Constitutional Developments under British Crown (1858-1947)

Constitutional Developments under British Crown (1858-1947)

Constitutional Developments under British Crown (1858-1947)

Government of India Act, 1858

This significant Act was enacted in the wake of the Revolt of 1857-also known as the First War of Independence or the 'sepoy mutiny'.

 

The act known as the Act for the Good Government of India, abolished the East India Company, and transferred the powers of Government, territories and revenues to the British Crown.

            The First war of Independence of 1857 brought to an end the era of the East India Company. In 1858, the British Parliament passed the Act of 1858. The Provisions of this Act are:

  1. It abolished the Court of Directors and the Board of Control and vested their powers in one of Her Majesty's Secretary (a minister in the British Cabinet).
  2. By this Act Powers of the Crown were to be exercised by the Secretary of the State for India assisted by council of 15 members. The Governor-General came to be called as the "Viceroy" from then onwards.
  3. The Governor-General and Governors of the Presidencies were to be appointed by the Crown and the member of their Councils, by the Secretary of State-in-Council.
  4. Lieutenant Governors were to be appointed by the Governor-General, subject to the approval of Her Majesty and appointments to the covenanted civil service were to be made through open competition with the assistance of the Civil Service Commission.
  5. The dual government was abolished which was introduced by the Pitt's India Act, 1784.

FEATURES OF THIS ACT:

  • It provided that India, henceforth, was to be governed by, and in the name of, Her Majesty. It changed the designation of the Governor-General of India to that of Viceroy of India. He (Viceroy) was the direct representative of the British Crown in India.Lord Canning, thus, became the firstViceroy of India .
  • It ended the system of double Government by abolishing the Board of Control and Court of Directors.
  • It created a new office, Secretary of State for India, vested with complete authority and control over Indian administration. The secretary of state was a member of the British Cabinet and was responsible ultimately to the British Parliament.
  • It established a 15-member council of India to assist the Secretary of State for India. The council was an advisory body. The secretary of state was made the Chairman of the council.
  • It constituted the Secretary of State-in-Council as a body corporate, capable of suing and being sued in India and in England.

Assessment of the Government of India Act of 1858-

Following the enactment of the 1858 Act, a notable transition occurred in the administration of India by the British government. The appointment of highly capable Secretaries of State for India markedly enhanced administrative efficiency. Simultaneously, the infusion of skilled English individuals into the Indian civil service bolstered this efficiency. Consequently, the British Parliament gradually relinquished its inclination to interfere in Indian affairs, recognizing the competence of local decision-makers. This transition underscored a growing reliance on on-the-ground expertise and a reduced parliamentary interest in Indian governance, thereby symbolizing the evolving dynamics of British rule in India during this period.

The Indian Councils Act, 1861

THE INDIAN COUNCIL ACT OF 1861 IS AN IMPORTANT LANDMARK IN THE CONSTITUTIONAL AND POLITICAL HISTORY OF INDIA

  • Indians were given representation in the Viceroy's Councils.
  • 3 Indians entered the Legislative Council
  • SIR DINKAR RAO
  • MAHARAJA OF BANARAS
  • MAHARAJA OF PATIYALA

  All Are Nominated By Viceroy

India council act of 1861 Provided for

  • Decentralization tendency
  • Legislative council of punjab
  • Started associating Indian with law making process
  • portfolio system introduced

Changes in the Central Government

  1. Expansion of Governor's Executive Council:  First time the viceroy nominated some non-official members to his council. The same council was transacting legislative function as legislative council.
  2. The Governor-General was empowered to "make rules and orders for more convenient transactions of the business in the Council." In exercise of this power, Lord Canning introduced the Portfolio System in the Government of India and thus, laid the foundations of the Cabinet system of Government in India.
  3. The Governor-General was given the right to exercise an Absolute Veto and to Promulgate Ordinance. The Ordinance enjoyed a similar authority as that enjoyed by a law and remained in force for six months.

Changes in the Provincial Government

  1. The Act restored to the Presidencies of Bombay and Madras, the lawmaking powers, which had been taken away from them by the Charter Act of 1833.
  2. The Provincial Legislative Council was to perform strictly legislative functions.
  3. All the Bills passed by the Provincial Legislative Council were subject to the assent of the Governor as well as the Governor-General.

Synopsis: The legislative council and the executive council was the same body but the legislative council was neither deliberative nor representative in any sense. The members were not elected but nominated ones hence their opinions acted as suggestions and the effective powers reserved to the Governor General such as ordinance making etc.

