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CONSTITUTION OF INDIA
By
Er & Adv: Davy Cherian ,M.E , LLB
(Chartered Engineer)

CONSTITUTION OF INDIA

What is a Constitution?

A Constitution means a document having a special legal sanctity sets out the frame-work
and the principal functions of the organs of the Government of a State and declares the principles
governing the operations of those organs.

Indian Constitution

The Indian Constitution was drafted by a body called Constituent Assembly consisting
eminent representatives and Dr. Ambedkar as Chairman of the drafting committee. The Committee
put on lot of research and deliberations and referred to all the well known Constitutions Viz
America, Switzerland and Australia. In England there is no written constitution but strictly follows
an unwritten constitution.

Date of implementation of Constitution of India

26th January 1950 brought India into a new Republic with a new Constitution .

Constitutional Law :- The rule which regulates the structure of the principal organs of the Govt:
and their relationship with each other and determines their principal function.
The rules means legal rules as well as of usages i.e. Conventions , which
without being enacted are accepted as binding by all concerned in the Govt: and its violation will
take the culprit into proceedings before the court.

Historical Background

Indian legal prudence actually starts by the British rule in India i.e. from AD 1600 when the
East India Company was incorporated . We can neglect the Hindu and Muslim reigns when we
study the modern Constitution of India as no remnants are seen of the above mentioned reigns
anywhere in India now.

Growth of Our Constitution

The British Rule may be divided as follows with the development of rule of law in
India .
1. 1600 –1765
2. 1765 –1858
3. 1858 – 1919
4. 1919 – 1947
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5. 1947- 1950
1600 - 1765 – The Coming of the British

Formation of East India Company

Some enterprising merchants of Great Britain were attracted by the fabulous wealth of
India formed a company exclusively for trading with India. Company was chartered by Queen
Elizabath in Dec 1600 with the Power vested with a Governor and 24 other members and
authorized to send trade expeditions to India . It was also authorised a navel force for its security
and the first effective period was 15 yrs terminable with two years notice.

Growth of East India Co.

The Company established trade links at many places in India starting from Surat where
they got land and other concessions offered by Emperor Jahangir .This was followed at
Musuliapattom (TN)-1639 ) and later at Hariharpur in Mahanadi Delta (1690) In due course of
time they made settlements / presidency in Bombay , Madras and Culcatta . Though they were
liable to obey the rule of the land, the Indian Rulers allowed them to retain their own law in their
territories.

Legislative Power was limited to the company and they were in line with the laws, statutes and
customs of England.

Charter of 1726

Upto 1726 , the law making for the co. was in England . But it was thought that the law
for the East India in India be made here and the Governor and the council of three presidencies to
make , constitute and ordain bye-laws , rules and ordinances which are in line with the English laws
and practices and approved by Company’s Court of Directors . The Charter also established the
Mayor’s court in Culcutta , Bombay and Madras and expressly introduced English laws in these
presidencies .
Till 1765 , British didn’t take the reigning power into their hands but concentrated only in
trading . By 1765 , the last Mugal Emperor Aurangazeb was started disintegrating . Then the
company exploited the chaotic situation brilliantly and gradually established itself as the unrivalled
master of Indian Sub-continent . The Victory in 1757 at Plassy against King Sirjuddalla , Nawab of
Bengal laid the foundation for British Empire in India and was given the power for Diwani i.e. the
collection of revenue to company which automatically made the company with the administration
of civil justice.

1765-1858 - Beginning of the British Rule

Though the English people got the power to civil administration and tax collection they did not
do it all on a sudden , but got done through Indian officials . The Supreme body was that of
Governor and Councillors and the officers of the Company were low paid servants which made
them to be corrupted. The locals disliked the English People and they used to shut the shops , roads
thronged.
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The Company further grown into corruption , amazing wealth by the individuals and making
the company bankrupt.

The State of affairs of the Company and the corrupt practices of their officers made of
shadow of suspicion about the company in England . Consequently a secret Committee was
constituted to enquire into the affairs of the company on 13th April 1772 and suggested that the
affairs of the Company must be regulated by the British Parliament and accordingly the Parliament
passed Regulating Act of 1773 .

