Indian Polity: Constitutional Framework- Laws from the Crown Rule (1858–1947)

Laws from the Crown Rule (1858–1947)

The Government of India Act, 1858

 The Government of India Act, 1858 was an Act of the Parliament of the United Kingdom, passed on August 2, 1858.

Its provisions called for the liquidation of the British East India Company (who had up to this point been ruling British India under the auspices of Parliament) and the transference of its functions to the British Crown.

Lord Palmerston, then-Prime Minister of the United Kingdom, introduced a bill for the transfer of control of the Government of India from the East India Company to the Crown, referring to the grave defects in the existing system of the government of India.

Provisions of the Act:

1. The Company’s territories in India were to be vested in the Queen, the Company ceasing to exercise its power and control over these territories. India was to be governed in the Queen’s name.
2. The Queen’s Principal Secretary of State received the powers and duties of the Company’s Court of Directors. A council of fifteen members was appointed to assist the Secretary of State for India. The council became an advisory body in India affairs. For all the communications between Britain and India, the Secretary of State became the real channel.
3. The Secretary of State for India was empowered to send some secret dispatches to India directly without consulting the Council. He was also authorized to constitute special committees of his Council.
4. The Crown was empowered to appoint a Governor-General and the Governors of the Presidencies.
5. Provision for the creation of an Indian Civil Service under the control of the Secretary of State.
6. All the property of the East India Company was transferred to the Crown. The Crown also assumed the responsibilities of the Company as they related to treaties, contracts, and so forth.

India’s Council Act of 1861

 This Act undone the effect of the 1833 Act. It restored the power of legislation to the Governments of Madras and Bombay.

Also it made notable changes in the composition of the Governor General’s council for executive & legislative purposes.

Provisions of the Act

1. The Council of the Governor General was expanded and a fifth ordinary member was added. Now it included total 7 members (other two members being the Governor General and the commander in Chief).
2. For the legislative purposes, not less than 6 and not more than 12 members were additionally to be nominated (comprising of both official and non-official members) by the Governor General and they were to hold the office for two years. Out of these, not less than half were required to be Non-Official.
3. The Portfolio system was started. Each member of the Council of the Governor General was allocated portfolio of a particular department.  Before the adoption of the portfolio system in the Government of India, the whole business of the Indian governmental business was carried out by the Governor-General-in Council (earlier name of Cabinet Secretariat), As the amount and complexity of business of the Government increased, the work of the various departments was distributed among the members of the Council: only the more important cases were dealt with by the Governor-General or the Council collectively.

Indian Council Act of 1892

 The Indian Councils Act 1892 was an Act of the Parliament of the United Kingdom that authorized an increase in the size of the various legislative councils in British India.

Enacted due to the demand of the Indian National Congress to expand legislative council, the number of non-official members was increased both in central and provincial legislative councils.

The non official members of the Indian legislative councils were henceforth to be nominated by the Bengal chamber of commerce and provincial legislative council.

Provisions of the Act:

1. The universities, district board, municipalities,zamindars and chambers of commerce were empowered to recommend members to provincial councils. Thus was introduced the principle of representation.
2. It also relaxed restrictions imposed by the Indian Councils Act 1861, thus allowing the councils to discuss each year’s annual financial statement. The Councils could also put questions within certain limits to the government on the matter of public interest after giving six days’ notice, but none of them was given right to ask supplementary questions. Thus it prepared the base of Indian democracy.
3. The act also increased the number of non officials in councils to between 10 and 16, but provincial representation was abolished. The law member was made a permanent member.

 Indian Council Act of 1909

 The Indian Councils Act 1909, commonly known as the Morley-Minto Reforms, was an Act of the Parliament of the United Kingdom that brought about a limited increase in the involvement of Indians in the governance of British India.

In 1906, Morley announced in the British parliament that his government wanted to introduce new reforms for India, in which the locals were to be given more powers in legislative affairs.

With this, a series of correspondences started between him and Lord Minto, the then Governor General of India.

A committee was appointed by the Government of India to propose a scheme of reforms. The committee submitted its report, and after the approval of Lord Minto and Lord Morley, the Act of 1909 was passed by the British Parliament.

