Constitutional history

1. Company rule and the beginnings of parliamentary control

The Company’s acquisition of the Diwani of Bengal, Bihar and Orissa in 1765 expanded its revenue and governing responsibilities. Financial difficulties, administrative abuses and political concerns prompted British parliamentary intervention. These early enactments regulated imperial power; they were not constitutions founded on Indian consent.

The Regulating Act, 1773 made the Governor of Bengal the Governor-General of Bengal, assisted by a four-member council. Warren Hastings became the first incumbent. Bombay and Madras were subordinated to Bengal in specified matters, notably war and peace. The Act also provided for a Supreme Court at Calcutta, established in 1774. Unclear boundaries between judicial and executive authority generated conflicts, partly addressed by the amending Act of 1781.

Pitt’s India Act, 1784 introduced a Board of Control to supervise civil, military and revenue affairs, while the Court of Directors retained commercial management. This arrangement is commonly called dual control. It should not be confused with provincial dyarchy introduced in 1919.

The Charter Act, 1813 ended the Company’s trade monopoly in India, except its tea trade and trade with China. The Charter Act, 1833 ended its remaining commercial functions and made the Governor-General of Bengal the Governor-General of India; William Bentinck was the first. It centralised legislative authority. The Charter Act, 1853 separated legislative and executive functions within the Governor-General’s Council and opened the way to competitive recruitment to the civil services, subsequently shaped by the Macaulay Committee of 1854.

2. Crown rule and limited Indian representation

After the Revolt of 1857, the Government of India Act, 1858 ended Company rule and transferred government to the Crown. A Secretary of State for India, assisted by a Council of India, replaced the earlier system of control. The Governor-General also acted as the Crown’s representative, commonly called the Viceroy. Lord Canning was the first Viceroy.

The Indian Councils Act, 1861 associated nominated Indians with legislative work and restored legislative powers to Bombay and Madras. It recognised the portfolio system and authorised the Governor-General to issue ordinances in emergencies. Representation remained narrow: nomination did not establish responsible government or popular sovereignty.

The Indian Councils Act, 1892 enlarged legislative councils and allowed discussion of budgets and questions, subject to restrictions. Recommendations by specified bodies introduced an indirect elective element without expressly describing it as election. The Indian Councils Act, 1909, associated with the Morley–Minto reforms, expanded councils and introduced separate electorates for Muslims. The central legislature retained an official majority. These reforms broadened participation while institutionalising communal representation.

3. The Acts of 1919 and 1935: devolution without sovereignty

The Government of India Act, 1919 implemented the Montagu–Chelmsford reforms. It introduced dyarchy in provinces: transferred subjects, such as education and public health, were administered by ministers responsible to provincial legislatures, while reserved subjects, including police and finance, remained under the Governor and executive councillors. It also introduced a bicameral central legislature. The central executive, however, remained outside legislative responsibility.

The Simon Commission, appointed in 1927 without Indian members, reviewed the working of the constitutional arrangements. Opposition to it, the Round Table Conferences of 1930–32, and subsequent British proposals formed the background to the Government of India Act, 1935. Indian constitutional demands developed independently of, and frequently against, these official processes.

The 1935 Act abolished provincial dyarchy and introduced provincial autonomy. Elections in 1937 brought ministries into office under this arrangement. Nevertheless, Governors retained discretionary powers and special responsibilities, limiting responsible government. The Act proposed an all-India federation of British Indian provinces and princely states, but insufficient princely-state accession prevented its establishment.

The Act provided for dyarchy at the Centre, which never operated because the federal scheme did not commence. It distributed legislative subjects through Federal, Provincial and Concurrent Lists and assigned residuary legislative authority to the Governor-General’s discretion. A Federal Court began functioning in 1937. Its institutional influence on the Constitution was substantial, but the Act lacked universal adult franchise, a sovereign elected legislature and a justiciable fundamental-rights framework comparable to Part III.

4. Nationalist constitutional ideas and the transfer of power

Constitutional development was not merely a sequence of British concessions. The Nehru Report of 1928, prepared by a committee chaired by Motilal Nehru, proposed dominion status, responsible government and fundamental rights. The Karachi Congress resolution of 1931 linked civil liberties with social and economic commitments. These initiatives helped establish rights and welfare as central constitutional concerns.

M. N. Roy advanced the idea of a Constituent Assembly in 1934, and the Congress officially demanded one in 1935. The August Offer of 1940 acknowledged a role for Indians in framing a future constitutional scheme. The Cripps proposals of 1942 offered constitution-making after the war but failed to secure agreement.

The Cabinet Mission Plan of 1946 provided the framework for the Constituent Assembly. Its planned strength was 389: 292 representatives from Governors’ provinces, four from Chief Commissioners’ provinces and 93 from princely states. Provincial representatives were indirectly elected by legislative assemblies through proportional representation using the single transferable vote; princely-state representatives were to be nominated.

The Indian Independence Act, 1947 created the independent Dominions of India and Pakistan from 15 August 1947, ended British paramountcy over princely states and empowered their Constituent Assemblies to frame constitutions. Pending a new Constitution, India operated under an adapted Government of India Act, 1935. Partition reduced the Indian Constituent Assembly’s strength to 299.

5. Constitution-making and the republican transformation

The Assembly first met on 9 December 1946, with Sachchidananda Sinha as temporary chairman; Rajendra Prasad became its President on 11 December. Jawaharlal Nehru moved the Objectives Resolution on 13 December 1946, and it was adopted on 22 January 1947. It supplied foundational principles later reflected in the Preamble.

Committees handled detailed preparation. Nehru chaired the Union Powers and Union Constitution Committees. Vallabhbhai Patel chaired the Provincial Constitution Committee and the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas. The Drafting Committee, appointed on 29 August 1947, was chaired by B. R. Ambedkar. B. N. Rau served as Constitutional Adviser, not as a member of the Drafting Committee.

The Assembly deliberated over two years, eleven months and eighteen days. It adopted the Constitution on 26 November 1949; 284 members signed it on 24 January 1950. Most provisions commenced on 26 January 1950, commemorating the independence observance of 1930. The original Constitution contained 395 Articles and eight Schedules.

Its authority came from ‘We, the People’, rather than a British statute. Parliamentary government, federal institutions and administrative continuity were combined with universal adult suffrage under Article 326, enforceable fundamental rights and judicial review. Article 372 continued existing laws subject to the Constitution, preventing a legal vacuum.

Constitutional history helps explain institutional origins but does not determine present constitutional meaning by itself. In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that Parliament’s amending power under Article 368 cannot destroy the Constitution’s basic structure. This later doctrine protects the constitutional order established through the founding process.

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