Constitutional Development in British India

Download pdf (right click and 'save as target') or Continue Reading Online

Background

Now we are going to discuss the contents of different Acts which the British govt enforced in India from time to time. So that our discussion of the political development is within the backdrop and the background of the constitutional changes which the British made in India.

Following acts were introduced by the British government in India.

• Indian Councils Act, 1861
  
• Indian Councils Act, 1892
  
• Government of India Act, 1909
  
• Government of India Act, 1919
  
• Government of India Act, 1935
  

When we look at these five Acts which we will be discussing very shortly, what we find is the practice of gradualism. The British introduced political and constitutional changes step by step and gradually. They gradually opened up the political process to Indians. While discussing all this we must keep in mind that all these major constitutional documents and other actions which the British adopted were basically for a colony, India was at that time a British colony and from the British point of view the interests of the empire was supreme. So while discussing all these Acts we have to keep in mind this reality that we are discussing the constitutional developments in a state which was under the colonial rule of British.

End of East India Company’s Rule

We have to go back to 1858 to start discussion on constitutional development. On August 2, 1858 British Parliament passed a law for complete takeover of all rights of the East India Company over India. Previously, that is before this law was passed East India Company was running India although East India Company was set up under a British law and the British govt had influence in the affairs of the state but it was not the direct rule of the British Crown. So in August 1958 that law came in and they decided that under this law the Indian administration would be taken over by the British govt. Post of Secretary of State for India was created through the cabinet. The Secretary of State for India was empowered about government and revenues of India.

On November 1, 1858 the law that had been passed became operative and Queen Victoria issued a proclamation for the assumption all responsibilities and control of India by the British Crown and from that time to onward India was being run directly by the British Crown and East India Company had been pushed to the periphery. And Queen Victoria also became the head of the state or emperor of India and that was the change and this change that is the British Crown directly assuming of India then began to introduce constitutional changes for running this colony that is the Indian colony in a effective, systematic and organized manner and in this connection the first legal framework of constitutional significance for the point of view of discussion of political development in India after 1857 was India council Act of 1861. Lord Canning, Governor General of India was given the title of “Viceroy.” He continued in office but not as the Company’s representative but direct representative of British Crown. Moreover armies of the Company came under British Control.

Indian Council Act, 1861

This act was the first legislation by the British government in India. Before that laws were promulgated by the East India Company. This Act was passed by the British parliament and in this Act the British govt outlined certain broad principles which they thought would be relevant and useful for running administration in India and therefore, this Act Indian Council Act of 1861 becomes important because for the next 30 years this Act was the main framework within which the British Indian govt was working although changes were made and some other laws were brought in but the basic document was this Act of 1861.

This Act provided for the expansion of the Executive Council that is the EC of the Viceroy because once the British took over the Indian administration Governor General also assumed the title of Viceroy. So the Viceroy’s EC was to be expanded. Viceroy or the Governor General could assign special tasks to any members of the Executive Council.

Important matters were to be discussed with the Governor General. Some important subjects were kept directly under the Viceroy, e. g., Foreign Department. Foreign in Indian content basically meant the dealing of the British Indian govt with the princely states. Different states that existed indifferent parts of India which were not technically under the British rule. Since it was an important field so it was being managed by the Viceroy.

Another important feature of this Act was that the non-official members were to be nominated to the Council and in this connection Indian could also to be appointed to the Executive Council

Membership of the Council was raised: 6 to 12. Half of them were to be non-officials, nominated for two years.

The Council in its legislative capacity was given very limited legislative powers. It was just the beginning the British desire was not to create a really a legislative body, they could not want to do that at that time. So some powers were given to raise questions but those were very limited powers which were given under this Act.

In this Act the most significance development was representation of Indians by nomination whose number was raised from 6 to 12. In Madras and Bombay Councils approval of the Governor General (GG) and Governor was needed. This act provided Indian representation by nomination. After the episode of the 1857 Sir Syed Ahmed Khan wrote a pamphlet Risala-i-Asbab-e-Baghawat-i-Hind in which he describe one of the reason of the mutiny that there was no communication between the ruler and the ruled because the Indians had no representation in any legislative body, therefore there was no way that the British govt could understand what are the reaction of the people to the policies and administrative decisions. In this way the Indians had no channel to communicate their concerns to the British govt and from Sir Syed, s point of view that was projected from that pamphlet this was an important reason that host of grievances developed and along with other causes contributed to what happened in 1857. So he proposed that there has to be some method or some arrangement for communication between the ruler and the ruled and here in this Act we see that the British govt took an important decision that is Indians were to be brought into the governmental process but the system was through nomination, elected principle was introduced later on but at this stage it was through nomination which obviously mean that the people who were acceptable to the British were to be nominated.