This Act of 1773 (a) changed the constitution of the company in India (b) recognized
the Govt. in Culcutta (c) brought the presidencies of Bombay and Madras under the control of
Governor -General of Bengal(d) establishment of Supreme court in Culcutta . The Act 1773
brought more control to the British Govt: over the company . The tenure of Board of Governors
increased to 4 years and the voting power was given to only those who possessed 1000 founds.

(b) Form of Govt: in India

Before 1773 Act,. the three presidencies were independent of one another and had direct
dealings with the Court of Directors in England . Act of 1773 appointed a Governor – General and
four Councilors for presidency of Calcutta and the 1st Governor , General Warren Hastings was
appointed and other presidencies were brought under the administration of Culcutta presidency .

© Legislative Power

The Governor -General and his council were to make rules, ordinances and regulations
for good governance of the company. Such laws and rules should not be contradictory to the
English laws and become valid only if it is notified by the Supreme Court.

(d) Supreme Court

The Act of 1773 provided the establishment of Supreme court in calcutta consisting of a
Chief Justice(CJ) and other three judges appointed by the Crown . The court vested with civil ,
Criminal , admiralty and ecclesiastical ( religion Jurisdiction)

Though the object of Act of 1773 was good, its implementation was not perfect and the
Governor -General was at the mercy of the councilors as the decision were on majority vote. Hence
to rectify the defects in the Act 1773, the parliament passed the Act of settlement in 1781.

The Act of Settlement 1781

This made (1) It excepted the actions of Public servants of the Co. done in official Capacity
from the Jurisdiction of the Supreme Court. (2) It tried to settle the question of jurisdiction of the
court over Servants of the Co. and the native inhabitants and (3) decided the law to be used in
Supreme Court.
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The PIT India Act 1784

The mal-administration as well as corruption by the company officials continued and the
settlement Act of 1781 could not make any effective control for British Govt : over the Company
The matter was raised in the Parliament and consequently two committees were appointed . The
Committee recommended the recall of the Governor- General warren Hastings and the Chief
Justice Impey. But the Company in the Court of Proprietors refused to recall them which proved
that there is no effective control for Parliament over the affairs of the Company. To remedy this
situation the Pitts India Act was passed by the Parliament.

This Act aimed at rectifying the defects in the Act of 1773 and settlement Act of 1781. By
the PITS India Act the Company’s functions were distinguished as commercial and political. The
Commercial were handled by Court of Directors and for political, 6 Commissioners Known a
Board of control were constituted with vast powers to superintend, direct and control on operations
of civil and military Govts of British possessions in East India. The charter Act of 1793 renewed
the company’s monopoly of trade for a further period of 20 years.

The Charter Act 1813

By this Act, the trade was opened for all Britishers and was not restricted to East India Co.
The regulations made by the councils were to be placed before the British Parliament . Thus the
monopoly of East India Co. was taken away .

Charter Act 1833

This made important changes in the constitution of legislatures in India . The Governor-
General of Bengal was made the Governor -General of India . The Governor- General in Council
was empowered to make laws for all persons , places with in territory of Company The
Council was expanded with a fourth Member as the Law member and there was express saving of
the right of Parliament to make laws for India .
The Acts under previous Acts were called Regulations but the laws made under Act
1833 were called Acts of Parliament.

The Charter Act of 1853

This Act separated the Legislative machinery and Executive. The Act created Separate
Legislature Council for India consisting of 12 members . The 12 members consisting of Governor
General , the commander- in- chief, four members of the council and six legislative members of
whom two were English judges of Culcutta Supreme Court and other four were officials appointed
by Madras , Bombay , Bengal and Agra presidencies . The Act also given power for a Separate
Governor- General for Bengal and given power to Governor- General to veto any legislation made
by the Legislative Councils . The Act also abolished the power to appoint by Court of Directors of
the Company. Infact this passed the way to transfer the territories to the Crown.
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1858 to 1919 - End of Company’s Rule

The Double Govt: System introduced by Pits India Act also failed to eradicate the
corruption and mal- administration of the company and the company’s Govt: in India became
thoroughly irresponsible . As a consequence, the Mutiny of 1857 the first war of independence
against the company broke out which gave death blow to the company’s Rule in India. Then the
British Parliament passed the Act for better Govt: the Govt: of India Act 1858.

