreement over partitioning two problem provinces of Punjab and Bengal so as to form absolute Hindu and Muslim majority blocks. The actual decision to partition however was left to the vote of members of Legislative assemblies of these two provinces, meeting in two parts, according to a plan known as Mountbatten Plan. One part representing muslim majority districts and the other the rest of the province. The members of each part will be empowered to vote whether or not the province should be partitioned. If a simple majority of either Part decided in favor of partition, division will take place. If partition were decided upon, each part of legislative assembly would decide whether it would join the existing or a new and separate Constituent Assembly. Indian Independence Act, 1947 It declared that India ceased to be a Dependency and the suzerainty of Crown over Indian states with effect from 15 August, 1947. Office of Secretary of State of India was abolished. Crown was not longer source of authority of neither India nor Pakistan.

Governor Generals of 2 dominions and Provincial governors to act as constitutional heads. There was not longer executive council or Consellors as envisaged in GoI Act, 1935. The words in his discretion and individual judgement were removed from GoI Act, 1935, wherever they occurred in act. Thus GG and Governors of provinces lost their extra ordinary powers of legislation so as to compete with legislature. The central legislature ceased to exist on 15 August 1947. Newly formed constituted Constituent assembly was to also function as Central legislature of dominion until new legislature was constituted under new constitution. Constitution as formulated by Constituent assembly was signed by President of Assembly on November 26, 1949 and was declared as passed.