CONSTITUTIONAL LAW - 1

BY GEET MEHRA
HISTORICAL
PERSPECTIVE
REGULATING ACT, 1733
● First step taken by the british government to control and regulate the affairs of the East India
Company.
● It recognised first time the political and administrative functions of the company.
● Laid foundation of the central administration in India.
● Created the office of governor general of Bengal, Warren Hasting becomes first governor
general. With a 4 member Executive council to assist him.
● The Supreme Court was established at Fort William (Calcutta) as the Apex Court in 1774.
● Made governors of Madras and Bombay subordinates to Bengal.
● It prohibited servants of the company from engaging in any private trade or accepting bribes from
the natives.
PITT’S INDIA ACT, 1784
● Distinguished between commercial and political functions of the company.

● Court of Directors for Commercial functions and Board of Control for political affairs.

● Reduced the strength of the Governor General’s council to three members.

● Placed the Indian affairs under the direct control of the British Government.

● The company’s territories in India were called “the British possession of India”.

● Governor’s councils were established in Madras and Bombay.

CHARTER ACT OF 1813
● Removed trade monopoly of the East India Company.
● Asserted sovereignty of the british crown over the company’s territories in
India.
● Spread of western education and allowed christian missionaries.
CHARTER ACT OF 1833
● Made governor general of Bengal as Governor General of India and vested with
him all civil and military powers. William Bentick was the first governor general of
India.
● Exclusive legislative powers to governor general. The beginning of a Central
legislature for India as the act also took away legislative powers of Bombay and
Madras provinces
● Provided that the company’s territory is held by it “in trust of his majesty”
● The Act ended the activities of the East India Company as a commercial body and it
became a purely administrative body.
CHARTER ACT OF 1853
● Separation of executive and legislative functions of the Governor-general
Council.
● Created a new 6 member legislative council, functioned as a mini-parliament.
6 members in the Central Legislative Council. Four out of six members were
appointed by the provisional governments of Madras, Bombay, Bengal, and
Agra.
● Introduced a system of open civil services exam.
● Introduced for the first time local representation as out of 6 4 members of the
legislative councils are to be elected by provincial governments of madras,
bombay and bengal.
GOVERNMENT OF INDIA ACT, 1858
● Enacted in the wake of revolt of 1857 (sepoy mutiny).
● India to be governed directly by british crown, office of Governor-general becomes
Viceroy.
● Lord Canning was the first Viceroy of India.
● Abolished Board of Control and Court of Directors.
● A new office of Secretary of State for India was appointed, vested with complete
authority and control of Indian administration. He was accountable to british
parliament.
● Appointed 15 member council to assist Secretary of State for India.
INDIAN COUNCILS ACT 1861
● For legislative purposes, the Governor-General’s Council was enlarged. additional members (nominated by the

Governor-General).

● Viceroy will nominate some Indians as non-official members into his expanded legislative council. 3 members

were included i.e Raja of Benaras, Maharaja of Patiala and Dinkar Rao.

● Initiated the process of decentralization by restoring legislative powers with provinces.

● Recognised the “portfolio system” introduced by Lord Canning.

● Empowered the viceroy to issue ordinances, validity 6 months.

● No discussion on Financial matters allowed to Indians.

● were unable to talk about executive authority. The bill’s final passing required the permission of the Viceroy. The

Secretary of State has the power to reject legislation, even if the Viceroy has authorised it.
INDIAN COUNCILS ACT 1892
● In 1885 Indian National Congress was founded.
● Provided for nomination of some non-official Indian members appointed by viceroy in his
legislative council and also in provincial legislative councils. The principle of representation was
initiated through this act. The district boards, universities, municipalities, chambers of commerce and
zamindars were authorised to recommend members to the provincial councils.
● An element of indirect election was accepted in the selection of some of the non-official members.
The word election was not used.
● The members of the legislature were allowed to express views on Budget and on public importance
matters with 6 days prior notice.
● Increased the additional (non-official) majority in central and provincial legislative council.
INDIAN COUNCILS ACT, 1909 (Morley-Minto Reforms)
● The division of Bengal was also carried out by Lord Curzon in 1905. As a result, there was a huge revolt in
Bengal. Following this, the Britishers realised that some improvements in the Indian government were
mandatory to tackle the situation.
● Introduced separate electorates for Muslims.
● The Central Legislative Council was expanded from 16 to 60 members.
● Provincial legislative councils were also expanded.
● First attempt to bring representation in government. Non-official (nominated and Indirectly elected)
members were included although majority was still with the official members.
● Indians in the executive councils for the first time both at central and provincial level.
● The elected members were elected indirectly. The local bodies elected an electoral college that would
elect members of the provincial legislative councils. These members would, in turn, elect the members of
the Central legislative council.
● The elected members were from the local bodies, the chambers of commerce, landlords, universities,
traders’ communities and Muslims.
INDIAN COUNCILS ACT, 1909 (Morley-Minto Reforms)

