Historical Underpinnings — Constitutional Development from 1773 to 1950

Cross-paper relevance

• GS2 — Core: where the present Constitution's institutions came from, and why so much of the 1935 Act survives inside it
• GS1 — Modern history: the constitutional strand of the freedom struggle, from the Ilbert Bill agitation to the Round Table Conferences
• Essay — Recurring themes: "Continuity and change in Indian governance"; "The colonial inheritance of the Indian state"

A polity syllabus that starts in 1946 cannot explain why the Constitution looks the way it does. The parliamentary form, the office of Governor, the federal division of lists, the emergency provisions, even the drafting style all arrived through a chain of British statutes running back to 1773, and the Constituent Assembly worked on that inheritance rather than on a blank page.

This chapter follows that chain. Two things are worth saying at the outset, because both cut against the way the story is usually told.

The institutions grew here, they were not simply imported. President Pranab Mukherjee put it this way in 2017: these institutions "attained organic growth on the Indian soil because India was home to republican forms of government, deliberative representative bodies and self-governing institutions in many parts of country from as early as the Vedic age". The Rigveda and Atharvaveda mention the Sabha and the Samiti, and village bodies such as Gram Sabhas and Panchayats continued through the medieval and Mughal periods until British rule.

And the earliest legislative authority predates 1773. The Charter of 1601 authorised the Governor and the East India Company "to make, ordain and constitute such and so many laws, constitutions, orders and ordinances" as seemed necessary for good government. The Charter of 1726 vested the Governors and Councils of the three Presidencies with legislative power for the first time.

Part one: the Company under Parliament, 1773 to 1858

The Regulating Act, 1773

The first enactment by which the British Parliament regulated the Company's Indian affairs. Its significance is constitutional rather than administrative: it marks the beginning of parliamentary control over the government of the Company, and it started the process of territorial integration and administrative centralisation.

• The Governor of Bengal became the Governor-General of Bengal, assisted by a Council of four members. Warren Hastings was the first, with Clavering, Monson, Philip Francis and Barwell as councillors.
• The Governor-General could not overrule his Council's majority, but held a casting vote in a tie. He was to superintend and control the Presidencies of Madras and Bombay, which had to obey him except in an emergency.
• A Supreme Court at Calcutta, with a Chief Justice and three puisne judges.
• Directors were to be elected for a four-year term, one-fourth retiring each year.

Its defects were exposed almost immediately, which produced the Amending Act of 1781 and then Pitt's Act.

Pitt's India Act, 1784

The Act that created dual control. It set up a Board of Control over the Company's civil, military and revenue affairs, leaving commerce to the Court of Directors. For the civil service it laid down that vacancies in the Governor-General's Council were to be filled by covenanted civil servants, gave the Crown power to remove or recall any servant of the Company, and for the first time fixed age limits for appointment.

The Charter Acts, 1793 and 1813

The 1793 Act renewed the Company's charter for twenty years. The 1813 Act, passed amid pressure from English traders influenced by Adam Smith's laissez-faire arguments and from missionaries, ended the Company's monopoly of Indian trade while retaining its China and tea monopoly.

The Charter Act, 1833: the centralising Act

This is the most important of the four for constitutional purposes.

• It ended the Company's trading rights and made it an administrative agency of the Crown.
• The Governor-General of Bengal became the Governor-General of India, with authority over the whole of British India. His government was for the first time called the Government of India and his Council the Indian Council.
• A fourth member, the Law Member, was added to the Council, without a vote. Macaulay was the first, and did the work of codifying Indian law. A quorum of three was fixed for legislative business and two for administrative business.
• It set up one legislative council for all British territories in India, and separated the Council's law-making meetings from its executive meetings. This is the beginning of a legislature distinct from the executive.
• Financial centralisation followed: the Presidencies lost their powers of taxation and expenditure without the Centre's prior sanction.

The Charter Act, 1853: the Council starts behaving like a Parliament

• Discussion in the Council, sitting in its legislative capacity, became oral instead of written. Bills went through three readings and were referred to Select Committees. Business was conducted in public rather than in secret, and proceedings were officially published. Standing orders were adopted.
• The legislature was for the first time given the right to frame its own rules and procedure. Prasanna Kumar Tagore was appointed Clerk of the Council and gave it a parliamentary form of procedure. The public were admitted, and press reporting was permitted in 1856.
• The Council in its legislative capacity was to have twelve members, including four representatives from the provinces, the Chief Justice and a puisne Judge.
• The Directors' patronage was abolished: future vacancies were to be filled by competitive examination, and a committee under Lord Macaulay was appointed in 1854 for the purpose.
• It fixed no term for the Company's rule, so the Crown could take over at any time.

