Constitutional Development

in India (Pre Partition)

Raja Shah Zaman Khuhro

03333647400
[email protected]
1

Introduction
So far as the constitutional development in the preindependent India is concerned the year 1858 should be
considered as the watershed.

However before that in times of the rule of the Company,

British Government from time to time issued orders and
made laws to supervise the affairs of the company

Regulating Act of 1773

The Regulating Act of 1773 was an Act of the Parliament of
GB intended to overhaul the management of the East India
Company's rule in India. The Act did not prove to be a longterm solution to concerns over the Company's affairs.
By 1773, Company was in dire financial straits. The
Company was important to
Britain
because it was
a monopoly trading company in India and in the east and
many influential people were shareholders. The Company
paid GB 400,000 (present-day (2013) equivalent is
43.3 million) annually to the government to maintain the
monopoly but had been unable to meet its commitments
since 1768 because of the loss of tea sales to America.
About 85% of all the tea in America smuggled was Dutch tea.
The Company owed money to both the Bank of England and
the government: it had 15 million lbs (6.8 million kg) of tea
rotting in British warehouses and more en route from India.
3

Regulating Act of 1773

Cont

Lord North decided to overhaul the management of

Company with the Regulating Act. This was the first step to
the eventual government control of India. The Act set up a
system whereby it supervised (regulated) the work of
Company.
The Company had taken over large areas of India for
trading purposes and had an army to protect its interests.
Company men were not trained to govern so North's
government began moves towards government control
since India was of national importance. Shareholders in the
Company opposed the Act. Company was still a
powerful lobbying grouping Parliament in spite of its
financial problems.
4

Provisions of the Regulating Act

The Act limited Company dividends to 6% until it repaid
a GB1.5M loan and restricted the Court of Directors to
four-year terms.
It prohibited the servants of company from engaging in
any private trade or accepting presents or bribes from
the natives.
The Act elevated Governor of
Bengal, Warren
Hastings to Governor-General of Bengal and subsumed
the presidencies of Madras and Bombay under Bengal's
control.
The Act named four additional men to serve with the
Governor-General on the
Calcutta Council: LtGen JohnClavering, George Monson, Richard Barwell,
and Philip Francis.
5

Provisions

Cont

Barwell was the only one with previous experience in

India. These councilors were commonly known as the
"Council of Four".
A supreme court was established at Fort William
at Calcutta. British judges were to be sent to India to
administer the British legal system that was used there.

The East India Company Act 1784

Also known as Pitt's India Act, it was intended to
address the shortcomings of the Regulating Act of
1773 by bringing the Company's rule in India under the
control of the British Government.

Act provided for the appointment of a Board of Control,

and provided for a joint government of British India by
both the Company and the Crown with the government
holding the ultimate authority.

The East India Company Act 1784

By 1773 Company was in dire financial straits and asked
for assistance from the British Government. Faced with
corruption and nepotism amongst the company officials
in India, the British Government enacted the Regulating
Act in 1773 to control the activities of the Company. The
Act set up a system whereby it supervised (regulated)
the work of the Company but did not take power for itself.
The Act had proven to be a failure within a few years and
the British government decided to take a more active
role in the affairs of the Company.

Provisions of the 1784 Act

A governing board was constituted with six members, two of
whom were members of the British Cabinet and the
remaining from the Privy Council.
The Board also had a president, who soon effectively
became the minister for the affairs of the East India
Company.
The Act stated that the Board would henceforth "superintend,
direct and control" the government of the Company's
possessions, in effect controlling the acts and operations
relating to the civil, military and revenues of the Company.
9

Provisions

Cont

The governing council of the Company was reduced to three

members, and the governor-general, a crown appointee, was
authorized to veto the majority decisions. The governors
of Bombay and Madras were also deprived of their independence.
The governor-general was given greater powers in matters of war,
revenue and diplomacy.