Nevertheless, it was a beginning that some Indians were sitting in such an important council and in this way communicate what the educated Indians were thinking at that time. So this Act is important in this respect that the process of induction of Indians into the governmental system began here.

Indian Council Act of 1892

Introduction:

This Act was introduced after 31 years of the first legislation and during these 31 years there were certain administrative changes, certain laws were brought in but the formal changes were made in 1892.

Features:

Now let’s take up the changes that were taking up in this Act of 1892

• The first significant change was that the size of Legislative Council increased.

• In Central Legislative Council the membership was increased: 10 to 16 members. Which mean little bit more people were inducted to the council

• At Provincial level representation was increased but the size varied from province to province. In Madras & Bombay 8 to 12, Bengal 12 to 20.

• So far as powers were concerned there was slight there was some improvement from 1861. Limited powers were given to the legislatures. Questions could be asked and raise issues but ultimate powers lied with the Viceroy or the Governor General.

• Here in this Act some element of elective principle was also introduced. Nominal elections through special interests were allowed which they had identified not the individuals but special interests and one example was chambers of commerce and the university senate which ultimately became the electoral college. So here in this Act you had a very limited introduction of the elective principle but a very selective and only certain special interests could benefit from that facility. Moreover the ultimate powers were kept with the GG or the Viceroy and the British govt. It is that body who would go with these councils with the exception of certain limited collective elements but generally the British govt could because of this law determine who would be sitting there. GG and the British government made these appointments.

Analysis

But if you compare this with the Act of 1861 definitely you would find an improvement, a slight and marginal improvement but nevertheless the principle of gradual development goes on from 1861 to 1892.

Government of India Act, 1909

(Minto-Morley Reforms)

This Act was the third important constitutional document. By the time the Indian Act of 1909 was enforced there had been significant changes in the political domain of India. Congress party had been set up in 1885 and with the beginning of the 20th century it began to make more and more demands from the British govt. In 1906 the Congress was talking about self govt in India and that finally became its demand. In 1906 the ML was also set up and in the same year ML had presented its political demand to the Viceroy. So by 1909 there were more political activities, there was ML and Congress and both were making demands on the British system. And it is against the backdrop of these demands that the British govt introduced this law. This Act is also described as the MINTO-MORLEY REFORMS. What were its major features?

This act was another step towards giving Indians more representation in the Government.

This act provided

The first step was that the Legislative Councils whether at the centre or in the provinces their size was expanded

Central: the strength of additional members was raised up to 60 which was a very reasonable strength at that time if you compare it with the Act of 1892 however, the British govt maintained official majority that is non-officials some of which were nominated and some were elected they were in a minority

Provincial: at the provincial level the size varied in different provinces.

Bombay, Madras, Bengal, UP: 50

And at the provincial level the British govt decided to give majority to Non-official. So, this was a significant change that at least at the provincial level if not at the centre the majority was Non-official, however,

All the Non-official members were not elected; some of them were there because the govt nominated them

Powers of the Councils were also increased. Now

Budget could be discussed but they could not really reject it altogether only discuss it. N addition to asking questions the Members were allowed to present Resolutions and issues of importance however, the resolutions passed by the councils whether at the central or the provincial level are never bindings, and that is the standard principle that only recommendations from legislation to the govt and it is up to the govt to implement or ignore those resolutions but the resolutions provide an opportunity which they did to Indians at that time after 1909 Act became effective, to raise issues of public importance, the issues which they thought the govt must take notice of, so they could raise issues either in the form of questions or in the form of resolutions. This was an opportunity to present their point of view but the British govt had enough powers to ignore what these people wanted at that time.

Another important feature of this Act was that the Executive Councils were formed for Bombay, Madras and Bengal and as well as the provinces which had Lt. Governors was provided for that these kinds of councils wee set up at the provincial level.

In this Act principle of election was expanded that is the electorate expanded, the people who could vote, their number increased but it was still limited. For example the members were elected by those who were the members of the university senate, District Boards, Municipal Committees, Zamindars, and Chambers of Commerce, these are few examples of those who could vote at that time and that is under the govt of India Act 1909 and definitely the electorate expanded under this Act.