● The legislative councils at the Centre and the provinces were to have four categories of
members as follows:
○ Ex officio members: Governor-General and members of the executive council.
○ Nominated official members: Government officials who were nominated by the
Governor-General.
○ Nominated non-official members: nominated by the Governor-General but were not
government officials.
○ Elected members: elected by different categories of Indians.
GOVERNMENT OF INDIA ACT, 1919 (Montagu-Chelmsford reforms of 1919)
● The sole purpose of this Act was to ensure Indians of their representation in the Government.
● The Act introduced reforms at the Central as well as Provincial levels of Government.
● Increased the Communal electorates to other communities such as Christians, Sikhs etc.
● There had to be the Executive Council of the Viceroy of eight members, out of which three were to be
Indians.
● Bicameral Legislature: The Act introduced bicameral legislature; the Lower House or Central Legislative
Assembly and the Upper House or Council of State.
● The legislators, under the new reforms, could now ask questions and supplementaries, pass adjournment
motions and vote a part of the budget, but 75% of the budget was still not votable.
● The legislature had virtually no control over the Governor-General and his Executive Council.
● It was necessary to get the permission of the Viceroy to introduce a bill, such as amendment of existing
law or amendment of ordinance of Governor General, foreign relations and relations with Indian states,
armed forces.
GOVERNMENT OF INDIA ACT, 1919
● The legislature of India could not change or reverse any law passed by the British Parliament in
relation to India.
● Introduced Dyarchy, The principle of dyarchy was a division of the executive branch of each
provincial government into authoritarian and popularly responsible government. The first was
composed of executive councillors, headed by the governor of that province. The second was
composed of ministers who were chosen by the governor from the elected members of the provincial
legislature. These latter ministers were Indians.
● Subjects were divided into two lists: ‘reserved’ and ‘transferred’. The reserved list, under which the
subjects were to be administered by the governor through his executive council of bureaucrats. The
transferred subjects were to be administered by ministers nominated from among the elected
members of the legislative council.
● The governor was in charge of the reserved list along with his executive councillors. The subjects under
this list were law and order, irrigation, finance, land revenue, etc.
● The ministers were in charge of subjects under the transferred list. The subjects included were
education, local government, health, excise, industry, public works, religious endowments, etc.
Simon Commission 1927
The Simon Commission (Indian Statutory Commission), formed by the British in 1927 to review the Government
of India Act 1919, sparked widespread protests due to its all-British composition. Arriving in India in 1928, it was
met with protests, including the iconic "Simon Go Back" demonstrations. The commission aimed to evaluate the
Act, recommend reforms and address communal representation and law and order.

However, its lack of Indian representation led to its boycott, driving nationalist sentiment. The protests influenced
key developments like the Nehru Report, and intensified demands for Indian self-governance, fostering new
leaders and strengthening the independence movement.

What was the Simon Commission?

The Simon Commission, officially known as the Indian Statutory Commission, was established by the British
government in 1927 to review the Government of India Act 1919 and recommend constitutional reforms. The
commission was chaired by Sir John Simon and included Seven British members, sparking controversy and
anger in India due to the lack of Indian representation.
Simon Commission Purpose
The objective of the Simon Commission was to evaluate the Government of India Act 1919, recommend
constitutional reforms, address communal representation, and assess law and order amidst rising
nationalist movements.

● Evaluate the Government of India Act 1919: The commission aimed to assess the functioning of
the diarchy, where certain provincial responsibilities were divided between Indian ministers and
British officials.
● Recommend Constitutional Reforms: It sought to propose constitutional changes that could
address governance issues and Indian demands while maintaining British control.
● Address Communal Representation: The commission aimed to evaluate and propose solutions
for communal representation, a contentious issue in British India.
● Assess Law and Order: The commission was tasked with reviewing the law and order situation in
light of growing nationalist movements.
Simon Commission Impact
The Simon Commission significantly impacted India's independence movement, leading to the Nehru Report
advocating dominion status and secular democracy, influencing the Government of India Act 1935, uniting the
opposition, fostering new leaders, and intensifying demands for self-governance.