Assessment of the act of 1861-

The 1861 Act marked a pivotal step in India's governance, focusing on building a governmental structure. It unified the presidencies, placing them under a common system. Legislative powers were vested in Bombay and Madras, paving the way for similar councils in other provinces, eventually leading to provincial autonomy in 1935. However, it lacked clear delineation of central and local legislative authority, and the legislative councils primarily focused on enacting laws, unable to address grievances or scrutinize administration. Representative government akin to England's model was absent, with no provisions for open financial discussions. In essence, it was a critical, though imperfect, step towards Indian governance reform.

 

The Indian Councils Act, 1892

  1. Under this Act, the number of additional members in the Governor-General's Council was expanded by adding 8-20 new members and two-fifth of these new additional members were to be non-officials.
  2. Power to Discuss the Budget: The Council was now allowed to hold a discussion on the Annual Financial Statement of the Budget and permission to ask questions to the Executive.

KEY FEATURES OF THIS ACT:

  • The act increased the number of additional (non-official) members in the Central and provincial legislative councils.
  • It increased the functions of legislative councils and gave them the power of discussing the budget and addressing questions to the executive.
  • It provided for the nomination of some non-official members of the Central Legislative Council by the viceroy on the recommendation of the provincial legislative councils and the Bengal Chamber of commerce and that of the provincial legislative councils by the Governors on the recommendation of the district boards, municipalities, universities, trade associations, zamindars and chambers .
  • The act made a limited and indirect provision for the use of election in filling up some of the non-official seats both in the Central and provincial legislative councils.

Assessment of the act 1892-

The 1892 Act expanded legislative functions significantly, allowing members to ask questions and receive information from the executive. It introduced financial transparency with the presentation of annual accounts and budgets, enabling members to offer input. Eminent leaders like Gokhale, Mookherji, Ghosh, and Banerjee joined the legislatures. However, criticism arose due to indirect elections and government discretion in accepting nominations. Legislative councils had limited powers, unable to ask supplementary questions, and rules were seen as unsatisfactory, leading to overrepresentation of some classes. In conclusion, while falling short of Congress' demands, the 1892 Act marked significant progress, introducing representative principles and laying the foundation for parliamentary governance in India.

The Indian Councils Act, 1909 (Morley-Minto Reform)

Morley-Minto Reform, known by names of the Secretary of State (Lord Morley) and the Viceroy (Lord Minto) were implemented by the Indian Councils Act, 1909.

SYNOPSIS: The deliberative functions of Legislative Councils were increased by giving them prospects of influencing the administrative policy. The budget passing procedure encouraged public participation.  

KEY FEATURES OF THIS ACT:

Enlargement of Legislative Councils-

    • Indian councils Act of 1909 increased the size at the central and provincial level. The number of members in the Central Legislative Council was raised from 16 to 60.

Introduction of Communal representation for Muslims

The act introduced a system of communal representation for Muslims by accepting the concept of 'separate electorate'.

There were establishment of separate constituency for Muslims so that Muslim community can cast their vote to elect their representative

Now members allowed to ask supplementary questions

Now, members were allowed to ask supplementary questions, move resolutions on the budget, and so on which debarred them in earlier reforms.

Association of Indians with the Executive Councils-

The act provided 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.

The Government of India Act, 1919  (THE MONTAGU – CHELMSFORD REFORM)

            During the First World War, Gandhi Ji had requested the nation to help the allies in their war efforts because they were fighting for the cause of democracy. The Government of India Act, of 1919 was enacted to convince the Indians about the some.

  • Mont-Ford Reforms led to the enactment of the Government of India Act of 1919.
  • The sole purpose of this Act was to ensure Indians of their representation in the Government.
  • Edwin Montagu was the Secretary of State, and chelmsford was the viceroy at that time.
  • The Act introduced reforms at the Central as well Provincial levels of Government