The last but no significant feature of this Act was the principle of Separate Electorate for the Muslims. Separate Electorate implied that the Muslim representatives whether at the central or at the provincial level would be elected by only Muslim voters. This was the demand which the Muslim delegation presented to the Viceroy Lord Minto in 1906 at Simla what is often described as the Simla Deputation. At that time the viceroy agreed on the principle and agreed to look into the matter sympathetically. Three years later when this Act was enforced in 1909, the principle of Separate Electorate was incorporated in this Act and since 1909 to 1947 when the British rule came to an end the principle of Separate Electorate existed in India and subsequently it was shifted to some other communities in India which initially was a Muslim demand. So this principle of SE makes this Act a significant development for the Muslims.

Government of India Act, 1919

(Montagu-Chelmsford Reforms)

In order to understand this Act we will have to give a brief introduction of the developments during the last decade before this Act was enforced in India. Previous Act came in 1909 and this Act came in 1919. During these 10 years political activities in India intensified. In 1913 the ML adopted self govt as its principle and there were reasons that why the 3 major communities in India perturbed for one reason or the other. In 1914 First World War started and the British joined the War and by virtue of the British joining the war India was also involved in the war. In 1916 the ML and the Congress signed the Lucknow Pact for constitutional reforms. Luck Pact was a set of proposals which both parties wanted. The British govt considered while making the law that ultimately came in 1919. This war period was a period of some turmoil in India and in view of this kind of situation the British wanted to seek the cooperation of the Indians in its war efforts. The British wanted to secure the cooperation of the Indians.

For that purpose they made an announcement on August 20th 1917 and in this announcement the British govt talk about the gradual induction of Indians in all the branches of government. This was one of the demands which Indian leaders were making and here they were saying that gradually Indians would be inducted in all branches of government. Second part of this announcement was that gradually representative or responsible govt would be introduced in India. Another part of the announcement was that the Indians would also be inducted to the commissioned ranks of the army. It may be pointed out here that until that date, 1917 Indians could not hold the ranks in the Indian army. Commission ranks means all those ranks starting from 2nd. Lft to upward, what highest ranks they hold at that time was the Viceroy Commission ranks.

In the present day context of Pakistan Viceroy Commission Officers could be compare with the Non Commission Officers in the Pakistan army, so the Indians could not go beyond that but in 1917 on the insistence of the Indian leaders opened the commissioned ranks of the army for the Indians and that system was introduced in 1918. Since we are not discussing this so we will not pursue this point anymore.

Basically there were two changes in the Act of 1919, gradual involvement of Indians in all govt departments and sections and induction of Indians on the commission ranks in army. After that the important development was that the secretary of state for India whose name was Montague came on a visit to India in November 1917 and he spent several months in India talking to leaders on political and constitutional issues. On the bases of these deliberations a report was released on 1918 called as Montague-Chelmsford Report of 1918. And this report became the bases of the Indian Act of 1919. This Act was approved by the British parliament and signed by the king and by December 1919 this became the basic constitutional document for India.

Salient Features:

Let, s take up now some important features and attributes of this Act that is Govt of India Act 1919. The major provisions of this Act

This act provided a bicameral legislature at the Centre, which consisted of two houses. The Upper House and the Lower House

The Upper House was the Council of State with a membership of 60, out of which 34 were to be elected which means that the elected members were to have majority and 26 nominated official & nonofficial members. The Council’s tenure was fixed at 5 years.

The Lower House was Legislative Assembly which consisted of 145 members, out of whom 105 were elected and the rest would be nominated. So even here we see that the elected members dominate the lower house

Direct elections were introduced with limited franchise on the basis of property, tax paying, previous experience of legislative councils, university senate, district councils, etc. It was not Universal adult franchise, there were certain conditions described on the bases of which people could have right to vote. In other words those who fulfill those qualifications were entitled to elect the members to the legislature

Another feature was what was the continuation of the previous Act that is the principle of Separate Electorate for minorities. Muslims electing their own representatives to the central as well as to the provincial legislature.

If, we look at the powers of the assembly these were limited in scope. Nevertheless, slightly more than in the past. Limited law making powers were assigned to the Legislature but for certain categories prior permission was required. It had no control over defense, foreign policy, budget etc. Legislature could refuse grants but GG could restore them. Most of the budget was not under their control, same was the case with the defense and foreign policy, although they could discuss all those things but they could not really reject it, if they reject a particular grant the GG could approve of it or sanction it even it has been turned down.

They could ask Questions, move Resolutions, and another important thing was Adjournment Motions were allowed for this assembly. In a way this assembly when it came into existence in 1921 and elections were held from time to time was a lively assembly which dealt with different issues and different kinds of problems.