Its central defect: no Indian was associated with the Legislative Council, and the examinations were held in England at a low age limit, which made competing from India very difficult.

Part two: the Crown, 1858 to 1919

The Queen's Proclamation and the Government of India Act, 1858

Administration passed to the British Crown. Lord Canning, the Governor-General, was designated Viceroy and the Crown's representative. The Proclamation promised non-interference in religion, respect for treaties with the native rulers, permission for rulers to adopt heirs, and, importantly for what came later, equal opportunity in government employment irrespective of race, caste or religion.

For representative government, the 1858 Act did one thing that mattered: it initiated non-official participation in the Council. The Governor-General was authorised to nominate "not less than six nor more than twelve" additional members, at least half of them non-officials.

Indians entered in 1862. Viceroy Lord Canning appointed three: Maharaja Sir Narendra Singh of Patiala, Raja Deo Narain Singh of Benares and Raja Sir Dinkar Rao Raghunath of Gwalior. Between 1862 and 1892, forty-five Indians were nominated, mostly ruling princes and large zamindars.

The Indian Councils Act, 1861

Built on Lord Canning's proposals in the Despatch of January 1861, carried by Sir Charles Wood.

• Lord Canning introduced the portfolio system: individual members of the Executive Council were given charge of departments and dealt with matters on their own initiative. This is the ancestor of the modern ministry.
• The Governor-General was empowered to make Ordinances in an emergency, valid as law for six months.
• For legislation the Council was expanded by six to twelve nominated additional members holding office for two years, at least half non-official.
• The Governor-General could create legislative councils in the North-Western Provinces and Punjab.

The Indian Councils Act, 1892

Three firsts sit here, and all three are examinable.

• The Legislative Council was enlarged to "not less than ten nor more than sixteen" additional members. Though the word "election" was scrupulously avoided, non-official members of the Provincial Councils and the Calcutta Chamber of Commerce recommended nominees, which amounted to implicit acceptance of indirect election.
• The right to discuss the budget was conceded for the first time, though members still could not move resolutions or divide the Council on financial matters.
• The right to ask questions was granted. The first question was asked on 16 February 1893, by the Maharaja of Bhinga, on hardships caused by collecting supplies for touring government officers.

Note the budget's own history. The annual budget was introduced in India in 1860 by James Wilson, sent from the British Parliament as Finance Member, and the first budget was presented on 18 February 1860. Discussion was not then allowed and the Council had no right to vote on it.

The Indian Councils Act, 1909: the Morley-Minto reforms

• The Indian Legislative Council grew from 16 to 60 members. Elected members were returned by constituencies such as municipalities, local boards, universities and chambers of commerce.
• Non-official majorities were created in the Provincial Councils, but the official majority was retained at the Centre.
• The Governor-General could nominate an Indian to the Executive Council, and Satyendra Prasanno Sinha became the first Indian member.
• Members could for the first time move resolutions on matters of general public interest and divide the Council on them. The first such resolution was moved on 25 February 1910 by Gopal Krishna Gokhale, recommending prohibition of indentured labour for Natal.
• Supplementary questions were allowed for the first time.
• And its lasting damage: the Act introduced communal representation and separate electorates.

Part three: towards responsible government, 1919 to 1947

The Government of India Act, 1919: the Montagu-Chelmsford reforms

• Dyarchy in eight major provinces, the Governors' Provinces: a transferred list given to Indian ministers answerable to the Provincial Council, and a reserved list retained under the Viceroy. Transferred subjects included agriculture, local government, health and education; reserved subjects included defence, foreign affairs and communications.
• A bicameral central legislature for the first time: a lower Legislative Assembly with a three-year term, and an upper Council of State with a five-year term.
• Classification of subjects as Central and Provincial, with devolution of provincial subjects and allocation of revenues to local governments. This is the ancestor of the Seventh Schedule.

A divergence worth knowing about. Two official sources give different sizes for the Legislative Assembly. The President's 2017 address gives 144 members, 104 elected and 40 nominated, with the Council of State at 34 elected and 26 nominated. The Rajya Sabha Secretariat gives the Council of State as 60 and the Legislative Assembly as 145. The two agree on the Council of State once 34 and 26 are added, and differ by one on the Assembly. Both figures are in official circulation; if a question turns on it, the safe answer is the Council of State at 60.

From the Simon Commission to the Act of 1935

The sequence is the answer to most questions on this period: Simon Commission and its recommendations, the Nehru Report, the three Round Table Conferences in London during 1930 to 1932, the White Paper of 1933, examination by a Joint Select Committee, and then the Act. The Joint Select Committee recommended bicameral legislatures in six provinces rather than three, indissoluble upper chambers, indirect elections to the Federal Assembly in place of direct, and further restrictions on the powers of the Federal Court.