Salient Features of the Act

  1. Preamble: The act had preamble that laid down the basic principles and policies upon which it was based. According to it, the policy of the British Parliament:
  1. to provide for an increasing association of Indians in every branch of the Indian administration,
  2. to develop self governing institutions with a view to the progressive realisation of responsible government in British India as an integral part of the empire,
  3. the time and manner of gradual advance towards this goal was to be decided by the British Parliament,
  4. accordingly, the Preamble suggested for a decentralised unitary form of government.
  1. Distribution of Functions:
  • The Act divided the functions of government into two categories: Central and Provincial.
  • The provincial subjects were further subdivided into Transferred and Reserved.
  • In the Transferred subjects, the Governors were to assisted by the ministers responsible to the legislature.
  • While in the Reserved subjects, the Governors were to be advised by the councillors who were not accountable to the legislature. Thus, in the provinces, a new form of Government, dyarchy, was introduced. Dyarchy means dual set of governments, i.e. accountable and non-accountable. (DYARCHY IN PROVINCES)
  1. Powers of the Central Legislature: The Central legislature was empowered to consider, pass or reject legislation on any of the subjects enumerated in the Central Listbut the Governor-General had the last word on any Bill passed by the Legislature. He possessed the power to prevent the consideration of a Bill or any of its part, on the plea that it was injurious to the peace and tranquility of the country. He could disallow a question in the legislature. He had the power to withhold his assent to any Bill passed by the legislature without which, it could not become an Act. He also had the power to disallow an adjournment motion or debate on any matter. He could enact a law which he considered essential for the safety and tranquility of the empire even if the Legislature had refused to pass it.
  2. Categories of Members: The Act provided for three categories of members: elected nominated officials and nominated non-officials. The first category had about 70% members, the second had about 10% and the third had about 20%. There was a majority of elected members.
  3. The Constituencies and Franchise: The Act provided for restricted franchise and communal electorate. The voting qualification varied from province to province and within the same province it differed from rural to urban areas. The constituencies were divided into two categories: general and special. The general constituencies were demarcated to return Hindus, Muslims, Christians, Anglo-Indians, and Sikhs etc. Special constituencies were devised to give representation to land holders, universities, chambers of commerce etc.
  4. Strength of the Central Legislature: The Act introduced bicameral legislature at the Centre comprising the Council of States and the Central Legislative Assembly. The former had 60 members, of whom 33 were to be elected and 27 to be nominated. The latter consisted of 145 members, of whom 104 were to be elected and 41 to be nominated.
  5. Powers of Provincial Legislatures: The strength of provincial legislatures differed from province to province. The provincial legislative councils were empowered to legislate on provincial subjects. However, the Act armed the Governor with the extensive powers of legislation. He could stop at any stage, the consideration of a Bill on the ground that it was harmful for the safety and peace of the province. He was empowered to return any Bill to the House for reconsideration or reserve it for the consideration of the Governor-General who in his turn could reserve it for the opinion of the Crown.
  6. The Executive Council: It was responsible to the Secretary of the State and not to the Central Legislature. The maximum limit imposed on the membership of the Governor-General's Executive Council was removed. Of the six members of the Governor-General's Executive Council, other than the Commander-in-Chief, three were required to be Indians. A pleader of the Indian High Court was also made eligible for appointment as a taw member.
  7. Secretary of the State for India: The control of the Secretary of the State for India over the central and provincial administration was reduced.

Shortcomings of Government India Act 1919:

  1. Highly strong centre with false devolution of power to provinces. For example the provincial government could not even take up the consideration of any bill related to many bills without previous consent of the Governor-General.
  2. Practice of diarchy arose annoyance due to partial motives.
  3. The main cause of discontent was the financial prejudice and control over the purse. Finance was under reserved subject category and was under Executive Council instead of a minister.
  4. There was no provision for collective responsibility of ministers to the provincial legislature.
  5. The introduction of ministerial government over a part provincial sphere proved ineffective.

Assessment  of the act of 1919-

The Act of 1919 had notable shortcomings for Indian nationalists, including the lack of responsible government at the Centre, the persistence of 'separate electorates,' and the complexity of provincial dyarchy. However, it marked a significant departure by introducing a limited transfer of power, allowing Indians to govern alongside elected majorities in legislatures, thereby taking a step towards self-governance.

The Government of India Act, 1935

The Act marked a second milestone towards a completely responsible government in India.

It was a lengthy and detailed document having 321 Sections and 10 Schedules.

The Government of India Act, 1935, is regarded as the second milestone on the highway leading to a completely responsible government. It was a lengthy document, detailed and complicated having 321 Sections and 10 Schedules. The basic features of the Act were the introduction of partial responsibility at the Center, Provincial autonomy and an All India Federation.