When we move on to the provincial assembly we find that assemblies were of different sizes and like the federal assembly their powers were limited

G.G. remained a powerful office with all the executive, legislative powers with a nominated Executive Council. In other words GG had the wide ranging powers at the central level and at the provincial level more or less similar powers were enjoyed by the Governor within his own province. So the Executive and the GG were very powerful.

So far as the division of powers is concerned this Act provided for a central list and a provincial list, two lists of subjects were given in the act, one was Central and the other was Provincial. Centre had overriding powers.

Diarchy System in the Provinces:

The act introduced DIARCHY system in the provinces which was the most significant feature of this Act. Principle of Diarchy meant that you distribute powers at the provincial level; certain important departments were given to members who were responsible to the GG and in this case the Governor. They were not answerable to the assembly in the provinces. According to the new arrangement subjects were divided into two categories i.e., reserved subjects and Transferred subjects. Reserved Subjects certain members performing the function but answerable to the Governor Reserved subjects included judiciary, canal, land revenue, Finance, press, power, etc.

Transferred Subjects were given to ministers who were answerable to the provincial legislature. So in this way the powers at the provincial level were distributed. Transferred subjects included Local govt. education, public health. Transferred subjects were less important subjects given to others. In case of a dispute, if something belonged to reserved or transferred side, the Governor was entitled to make the final decision.

Limited Responsible Government at the provincial level was introduced. The system of Diarchy was complicated.

The continuous tussle between the elected and nominated members created fear of breakdown of administration. GG had Control on key departments. Elective elements became strong in the legislatures.

This division was creating lot of problems but the British didn’t want to give so many powers to Indians, therefore they adopted this principle of Diarchy.

Government of India Act, 1935

It was the most important and most comprehensive legislation introduced by the British Government in India. It was the most significant document in India. It was gradually formulated starting with the Simon Commission, Round Table Conferences, White paper (1933) and J.S.C. it was a lengthy document passed by the parliament in July 1935 and got Royal assent in August 1935.

Salient Features

This Act introduced the system of federalism for the first time, although its seeds could be found in the govt of India Act of 1919 but here a federation was established with provinces and the princely states. It provided a Federal System with a centre, 11 Governor Provinces, 6 Chief Commissioner Provinces and the states willing to join it.

Powers were distributed into three lists of subjects which were given with a powerful centre. Federal list had Defense, Postal services, External affairs, Coinage and Communication. Federal list had the more powers. Provincial list included education, police, Local self-government, justice, agriculture, public service, fisheries and forests. The concurrent list included criminal law, civil marriage, divorce, registration, bankruptcy, factories and succession.

Two houses of Central Legislature:

Council of State comprised of 260 members, out of which 156 were from British provinces and 104 from Indian States.

Method of election was indirect. Communal representation was also secured.

ii. Federal Assembly was lower house consisted of 375 members. Out of which 250 represented British provinces and 125 from Indian States.

They were elected by provincial legislatures on the principle of separate electorate.

States were to nominate their members.

Limited Powers were given to legislature:

80 percent of budget was above their vote.

They could do law making for two lists but GG could turn down or refuse the bill keeping it for consideration of the British Government.

This constitution provided a Powerful GG: Executive Chief having powers of

Act on advice

Independent Judgment

Discretion

Emergency powers

Ordinances

Power to rule provinces directly

Provincial Governments:

Governors enjoy the powers like the GG in the Centre.

Diarchy abolished in provinces.

Responsible government was formed.

Provincial legislatures not unicameral. Act provided for bicameral legislatures in six provinces and unicameral in five provinces.

Franchise extended but still restricted on the basis of land revenue Rs. 5, Non-transferable property of Rs. 60, Education: Primary.

11. Federal Court and High Courts were formed under the act.

12. Burma was separated from India.

13. Sind was separated from Bombay.

Comments:

Federal part of the act was not introduced.

Provincial part introduced in 1937.

Provincial autonomy was provided.

Elected governments were formed in provinces

A strong centre was maintained.

This act expanded electorate.

Indian government under this act had no control over defense.

Indian legislature could not amend it.

Federal legislature elected indirectly

GG was given overriding powers, some powers in his discretion, some powers on his individual judgment and some powers on the advice. Similarly, in the provinces where principle of autonomy was introduced Governors have some special powers. The system of provincial autonomy was introduced which was the most important feature. This Act was introduced only at the provincial level, the central part was not introduced and in 1937 provincial part as provincial autonomy was introduced and it became operative from 1937 and lasted till 1947.