The Government of India Act 1858

By the Govt : of India Act 1858 , the Company’s rule was ended and it was transferred to
the British Crown . The Board of control and the Board of Directors of the company were
abolished and all powers were transferred to Secretary of state , who was appointed by the Crown
to look after the affairs of British India . The Secretary of the State was to have assisted by a
council of members consisting 15 members and known as ‘Council of India’. Eight of the members
were appointed by the Crown and the remaining by the Court of Directors. The Secretary of state
was the chairman of the Council. He was required to lay before the parliament an account of
revenues, a statement of moral and material progress of India. The Law Member or the Advocate
General of the Governor- General in council of India were to be appointed by the King .

Indian Council of 1861

This was a very important Act by which the Indians were associated with the legislation .

Legislative Power

The legislative Council under the Governor- General (GG) was empowered to frame
law and regulation and also issue ordinances by GG. The other presidencies of Bombayand Madras
were also given powers to frame legislation for their Provinces but it should not be against the
legislation passed by the Centre Council. This Council Act of 1861 is very important which in fact
laid down the foundation for the legislative devolutions and also gave complete internal autonomy
to the Provinces in 1937.

The Indian Council Act of 1867 also had many defects . It gave unlimited powers
to the Governor – General . The Indian representatives in GG’s Council were Zamindars and
young Indian Princes who were not intelligent enough to thwart , the bad- intentions of the British
rule .
This made the Political situation in India explosive and the from 1861- 1862
found the birth of Indian National Movement which led to the formation Indian National
Congress(INC) in 1885 . The INC passed in its first session and demanded the expansion of
Legislative Council by elected representatives and to increase their powers. The Viceroy Lord
Dufferin felt that the time has came to accept the demand. He appointed a committee to study the
demands by INC and the Viceroy sent a report to the British Govt: and subsequently the British
Parliament passed the Indian Council Act of 1892.
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The Indian Council Act 1892

This Act achieved 3 things

(1) It increased the number of members in central and provincial Councils.
(2) Introduced election system partially
(3) Enlarged the functions of the Councils

The Councils had the power to discuss the budget and subject to some restrictions to
ask questions from the Govt: . The president of Council, Governor- General had the power to
disallow any question.

With all these, this Act fell short of the expectations or demands made by the INC but
certainly there were great advancements as it paved the way for future progress by conceding the
Principles of election and giving Legislative Councils some control over the Executive.

Morley Minto Reforms – The Indian Councils Act of 1909

Certainly by this Act , the attempt to introduce representative and popular element
was made . By this Act, the Central Legislative Council increased the size from 16 to 60 and the
powers enlarged as the Councils were empowered to discuss any matters, ask questions and
supplemental questions. The Council had the power of discussing and moving resolutions on the
financial statement but they were not given the power of voting.

1919 to 1947 – Introduction of Self Govt:

Montagu- Chelmsford Report – The Govt: of India Act, 1919

This is the next land mark in the Constitutional development of India . The
report led to the enactment of the Govt: of India Act 1919. By this law, the INC became very active
and it was the period of the Ist world war and the INC pressed for their demands. Compelled by the
pressure, the British Govt : made a declaration on August 20 , 1917, the future policy of His
Majesty was to increase the association of Indians in every branch of administration and paved the
way for responsible Govt: in British India as an integral Part of British Empire . Certainly this was
the first step to the path of Independence of India .