● Nehru Report: The Nehru Report (1928), formulated in response to the Simon Commission, proposed a
new constitutional framework emphasising self-governance and democratic principles.
○ The report called for dominion status within the British Commonwealth, marking a shift in political
demands.
○ It advocated for a secular and democratic framework, rejecting communal representation.
● Influence on Future Reforms: The Simon Commission's impact extended to future constitutional reforms,
including the Government of India Act 1935.
○ Provincial Autonomy: The act of 1935 abolished diarchy, introduced provincial autonomy, and
instituted bicameralism in six of the eleven provinces, granting more powers to Indian ministers and
legislatures.
○ Criticism: Despite reforms, the act was criticised for not granting full self-governance, leading to
continued demands for independence.
Simon Commission Recommendations
The Simon Commission submitted its report in May 1930, proposing significant reforms.

● At the provincial level, it recommended the abolition of dyarchy and establishment of

responsible Government , with certain discretion retained by the governor in relation to internal
security and other matters.
● At the central level, parliamentary responsibility was rejected, and the governor-general was
granted powers to appoint cabinet members.
● The Simon Commission acknowledged the concept of federalism but deferred its
implementation for the foreseeable future. Instead, it recommended the establishment of a
Consultative Council of Greater India, comprising representatives from both British provinces
and princely states.
● It advocated for the separation of Sindh from Bombay and Burma from India.
● It also granted reserved seats to the depressed classes. However, it stipulated that
candidates from these reserved seats must have their competence endorsed by the governor of
the province before participating in elections
● Continuation of the communal electorate
Communal Awards
Introduction

British Prime Minister Ramsay MacDonald initially coined the communal award on August 16, 1932. Born as the result of the 2nd
round-table conference, the other name of the communal award is the MacDonald Award. In simple terms, the communal award is a
set of elections awarded to the less privileged or the oppressed classes. A separate electorate was accepted by the Indian Councils Act
1909 for Muslims, followed by Sikhs, Indian Christians, Anglo-Indians, and Europeans as per the Government of India Act 1919.
Historical background of the communal award

During the late 19th and early 20th centuries, the awareness among the oppressed sections of society increased. They began to raise their voices
against the violation of rights and social equality in the country. The British government initiated the constitutional reforms under pressure from the
Indian national movement to accommodate Indians in multiple representative bodies. When the separate electorate was formed for Muslims under the
Morley – Minto Reforms Act of 1909, leaders of the less privileged sections decided to raise their voices and demand seat reservations.

After many revolts, the depressed class forced the British government to get an invitation for their representative to the round table conference in
London. However, the Congress party and Gandhi both were not on the same page as they were not satisfied with the idea of demanding a separate
electorate. During this time, BR Ambedkar evolved as a strong supporter for the rights of the deprived sections and attacked Congress for not
addressing their issues.

Key provisions of the communal award

Here are the key provisions of the communal award:

● Doubling the seats in the provincial legislatures.

● Keeping the separate electorate system, especially for minorities.
● Providing considerable weightage to the Muslims.
● Reserving 3% of the total seats for women.
● Recognising the less privileged classes and entitling them to the right of the separate electorate.
● Allocating seats to landlords, labourers, industrialists, and traders.
Objectives of the communal award

For more than twenty years, the communal award allowed the oppressed sections of the society to grant votes alongside the Hindus in the general
constituencies. When the communal award was introduced, it was a clear sign of boarding the distance between the Hindu caste and depressed class.

Facts about freedom struggle in India

Here are some facts about the freedom struggle in India:

● When Gandhi heard of the communal award, which provided a separate electorate for the downtrodden sections, he reacted strongly against it.
He believed that the oppressed section was a vital part of the Hindu community.
● He believed that the Hindus favoured the deprived class and would do complete justice with those they had exploited for years.
● BR Ambedkar took a strong stand favouring the communal award and attacked Congress for not addressing their issues.
● Gandhi then decided to fast at the Yerwada Jail.
● To save the life of Gandhi, Poona Pact started on September 24, 1932.
● Once the pact was signed, Gandhi ended his fast.
Explain the Poona Pact

It was an act between Hindu leaders to secure the interest of the Dalits. A large group of Hindus raised their voice to secure their rights. This agreement is also a result of
the communal award of August 16, 1932. During the early 20th century, the Indian political system went through turmoil regarding different communal interests. After a
series of negotiations and counselling, the British government agreed on a proposal offered by the Hindu leaders.

In this proposal, the Hindu depressed classes or scheduled caste demanded seats in legislation. Dalit leader Bhimrao Ramji Ambedkar supported this proposal. He fought
against the inequality posed upon the Dalits community. However, many national leaders like Mahatma Gandhi proposed a different plan. They proposed to have reserved
seats in the central and provincial assembly for the oppressed classes.