By a supplementary act passed in 1786 Lord Cornwallis was

appointed as the second governor-general of Bengal, and he then
became the effective ruler of British India under the authority of the
Board of Control and the Court of Directors. The constitution set up
by Pitt's India Act did not undergo any major changes until the end
of the company's rule in India in 1858.

10

The East India Company Act 1793

Also known as the Charter Act of 1793, was an Act of

the Parliament of Great Britain which renewed the
charter issued to the British East India Company, and
continued the Company's rule in India.

11

Provisions
In contrast with legislation concerning British India proposed
in the preceding two decades, the 1793 Act "passed with
minimal trouble".
The Act made only fairly minimal changes to either the
system of government in India or British oversight of the
Company's activities. Most importantly, the Company's trade
monopoly was continued for a further 20 years. Salaries for
the staff and paid members of the Board of Control were also
now charged to the Company. Other provisions of the Act
included:
The Governor-General was granted extensive powers over
the subordinate presidencies.
12

Provisions

Cont

The Governor-General's power of over-ruling his council

was affirmed, and extended over the Governors of the
subordinate presidencies.
Senior officials were forbidden from leaving India without
permission.
Royal approval was mandated for the appointment of the
Governor-General, the governors, and the Commanderin-Chief.
The Company's charter was next renewed by
the Charter Act of 1813.

13

THE East India Company Act 1813

Also known as the Charter Act of 1813.
It renewed the charter issued to the British East India
Company.
It continued the Company's rule in India.
However, the Company's commercial monopoly was
ended, except for the tea trade and the trade with China.
Reflecting the growth of British power in India.
14

Provisions
The Act expressly asserted the Crown's sovereignty
over British India.
It allotted Rs 100,000 to promote education in India.
Christian missionaries were allowed to come to British
India and preach their religion.
The power of the provincial governments and courts in
India over European British subjects was also
strengthened by the Act. Financial provision was also
made to encourage a revival in Indian literature and for
the promotion of science.
The Company's charter had previously been renewed by
the Charter Act of 1793, and was next renewed by
the Government of India Act 1833.
15

Government of India Act 1833

Also known as The Saint Helena Act 1833.

As this Act was also meant for an extension of the royal
charter granted to the company it is also called
the Charter Act of 1833.
This extended the charter by 20 years

16

Provisions
It made the Governor-General of Bengal as the GovernorGeneral of India. Under its provision
Lord William
Bentinck was the first Governor-General of India.
It deprived the Governor of Bombay and Madras of their
legislative powers. The Governor-General was given
exclusive legislative powers for the entire British India.
It ended the activities of the Company as a commercial
body and became a purely administrative body.
It attempted to introduce a system of open competitions for
the selection of civil servants. However this provision was
negated after opposition from the Court of Directors who
were still holding the privilege of appointing the companies
officials.
17

Charter act of 1853

The act renewed the powers of the company and allowed it
to retain the possession of Indian territories in trust for the
British crown but not for any specified period
The number of the members of the court of directors was
reduced from 24 to 18 of which 6 were to be nominated by
the crown
The law member was made a full member of the governor
generals executive council.
The legislation was treated for the first time as separate
from executive functions.
Questions could be asked and the policy of the executive
council could be discussed, though the executive council
could veto a bill of the legislative council
Recruitment to civil service was based on open competition
examination (excluding Indians).
18

Government of India Act 1858

The Government of India Act 1858 was passed on August 2,
1858. Its provisions called for the liquidation of
the 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, thenPM of UK, 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.
Indian Rebellion of 1857 urged British Government to pass
this Act to calm down the after effects of 1857 revolt
This ushered in a new period of Indian history, bringing about
the end of Company rule in India. The era of the new British
Raj would last until Partition of India in August 1947
19

Provisions
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.
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.
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.
The Crown was empowered to appoint a Governor-General and
the Governors of the Presidencies.
Provision for the creation of an Indian Civil Service under the
control of the Secretary of State.
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.
20