  1. The All India Federation: The Act provided for the establishment of an All India Federation comprising of the British India Provinces that would desire to come into the Federation and an Indian State. While under all the previous Government of India Acts, the Government of India was unitary, the Act of 1935 proposed a federation, taking the Provinces and the Indian States as one unit. But the accession of the States to the Federation was optional. It could not be established until the States had given their assent to join the Federation.
  2. Dyarchy at the Centre: The Act of 1935 abolished Dyarchy at the Provincial level and introduced it at the Centre. The Executive authority of the Centre was vested in the Governor-General. The Federal subjects were divided into two categories —the reserved and the transferred :
    1. The administration of 'reserved subjects like defence, external affairs, ecclesiastic affairs and tribal areas, was to be made by the Governor-General in his discretion with the help of Councillors, appointed by him, who were not responsible to the Legislature.
    2. The transferred subjects, on the other hand, were to be administered by the Governor-General, who was to act on the advice of the Council of Ministers, who were responsible to the Legislature.
  3. Provincial Autonomy: The important feature of the new Act was that it marked the beginning of Provincial Autonomy. The Act divided Legislative power between the Provincial and Central Legislatures, and within its defined sphere, the Provinces were no longer delegates of the Central Government but were autonomous units of administration. To this extent, the Government of India assumed the role of a Federal Government vis-a-vis the Provincial Governments, though the Indian States did not join the complete scheme of Federation.

The executive authority of a Province was also exercised by a Governor on behalf of the Crown and not as a subordinate to the Governor-General. The Governor was required to act with the advice of ministers responsible to the Legislature.

  1. Federal Legislature: The Federal Legislature was to consist of two Houses, the Council of States and the Legislative Assembly. The Legislative Assembly (Lower House) was to consist of 375 members, 250 of British Indian Provinces and 125 representing the Indian States. Its tenure was, unless dissolved earlier, five years. The Council of States (Upper House) was to consist of 260 members, out of which 156 members were to represent British India, six representatives to be nominated by the Governor-General and the rest elected directly. One hundred and four members were to be nominated by the Princes of the Indian States. The powers of the Federal Legislature were extremely limited. They had in general, equal powers but no finance bill could be placed in central legislature without the consent of the Governor General. The funding for the British responsibilities and foreign obligations (e.g. local payments, pensions etc), at least 80 per cent of the federal expenditures were to be non-votable and were to be taken-off from the top before any claims could be considered for social or economic development programmes. If there was any difference on any issue between the two Houses, the Act provided for a joint session of the two Houses for solving the deadlock.
  2. Provincial Government: The Provincial Executive was to consist of the Governor and a Council of Ministers to advise him. The Governor was the head of the Executive. The Governor was manifested with three types of powers: (a) Discretionary powers; (b) Powers exercised in his individual judgment and (c) Powers to be exercised on the advice of the ministers. But with regard to the matters involving his special responsibility, he had the right to override the advice of the ministers.
  3. Provincial Legislatures :
  • After this Act, the Legislatures of Bombay, Bengal, Madras, Bihar, Assam and the United Provinces were made bicameral (i.e. comprising of two houses) and in the legislatures of other five Provinces, unicameral
  • The normal duration of the Assembly was five years. The Provincial Legislature had the power to make laws on the subjects mentioned in the Provincial list. They could also make laws on the subjects in the Concurrent List.
  • The Legislature's power was extended to those residuary subjects which were assigned to it by the Governor-General.
  • The previous sanction of the Governor and Governor-General for introducing almost all the Bills was obligatory.
  • Financial Bills could only be introduced on the recommendation of the Governor.
  • No Bill passed by the Legislature could become an Act without the assent of the Governor. The Governor had the right to return Bills for reconsideration.
  • The discretionary powers and the responsibilities of the Governor enabled him to act as a dictator in the provinces.
  1. Distribution of Legislative Power between the Centre and the Provinces:

The Act made a three-fold division of power between the Centre and the Provinces on the basis of three lists

  • The Federal List, Provincial List and the Concurrent List
  •  The Federal Legislature had the exclusive power of legislation over the subjects mentioned in the Federal List. It consisted of 59 subjects. These subjects were subjects of national importance and were considered as essential and vital for the existence of the Federation. The most important of them were external affairs, currency and coinage, navy, military, air force, census, etc.
  • The Provincial Legislature had an exclusive jurisdiction to make laws on subjects mentioned in the Provincial List. It consisted of 54 subjects which were considered as the subjects of local importance. Some of the most important ones amongst them were, police, provincial public services, education, etc.
  • The Federal and Provincial legislatures were to have concurrent powers to legislate on the subjects mentioned in the Concurrent List.
  • The subjects in the Concurrent List were considered as essentially of a provincial and local nature but required a uniform policy throughout India. It contained 26 subjects and criminal law criminal procedure, civil procedure, marriage and divorce, arbitration, etc., were some of the most important subjects amongst them.