By 1930, Ambedkar had emerged as a leader of national stature for the welfare of the downtrodden sections of the society and represented them in the first round table
session. Consequently, the proposal was finally reached as a vital factor in the Indian political map. Gandhi and Ambedkar finalised the Poona Pact. It reserved 71 seats
in the central legislature for the marginalised sections of society and gave away the Communal Award of having separate electorates.

Conclusion

In simple terms, the communal award is a set of elections awarded to the less privileged or the downtrodden sections of society. During the late 19th and early 20th
centuries, the awareness among the depressed section of society started to increase. They raised their voices against the violation of rights and social equality in the
country.
GOVERNMENT OF INDIA ACT, 1935
● The Act played a key role in the drafting of the Constitution of India, 1950. A significant chunk of the
Constitution, particularly the administrative provisions, are borrowed from the Act.
● Provincial Autonomy: The creation of a ‘Federation of India’ that consisted of two levels: a central
executive and parliament, and below it provincial government. It divided the powers between the
centre list and the provincial list. Also created concurrent list.
● It discarded the ‘dyarchy’ system at the provincial level and allowed for the emergence of popularly
elected provincial legislatures. Dyarchy was introduced at the central level, key subjects like defence
and foreign affairs were under the direct control of the Governor General.
● A federal court was established in Delhi.
● The franchise was expanded to 10% of the population from 3%.
● Separate electorates were provided for Muslims, Sikhs and others, but not to Depressed Classes.
● Provided for establishment of Reserve Bank of India.
August offer 1940
● During the Second World War, the Indian National Congress (INC) leaders were upset with the
British government for having pulled India into a war without the consent of Indians.
● INC said that support for the war would be provided if power was transferred to an interim
government in India.
● Then, the Viceroy Linlithgow made a set of proposals called the ‘August offer’. For the first time,
the right of Indians to frame their own constitution was acknowledged.
● A representative Indian body would be formed after the war to frame a constitution for India.
● Dominion status was the objective for India. No clear date for independence given.
● The Viceroy’s Executive Council would be expanded right away to include for the first time more
Indians. However, defence, finance and home portfolios were to remain with the British.
● The INC rejected this offer at its meeting at Wardha in August 1940. It demanded complete
freedom from colonial rule. Jawaharlal Nehru remarked that the dominion status concept was as
dead as a doornail. Muslim league also rejected as they wanted partition.
Cripps Mission 1942
● There would be the formation of an Indian union with Dominion status.
● That Indian union would be free to choose its relations with the Commonwealth and
international organizations such as the United Nations.
● The Indian defence sector was to be under British control.
● The governor general's powers were preserved.
● A constituent assembly will be formed to draft a new constitution after the war, and it was
to be partly elected by provincial assemblies and partly nominated by the Princes.
● Any province unwilling to join the Union could have its own constitution and form its own
Union.
● The creation of the constitution was to be solely in Indian hands (rather than 'primarily'
in Indian hands, as stated in the August Offer).
● The constituent assembly was given a concrete plan.
● Any province could have a separate constitution—a blueprint for India's partition.
Reasons for failure
● Offer of dominion statu, instead of a provision for complete
independence.
● Representation of princely states by nomination and not by elected
representatives.
● Right of the provinces to secede as went against the principle of national
unity.
Cabinet Mission Plan
● Rejected the idea of two separate constituent Assemblies for India and
Pakistan. Instead suggested a federal structure with various provinces
divided into three groups under a common centre.
● Muslim league Initially accepted it. Later elections happened in 1946 for
constituent assembly to draft a new constitution for India.

● Later Muslim league withdrew their consent and boycotted Constituent

Assembly.
● Direct Action day in 1946 by Muslim League for demand of a seperate
nation.
Indian Independence Act, 1947
● The Act declared India as a sovereign and independent state.

● It also made provisions for the partition of the Indian state into two separate dominions of India and Pakistan

on grounds of religious differences.

● The position of the Secretary of States for India was abolished.

● The office of the Viceroy was also abolished and the Act initiated for the providence of two separate

Governor-Generals to be appointed for the dominions of India and Pakistan.

● The Constituent Assemblies of both the dominions were authorised to formulate their respective

constitutions and also to repeal any law of the British Parliament formulated for the Indian state, including

the Independence Act itself.

● The Constituent Assemblies were empowered to act as legislative bodies for their respective dominions till

the time they could formulate a constitution for their state.

● It granted authority to the princely states to join either of the dominions or remain independent.