The Indian Council Act 1861

It transformed the Viceroy of India's executive council into a
cabinet run on the portfolio system. This cabinet had six
"ordinary members" who each took charge of a separate
department in Calcutta's government: home, revenue,
military, law, finance, and (after 1874) public works. The
military Commander-in-Chief sat in with the council as an
extraordinary member. The Viceroy was allowed, under the
provisions of the Act, to overrule the council on affairs if he
deemed it necessary - as was the case in 1879, during the
tenure of Lord Lytton.
The Secretary of State for India at the time the Act was
passed, Sir Charles Wood, believed that the Act was of
immense importance: "the act is a great experiment. That
everything is changing in India is obvious enough, and that
the old autocratic government cannot stand unmodified is
indisputable."
21

Provisions
The 1861 Act restored the legislative power taken away by
the Charter Act of 1833. The legislative council at Calcutta
was given extensive authority to pass laws for British India as
a whole, while the legislative councils at Bombay and Madras
were given the power to make laws for the "Peace and good
Government" of their respective presidencies. The Governor
General was given the power to create new provinces for
legislative purposes. He also could appoint Lt. Governors for
the same. However from India's point of view the act did little
to improve the influence of Indians in the legislative council.
The role of council was limited to advice. No financial
discussion could take place.
22

The Indian Council Act 1892

It authorized an increase in the size of the
various legislative councils. 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 Indian legislative
councils were henceforth to be nominated by Bengal
chamber of commerce and provincial legislative council.

The
universities,
district
board, municipalities,
Zamindars
and
chambers
of
commerce were
empowered to recommend members to provincial
councils.
23

The Indian Council Act 1892

Thus was introduced the principle of representation. It
also relaxed restrictions imposed by the Indian Councils
Act 1861, thus allowing the councils to discuss each
year's annual financial statement. They 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
question. Thus it prepared the base of Indian Democracy.

24

Indian Councils Act 1909

The Indian Councils Act 1909 commonly known as
the Morley-Minto Reforms, was an Act of the parliament
of UK that brought about a limited increase in the
involvement of Indians in the governance of British India.
John Morley, the Liberal Secretary of State for India, and
the Conservative Governor-General of India, The Earl of
Minto, believed that cracking down on uprising
in Bengal was necessary but not sufficient for restoring
stability to the British Raj after Lord Curzon's partitioning
of Bengal. They believed that a dramatic step was
required to put heart into loyal elements of the Indian
upper classes and the growing Westernized section of
the population.
25

Significance of the Act

They produced the Indian Councils Act of 1909 (MorleyMinto reforms), these reforms did not go any significant
distance
toward
meeting
the
Indian National
Congress
demand for 'the system of government
obtaining in Self-Governing British Colonies'.

The Act of 1909 was important for the following reasons:

1. It effectively allowed the election of Indians to the various
legislative councils in India for the first time. Previously
some Indians had been appointed to legislative councils.
The majorities of the councils remained British
government appointments. Moreover the electorate was
limited to specific classes of Indian nationals;
2. The introduction of the electoral principle laid the
groundwork for a parliamentary system even though this
was contrary to the intent of Morley
26

Significance of the Act

3. Muslims had expressed serious concern that a first past
the post British type of electoral system would leave them
permanently subject to Hindu majority rule. The Act of
1909 stipulated, as demanded by the Muslim leadership
4. that Indian Muslims be allotted reserved seats in the
Municipal and District Boards, in the Provincial Councils
and in the Imperial Legislature;
5. that the number of reserved seats be in excess of their
relative population (25 percent of the Indian population);
and,
6. that only Muslims should vote for candidates for the Muslim
seats ('separate electorates').
27

Significance of the Act

Cont

These concessions were a constant source of strife

1909-47.
British
statesmen
generally considered
reserved seats as regrettable in that they encouraged
communal extremism as Muslim candidates did not have
to appeal for Hindu votes and vice versa. As further
power was shifted from the British to Indian politicians in
1919, 1935 and after, Muslims were ever more
determined to hold on to, and if possible expand,
reserved seats and their weightage. However, Hindu
politicians repeatedly tried to eliminate reserved seats as
they considered them to be undemocratic and to hinder
the development of a shared Hindu-Muslim Indian
national feeling.
28

Provisions
1.
2.