Main Features of 1919 Act

1. The declaration - It promised a responsible Govt: to the Indian.

2. Dyarchy in the Provinces – The Act introduced a system of Dyarchy means double rule was
introduced . This was introduced to train the indian in the act of self – Govt . The subjects were
divided into two parts (1) reserved and (2) transferred. Jail , Police, Justice , Finance and
Irrigation i.e. comparatively more important subjects were to have handled by the Governor-
General and his Council without any responsibility to the legislature . Education , Agriculture ,
Local Self Govt: etc subjects of lesser importance were transferred to the Indian Ministers but
Governors can override both the Ministers and legislative Councils . At this Stage also, the
Power of Governor –General was unlimited, so that if he dislikes, nothing can be done.
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However the Percentage of elected representatives was increased to 70 % with separate

electorate for Muslims

Central Govt

The Central Govt was responsible to the British Parliament only through the Secretary of
State . There were Upper and Lower houses with 60 and 144 members respectively .

Structure of Govt to remain Unity

The Central legislature had to power to legislate on any matter, but in case of any
controversy , it was the Governor General and the Courts to take a final decision whether it is
Central or Provincial which is a clear sign that it remained as a Unitary System .

Short Comings of Act 1919

(1) Non Fulfillment of the demand for responsible Govt :

Since there were unlimited powers to Governor – General and hence it was totally a
Unitary . The Provisional legislation could not, without the previous sanction of the Governor
General , take up for consideration of any bill relating to a number of subjects .

(2) The Failure of Dyarchy

This system was a failure as the Members of the Executive Council who was in
charge of Finance was not a Minister . Further , the Ministers also were appointed individually and
hence there was no collective responsibility . There were serious difference of opinion between the
Executive Council Members who were in charge of the major portfolios and the Ministers .

Simon Commission

There were heavy pressure from INC for further participation in all fields and as
per the provisions of the Govt: of India Act 1919 to appoint Statutory commission after 10 years , a
commission was appointed with Sir John Simon , as the Head to inquire into and report on the
working of the Act in 1927 . The main recommendations of the commission was to call a Round
Table Conference of British Govt: and British India as well as Rulers of other states. A white paper
was prepared as a result of this Round Table Conference embodying the reforms and it was
submitted to the Select Committee of the Parliament . According to the recommendations of the
Select Committee , the Govt: of India Bill was introduced in the Parliament and passed with certain
amendments as Govt: of India Act 1935.

The Govt: of India Act 1935

This Act was the Second milestone of the road map leading to the full responsible Govt: in
India . This was a very detailed and lengthy document having 321 sections and 10 Schedules .

The basic Principle of the Act were the introduction of partial responsibility at the centre ,
Provincial autonomy and an All India Federation .
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(1) All India Federation

This Federation envisaged a Federation of British India Provinces and the

Indian states ruled by Kings/ Zamindars . There was one condition that in case any Indian
wanted to join the Federation , they must sign an Instrument of Accession and the proposed
consent for accession was surrendering the total power by them and hence the proposed
Federation remained non- existing as nobody was prepared to surrender.

(2) Dyarchy at the Centre

The Dyarchy in Province implemented by the Act of 1919 , was abolished and
implemented at the centre by 1935 Act which was an advancement towards responsible Govt: at
the Centre. The Act divided into 2 Categories (a) Reserved Subjects and (b) Transferred
subjects . The reserved subjects were made under the direct control of the Governor – General
who has executed them with the help of councillors who were appointed by him and were not
responsible to legislature .The Transferred subjects were handled by the Ministers who were
responsible to legislature. But the Governor- General was having his discretiouary Power in all
matters hence the purpose intended were not achieved .

(3) Provincial Autonomy

The important achievement of Act 1935 was it marked the beginning of Provincial
autonomy . The Act divided the legislative power between provinces and Centre which made the
Provinces are no longer delegates of Central Govt: but were units of administration . The
executive authority of the province was exercised by Governor on behalf of Crown and not sub-
ordinate of the Governor- General and the Governors were to act with the advise of the
Ministers who were responsible to the legislative.

Even then, not withstanding the provincial autonomy , the Act 1935
retained the control of the Central Govt: over the provinces in some spheres where the Governor
will act with out the advice of the Ministers and strictly under the control of Governor – General
and the through him of the Secretary of the State.