The Government of India Act, 1935

Its two outstanding features were the proposed Federation of India, uniting the Governors' Provinces of British India with such princely states as acceded, and provincial autonomy.

The constitutional shift matters more than the machinery. Until the Round Table Conference of 1930 India was a completely unitary state, and whatever powers the provinces had were given to them by the Centre; the provinces were the Centre's agents. The principle of the 1919 Act had been decentralisation, not federation. Under the 1935 Act the provinces were for the first time recognised in law as separate entities, exercising executive and legislative powers in their own right and free of Central control in their field.

The federal part never came into operation. The composition of the central government therefore remained substantially what it had been under the 1919 Act, and for the decade before 1947 India ran on provincial autonomy under the 1935 Act with a Centre still working on 1919 provisions.

The Indian Independence Act, 1947

The Act declared the Constituent Assembly a fully sovereign body. The Central Legislative Assembly and the Council of State ceased to exist from 14 August 1947. At independence the Constituent Assembly took over as the legislature of independent India, and its two functions were separated: the Constituent Assembly (Legislative) began functioning on 17 November 1947.

What the present Constitution took from each

Firsts, at a glance

Confusion pairs

Prelims quick-fire facts

• Charter of 1726: legislative power to the Presidency Governors and Councils for the first time.
• Regulating Act, 1773: Warren Hastings, Council of four, Supreme Court at Calcutta, casting vote.
• Charter Act, 1833: Governor-General of India; Law Member without a vote; Macaulay the first.
• Charter Act, 1853: three readings, Select Committees, published proceedings, competitive examination; twelve legislative members.
• First budget: 18 February 1860, James Wilson. Press reporting of Council proceedings permitted 1856.
• First question: 16 February 1893, Maharaja of Bhinga. First resolution: 25 February 1910, Gokhale.
• 1909 introduced separate electorates; the Council grew from 16 to 60.
• 1919: dyarchy in the provinces, bicameral Centre, Central and Provincial subjects.
• 1935: provincial autonomy; the federal part never came into force.
• 1947: the Central Legislative Assembly and Council of State ceased on 14 August 1947; the Constituent Assembly (Legislative) began 17 November 1947.

Exam strategy

For Prelims, learn the chain as a sequence of powers acquired, not as a list of Acts. The Council got the budget in 1892, the question in 1892, the resolution in 1909, the supplementary question in 1909, ministers in 1919 and autonomy in 1935. Ordered that way, the Acts attach themselves to the powers.

For Mains, the useful argument is continuity. The Constituent Assembly did not invent Indian administration; it inherited it, and chose deliberately what to keep and what to break. It kept the parliamentary form, the ordinance power, the portfolio system, the federal lists and much of the 1935 Act's text. It broke, equally deliberately, with the two features that had defined colonial constitutionalism: an executive not answerable to Indians, and separate electorates, which Article 325 abolished in a single sentence. An answer that names both the inheritance and the rupture is doing more than reciting statutes.

Sources

• President's Secretariat, address by President Pranab Mukherjee delivering the first Bhairon Singh Shekhawat Memorial Lecture on "History of Parliamentary Democracy in India", 15 May 2017, Press Information Bureau Release ID 161805. Used for the 1601 and 1726 Charters, the legislative-procedure changes of 1853, the 1858 and 1862 nominations, the budget and question firsts, the 1909 and 1919 provisions, and the 1935 shift from decentralisation to federation. pib.gov.in
• Tamil Nadu Open University, Constitutional History of India (From 1773 to 1950 A.D.), Course MHYS-14, M.A. History Semester I, first edition June 2021, ISBN 97-893-5706-344-9. Course writer Dr R. Jaganath; content editor Dr N. Dhanalakshmi. Used for the provisions of the Regulating Act, Pitt's India Act, the Charter Acts of 1813, 1833 and 1853, the Queen's Proclamation, the Indian Councils Act 1861, and the Round Table Conference to White Paper sequence behind the 1935 Act. Units 1 to 18. A printed course volume has no stable public link and is therefore cited in full rather than linked.
• Rajya Sabha Secretariat, on the pre-1947 central legislature under the Acts of 1919 and 1935. cms.rajyasabha.nic.in

On sourcing. The Acts themselves are the ideal source, but the UK statute book and India Code both refuse access from outside their permitted regions, and the Parliament eLibrary holds only page scans whose catalogue entries carry typographical errors. Where the two sources above differ, as they do on the size of the 1919 Legislative Assembly, this page prints both figures and names the source of each rather than choosing silently.