Provisions of the Act:

1. The member of the Legislative Councils, both at the Center and in the provinces, were to be of four categories i.e. ex officio members (Governor General and the members of their Executive Councils), nominated official members (those nominated by the Governor General and were government officials), nominated non-official members (nominated by the Governor General but were not government officials) and elected members (elected by different categories of Indian people).
2. The maximum number of nominated and elected members of the Legislative Council at the Center was increased from 16 to 60. The number did not include ex-officio members.
3. The maximum number of nominated and elected members of the provincial legislative councils under a governor or lieutenant-governor was also increased. It was fixed as 50 in Bengal, Bombay, Madras, United Provinces, and Eastern Bengal and Assam, and 30 in Punjab, Burma, and any lieutenant-governor province created thereafter. Legislative councils were not created for provinces under a chief commissioner.
4. The right of separate electorate was given to the Muslims.
5. Official members were to form the majority but in provinces non-official members would be in majority.
6. The members of the Legislative Councils were permitted to discuss the budgets, suggest the amendments and even to vote on them; excluding those items that were included as non-vote items. They were also entitled to ask supplementary questions during the legislative proceedings.
7. The Secretary of State for India was empowered to increase the number of the Executive Councils of Madras and Bombay from two to four.
8. Two Indians were nominated to the Council of the Secretary of State for Indian Affairs.

Government of India Act, 1919

 The Government of India Act 1919 was an Act of the Parliament of the United Kingdom.

It was passed to expand the participation of Indians in the government of India.

The Act embodied the reforms recommended in the report of the Secretary of State for India, Edwin Montagu, and the Viceroy, Lord Chelmsford. The Act covered ten years, from 1919 to 1929.

Provisions of the Act:

1. The Act provided a dual form of government (a “diarchy”) for the major provinces. In each such province, control of some areas of government, the “transferred list”, were given to a Government of ministers answerable to the Provincial Council. The ‘transferred list’ included Agriculture, supervision of local government, Health and Education. The Provincial Councils were enlarged.
2. At the same time, all other areas of government (the ‘reserved list’) remained under the control of the Viceroy. The ‘reserved list’ included Defense (the military), Foreign Affairs, and Communications.
3. The Imperial Legislative Council was enlarged and reformed. It became a bicameral legislature for all India. The lower house was the Legislative Assembly of 144 members, of which 104 were elected and 40 were nominated and tenure of three years. The upper house was the Council of States consisting of 34 elected and 26 nominated members and tenure of five years.

Simon Commission

The Indian Statutory Commission was a group of seven British Members of Parliament of United Kingdom that had been dispatched to India in 1928 to study constitutional reform in Britain’s most important colonial dependency.

It was commonly referred to as the Simon Commission after its chairman, Sir John Simon. Its function was to report on India’s constitutional progress for introducing constitutional reforms as had been promised.

The Simon Commission published its 2-volume report in May 1930. It proposed the abolition of dyarchy and the establishment of representative government in the provinces. It also recommended that separate communal electorates be retained, but only until tensions between Hindus and Muslims had died down.

Before the publication of the report, the British government stated that Indian opinion would henceforth be taken into account, and that the natural outcome of the constitutional process would be dominion status for India.

The outcome of the Simon Commission was the Government of India Act 1935, which established representative government at the provincial level in India and is the basis of many parts of the Indian Constitution. In 1937 the first elections were held in the Provinces, resulting in Congress Governments being returned in almost all Provinces.

One of the Commission’s members was Clement Attlee, who subsequently became the British Prime Minister and eventually oversaw the granting of independence to India in 1947.

Communal Award

 The Communal Award was made by the British Prime Minister Ramsay MacDonald on 16 August 1932 granting separate electorates in India for the Lower Castes, Muslims, Buddhists, Sikhs, Indian Christians, Anglo-Indians, Europeans and Untouchables (now known as the Dalits) etc. The principle of weightage was also applied. The Untouchables were assigned a number of seats to be filled by election from special constituencies in which they could vote.

The reason behind introduction of this ‘Award’ was that Ramsay MacDonald considered himself as ‘a friend of the Indians’ and thus wanted to resolve the issues in India. The ‘Communal Award’ was announced after the failure of the Second of the Three Round Table Conferences (India).

The ‘award’ attracted severe criticism from Mahatma Gandhi.

The Government of India Act, 1935

 The Government of India Act 1935 was originally passed in August 1935, and is said to have been the longest (British) Act of Parliament ever enacted by that time.

Because of its length, the Act was retroactively split by the Government of India (Reprinting) Act 1935 into two separate Acts:

1. The Government of India Act 1935
2. The Government of Burma Act 1935

Provisions and Features of the Act:

1. The absence of a Preamble from the Government of India Act 1935 contrasts sharply with the 1919 Act, which set out the broad philosophy of that Act’s aims in relation to Indian political development.
2. The Act did not include a “bill of rights” within the new system that it aimed to establish. However, in the case of the proposed Federation of India there was a further complication in incorporating such a set of rights, as the new entity would have included nominally sovereign (and generally autocratic) princely states.
3. In 1947, a relatively few amendments in the Act made it the functioning interim constitutions of India and Pakistan.
4. The Act was not only extremely detailed, but it was riddled with ‘safeguards’ designed to enable the British Government to intervene whenever it saw the need in order to maintain British responsibilities and interests. To achieve this, in the face of a gradually increasing Indianization of the institutions of the Government of India, the Act concentrated the decision for the use and the actual administration of the safeguards in the hands of the British-appointed Viceroy and provincial governors who were subject to the control of the Secretary of State for India.
5. Under the Act, British citizens resident in the UK and British companies registered in the UK must be treated on the same basis as Indian citizens and Indian registered companies unless UK law denies reciprocal treatment.
6. There were very detailed provisions requiring the Viceroy to intervene if, in his unappealable view, any India law or regulation is intended to, or will in fact, discriminate against UK resident British subjects, British registered companies and, particularly, British shipping interests.