(4) Federal Legislature

Federal ( Central ) Legislature was to consist of two Houses , the Council of

states and the Legislative Assembly . Legislative assembly was to consist 375 members , 250
from British India Provinces and 125 representing Indian states . Its tenure was 5years unless
dissolved earlier. The Council of State, the Upper House to consist 260 members out of which
156 members to represent British India , 6 nominated members by Governor- General and the
rest were elected directly . 140 members were to be nominated by Indian Princes . The Powers
of the Federal Legislature were limited and if there was any difference of opinion , the Act
provided a Joint session of the Houses for solving the deadlock .
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(5) Provincial Govt

It consist of Governor and Council of Ministers to advise him . Three types of

power were vested with the Governor (1) Discretionary (2) Powers exercised by his individual
judgement (3) Powers exercised on the advise of the Ministers. Here also in case of matters
involving special responsibility , he could override the advise given by the Ministers .

(6) Provincial legislature

In some provinces this was bicameral and in other places unicameral .The
Provincial legislature was to make laws in the subjects in the provincial list , on the subjects in
concurrent list and also on residue subjects as per the directions of the Governor- General . The
Previous sanction of the Governor and the Governor- General was obligatory for almost on all
subjects. Financial Bills could be introduced only with the recommendations of the Governor
and the Act became Law only when it is assented by Governor. The Governor can return bill for
reconsideration. With all these Powers, the Governor still remained as a dictator in the
Provinces.

(7) Distribution of the Legislative power between the Centre and the Provinces

There were 3 lists. Federal List consisting 59 subjects and the

important were external affairs , currency and coinage, navel , military and airforce , census etc .
Provincial List had 54 subjects and the important subjects were Police, Public services ,
education etc . There was concurrent list with 26 subjects which has got importance in the
national / provincial importance . Important were Criminal Law , Criminal Procedure , Civil
Procedure , marriage and divorce , arbitration etc.

The Federal Legislature can legislate on subjects of Provincial

list in case of a emergency in the province proclaimed by the Governor- General or if two or
more Provinces desire a legislation of common interest. In case of repugnancy, the Federal
Law prevailed over Provincial Law to the extent of repugnancy till the Provincial law
received the assent of the Governor- General or his Majesty . The Governor- General may
authorise either Federal or the Provincial to enact a law on any subject not covered by the
above lists.

(8) Federal Court

The Act 1935 established the Federal Court with a CJ and not more tan six other
judge who are to retire at the age of 65 . They were appointed by the Crown.

Jurisdiction of Federal Court

The Federal Court has 3 kinds of Jurisdiction (1) Orginal (2) appellate (3)
advisory. It has got exclusive original jurisdiction on any dispute between Federation and its
units inter se. Appellate Jurisdiction from the Judgements from High Courts in India where it
has been certified by High Court that it involved substantial question of Law . An appeal
from Federal Court will go to Privy Council in Britan . It has got Govt: advisory Jurisdiction
also. The Governor may refer any question of law for its advise .
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Though the Act 1935 was passed ,it was effective in

province from 1935 onwards but the Central Govt : still was following the Act 1919 with
minor amendments . The elections took place and popular ministries came into office , but they
lasted only for two years .

By that time, the 2 nd world war broke out and the British Govt:
declared that India as belligerent Country at war with Germany . This was done with out the
concurrence of the Indian Leaders and Indian Legislature and hence the Congress Ministers
were resigned.

The Cripps Mission

By this time the freedom movement got momentum and the British Govt: convinced that
it can no longer remain indifferent on Indian demands and on 22 March 1942 , Sir Stafford Cripps
was appointed to negotiate with Indian leaders and to secure the co-operation for executing the war.

Sir Stafford Cripps suggested the following

(1) Immediately after the end of the war, steps shall be taken to set up in India an elected body for
framing a new constitution of India.

(2) To Participate Indian states in the constitution making body .

(3) The British Govt: to implement the constitution and if any British Provinces do not accept the
new Constitution, it may retain its old Constitutional provision untill it finally accept the new
constitution .

(4) The Constitution making body will consist of persons elected from Provincial Legislatures and
nominated by Indian Princes

(5) His majesty is to continue the defense of the Country .