The Federal Legislature had the power to legislate with respect to the subjects enumerated in the Provincial List if a proclamation of emergency was made by the Governor-General. The Federal Legislature could also legislate with respect to a Provincial subject if the Legislatures of two or more Provinces desired this in their common interest. In case of repugnancy in the concurrent field, a Federal law prevailed over a Provincial law to the extent of the repugnancy. It was not vested in either of the legislatures, Central or Provincial but the Governor-General was empowered to authorise, either the Federal or the Provincial Legislature, to enact a law with respect to any matter which was not enumerated in any of three Legislative Lists.

The Federal Court: The Act established a Federal Court. The Federal Court had one Chief Justice and not more than six other judges. The retiring age of these judges was sixty-five years. The necessary qualifications for the judges were also mentioned in the Act. The judges were appointed by the Crown.

Jurisdiction of Federal Court: The Federal Court had three kinds of jurisdiction, original, appellate and advisory. The Court had exclusive original jurisdiction in any dispute between the Federation and its units or the units inter-se. The appellate jurisdiction of the Federal Court extended to appeals from the judgement of any High Court in India to the Federal Court in case the High Court certified that the case involved a substantial question of law as to the interpretation of the Government of India Act, 1935 or any Order in Council made there under. An appeal could go to the Privy Council based on decisions of the Federal Court. The Federal Court also had an advisory jurisdiction. The Governor could refer any question of law to the Court to obtain its opinion whenever he liked to seek its advice.

KEY PROVISIONS OF THE ACT:

Creation of All India federation

  • It provided for the establishment of an All-India federation consisting of provinces and princely states as units.
  • The provinces in British India would have to join the federation but this was not compulsory for the princely states

Creation of three set of lists

  • It divided the powers between the centre and units in terms of three lists- Federal list, provincial list and the concurrent list. Residuary powers were given to the Viceroy.

 

Abolition of dyarchy

  • Diarchy was abolished from the provinces which was introduced earlier by Government of India Act 1919 and introduced 'provincial autonomy' in its place

Diarchy at the centre

  • It provided for the adoption of dyarchy at the centre.However, this provision did not come into effect at all

Introduction of Bicameralism

  • Bicameralism was introduced in six provinces-Bengal, Bombay Madras, Bihar, Assam and the United Provinces

Federal Court

  • A federal court was established at Delhi for the resolution of disputes between provinces and also between the centre and the provinces

Abolition of Indian Council

  • The Indian Council was abolished. The Secretary of State for India would instead have a team of advisor.

Setting up of Several Bodies

  • The act provided for setting up- Federal public service commission, provincial public service commission, joint public service commission, federal court, Reserve bank of india.

This act signify an important part of the Act provided elaborate safeguards-which amounted to vital subtraction from the principle of self-government. Besides, the restrictions on the law-making powers of the legislatures, the Governor-General and Governors were empowered to override ministers and legislatures in certain circumstances. In the event of what a General might consider a breakdown of the Constitutional machinery, he could even assume absolute dictatorial powers.

Assessment of the act 1935-

Following the enactment of the 1858 Act, a notable transition occurred in the administration of India by the British government. The appointment of highly capable Secretaries of State for India markedly enhanced administrative efficiency. Simultaneously, the infusion of skilled English individuals into the Indian civil service bolstered this efficiency. Consequently, the British Parliament gradually relinquished its inclination to interfere in Indian affairs, recognizing the competence of local decision-makers. This transition underscored a growing reliance on on-the-ground expertise and a reduced parliamentary interest in Indian governance, thereby symbolizing the evolving dynamics of British rule in India during this period.

Indian Independence Act, 1947

The provisions of the Act were as follows:

  1. The Act provided for the creation of two independent dominions, India and Pakistan on 15th August, 1947.
  2. Each dominion was to have a Governor-General, who was to be appointed by the British monarch.
  3. The Constituent Assemblies of both the dominions were empowered to frame laws for their respective territories till the New Constitution came into force.
  4. After August 15, 1947, the British Government was not to control either the Dominion or the Provinces.
  5. For the time being, till the new Constitutions were framed, each of the dominions and the provinces were to be governed by the Government of India Act, 1935.
  6. The post of the Secretary of the State for India was to be abolished and was taken over by the Secretary of the Commonwealth of Nations.
  7. The Act proclaimed the lapse of British paramountcy over the Indian States. The Indian Independence Act, 1947, came into force on August 15, 1947, when the British rule in India came to an end.