Indian Independence Act, 1947

The Indian Independence Act 1947 was as an Act of the Parliament of the United Kingdom that partitioned British India into the two new independent dominions of India and Pakistan.

The Act received the royal assent on 18 July 1947, and Pakistan came into being on August 14 and India on August 15, as two new countries.

The legislation was formulated by the government of Prime Minister Clement Attlee and the Governor General of India Lord Mountbatten, after representatives of the Indian National Congress, the Muslim League, and the Sikh community came to an agreement with the Viceroy of India, Lord Mountbatten of Burma, on what has come to be known as the 3 June Plan or Mountbatten Plan.

This plan was the last plan for Independence.

Provisions and Features of the Act:

Two new dominions: Two new dominions were to emerge from the Indian Union, Pakistan and India.

1. The Dominion of India may be regarded as an expression of the desire for self-government of the Hindus in India, and the Dominion of Pakistan as the expression of the demand for self-government by the Muslims.

Appointed Date: 15 August 1947 was declared as the appointed date for the partition.

Territories:

3. Pakistan: East Bengal, West Punjab, Sind, and Chief Commissioner’s Province of Baluchistan.
4. The fate of North West Frontier Province(now Pakhtunkhwa) was subject to the result of referendum.
5. Bengal & Assam:
6. The province of Bengal as constituted under the Government of India Act 1935 ceased to exist;
7. In lieu thereof two new provinces were to be constituted, to be known respectively as East Bengal and West Bengal.

• The fate of District Sylhet, in the province of Assam, was to be decided in a referendum.

1. Punjab:
2. The province as constituted under the Government of India Act 1935 ceased to exist;
3. Two new provinces were to be constituted, to be known respectively as West Punjab & East Punjab

• The boundaries of the new provinces were to be determined by, whether before or after the appointed date, by the award of a boundary commission to be appointed by the Governor General.

4. Constitution for the New Dominions: until the time of framing of new constitution, the new dominions and the provinces thereof were to be governed by the Government of India Act 1935. (Temporary Provisions as to the Government of Each New Dominion.)
5. The Governors General of the new dominions:
6. For each of the new dominion a new Governor-General was to be appointed by the Crown, subject to the law of the legislature of either of the new dominions.
7. Same person as Governor General of both dominions: if unless and until provision to the contrary was made by a law of the legislature of either of the new dominions, the same person could be the Governor General of both.

6. Powers of the Governor General: (Section-9)
7. The Governor General was empowered to bring this Act in force.
8. Division of territories, powers, duties, rights, assets, liabilities, etc., was the responsibility of Governor General
9. To adopt, amend, Government of India Act 1935, as the Governor-General may consider it necessary.
10. He had the power to introduce any change was until 31 March 1948, after that it was open to the constituent assembly to modify or adopt the same Act. (Temporary Provisions as to the Government of Each New Dominion.)
11. Governor-General had full powers to give assent to any law.

7. Legislation for the new dominions:
8. The existing legislative setup was allowed to continue as Constitution making body as well as a legislature. (Temporary Provisions as to the Government of Each New Dominion.)
9. The legislature of each dominion was given full powers to make laws for that dominion, including laws having extraterritorial operation.
10. No Act of Parliament of UK passed after the appointed date would be extended to the territories of new dominions.
11. No law and provision of any law made by the legislature of the new dominions shall be void or inoperative on the ground that it is repugnant to the law of England.
12. The Governor-General of each dominion had full powers to give assent in His Majesty’s name to any law of the legislature. [Configuration of Pakistan’s Constitution Assembly (CAP I): 69 members of the central legislature + 10 immigrant members= 79]

Consequences of setting up of the new dominions:

8. His Majesty’s Government lost all the responsibility to the new dominions.
9. The suzerainty of His Majesty’s Government over the Indian States lapsed.
10. All the treaties or agreements in force at the passing of the Act lapsed.

• The title of “Emperor of India” was dropped from the titles of British Crown.

1. The office of Secretary of State for India was abolished and the provisions of GOI Act 1935 relating to the appointments to the civil service or civil posts under the crown by the secretary of the state ceased to operate.