Indian Leaders were not satisfied with the above proposals and hence rejected
it as they found seeds of partition of the country and also because of the inadequacy of the
proposals and insistence of the INC on Cabinet Govt:

By that time, the Labour Govt: took power in Britain and it was more
sympathetic towards India and subsequently the Cabinet Mission was appointed .
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The Cabinet Mission 1946

The Cabinet mission Recommended the following proposals

(1) There should be a Union of India embodying both British India and the states and with the
exception of certain reserved subjects , all subjects were to be retained by the states
(2) The paramountcy of Crown was to lapse.
(3) For the purpose of framing a new Constitution, Constituent Assembly was to be elected.
(4) An interim Government was to be set up having the support of major Political parties .
The proposals of Cabinet Mission were accepted and in July 1946 elections to
Constituent Assembly took place.

The Indian Independence Act , 1947

The provisions of the Act were as Follows

(1) The Act provided for the creation of two independent Dominions , India and Pakistan
(2) Each Dominion was to have a Governor- General who was to be appointed by the King .
(3) The Constituent Assemblies of both Dominions were empowered to frame laws in their
respective territories till the new Constitution came into force.
(4) After August 15, 1947 the British Government was not to control the Dominion or the
Provinces
(5) For the time being , till the new Constitutions was framed , each of the Dominions and the
Provinces were to be governed by the Government of India Act, 1935.
(6) The Secretary of the State for India was to be abolished and was taken over by Secretary of the
Commonwealth of Nations .
(7) The Act Proclaimed lapse of British paramountcy over Indian states.
The Indian Independence Act, 1947 , came into force on August 15, 1947 when
the British Rule in India came to end finally.

1947 to 1950 - The framing of the New Constitution

Infact the independence to India created more precarious position to Indian leaders as they
were not experienced in administration . Hence it was only the beginning of the struggle to live as
an independent state and at the same time establish the Democracy based on ideals of Justice ,
Liberty , equality and fraternity . It was most important to frame a new Constitution based on the
above ideals .

As provided in the Cabinet Mission report , the constituent Assembly were elected by
the Provincial Assembly by indirect election. Out of 296 seats for British India , the Congress
captured 211 and the Muslim Legaue 73 Seats . The rest were not filled up.

The Constituent Assembly was, after passing the Indian Independence Act 1947, a
soverigin body and it was free to frame any Constitution.
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The Important Personalities of the Constituent Assembly were Jawaharlal Nehru ,

Rajendra Prasad , Sardar Patel , Maulana Azad , Gopalaswami Ayyangar , Govind Ballabh Pant,
Abdul Ghaffar, T T Krishnamachari ,Alladi Krishnaswami Ayyar ,Sir H S Gour , K V Shah,
Masani, Acharya Kripalani , etc.

The first meeting elected Dr. Rajendra Prasad as its permanent Chairman. Since
Muslim League was not co-operating there was an uncertainty of its functioning . Inspite of this,
the Assembly achieved substantial progress and adopted an objective Resolution which later
became the preamble of the Constitution. It appointed various Committees to deal with various
aspects of the constitution . The report of Committees formed the basis on which the first draft of
the constitution was prepared by the Committee headed by Dr. Ambedkar.

The draft Constitution was published in Januvary 1948. The People of India were
given 8 months to discuss the draft and to propose amendments. As many as 7635 amendments
were proposed and 2473 were actually discussed . The Constituent Assembly held 11 sessions and
discussed the draft Constitution for 114 days altogether.

The new Constitution was adopted by the Constituent Assembly on 26 th Nov :

1949 and signed by President Dr. Ragendra Prasad . Articles 5 ,6, 7,8, 60, 324,366,367 , 372,
380 , 388. 39, 392 and 393 came into force immediately. The remaining Portion came into effect on
26th January 1950 which is the date of commencement of our Constitution .

References

1. Constitutional law of India - Dr . J .N. Pandey

2. Indian Constitution - Prof. G. P. Tripathi
3. The Indian Administrative Law - M.C Jain Kagzi