3.

The number of the members of the Legislative Council at the

Center was increased from 16 to 60.
The number of the members of the Provincial Legislatives was
also increased. It was fixed as 50 in the provinces of Bengal,
Madras and Bombay, and for the rest of the provinces it was 30.
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).
29

Provisions

Cont

4. The right of separate electorate was given to the Muslims.

5.

Official members were to form the majority but in provinces nonofficial 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.

30

Provisions

Cont

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.

9. The Governor General was empowered to nominate one

Indian member to his Executive Council.

31

MontaguChelmsford Reforms
The Montagu Chelmsford Reforms or more briefly
known as Mont-Ford Reforms were reforms introduced
by the British Government in India to introduce selfgoverning institutions gradually to India. The reforms
take their name from
Edwin Samuel Montagu,
the Secretary of State for India during the latter parts of
World War I and Lord Chelmsford, Viceroy of India
between 1916 and 1921.

The reforms were outlined in the Montagu-Chelmsford

Report prepared in 1918 and formed the basis of
the Government of India Act 1919. Indian nationalists
considered that the reforms did not go far enough while
British conservatives were critical of them.
32

MontaguChelmsford Reforms

Cont

Edwin Montagu became Secretary of State for India in June

1917 after Austen Chamberlain resigned. He put before the
British Cabinet a proposed statement containing a phrase
that he intended to work towards "the gradual development
of free institutions in India with a view to ultimate selfgovernment." Lord Curzon thought that this phrase gave
too great an emphasis on working towards self-government
and suggested an alternative phrase that the Government
would work towards "increasing association of Indians in
every branch of the administration and the gradual
development of self-governing institutions with a view to the
progressive realization of responsible government in India
as an integral part of the British Empire." The Cabinet
approved the statement with Curzon's phrase incorporated
in place of Montagu's original phrase.
33

Report
In late 1917, Montagu went to India to meet up with Lord
Chelmsford, the Viceroy of India, to meet with leaders of
Indian community to discuss the introduction of limited
self-government to India and protecting the rights of
minority communities
The Report went before Cabinet on 24 May and 7 June
1918 and was embodied in the Government of India Act
of 1919. These reforms represented the maximum
concessions the British were prepared to make at that
time. The franchise was extended, and increased
authority was given to central and provincial legislative
councils, but the viceroy remained responsible only to
London.
34

Report
The changes at the provincial level were significant, as the
provincial legislative councils contained a considerable
majority of elected members. In a system called "diarchy,"
the nation-building departments of government agriculture,
education, public works, and the like were placed under
ministers who were individually responsible to the legislature.
The departments that made up the "steel frame" of British
rule finance, revenue, and home affairs were retained by
executive councilors who were nominated by the Governor.
They were often, but not always, British and who were
responsible to the governor.
In 1921 another change recommended by the report was
carried out when elected local councils were set up in rural
areas, and during the 1920s urban municipal corporations
were made more democratic and "Indianized.
35

Provisions
The main provisions were the following:
1. The secretary of state would control affairs relating to
Government of India
2. The Central Legislature would comprise two chambersThe Council of State and the Indian Legislative Assembly
3. The Central Legislature was empowered to enact laws on
any matter for whole of India.
4. The Governor General was given powers to summon,
prorogue, dissolve the Chambers, and to promulgate
Ordinances.
5. The number of Indians in Viceroy's Executive Council
would be three out of eight members.
6. Establishment of unicameral Provincial Legislative councils.
7. Dyarchy in the Provinces.
36

Government of India Act 1919

It was passed to expand 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.

37

Provisions
The Act provided a dual form of government (a "dyarchy")
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.
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.
38

Provisions
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.
39