During the colonial era, multiple Acts were introduced by the British to make the administration of such a large, diverse nation convenient for them. Subsequently, a number of these legislations influenced several provisions formulated by the Drafting Committee of the Indian Constitution, which became an integral part of not only the Constitution of India but of the governance system in the country. The below cited examples of certain ‘British Acts’ have even caused some constitutional and political scholars to believe that the formation of the Constitution was a transfer of power from one set of leaders to another and the underlying policies remained similar to what existed before the country attained independence. In this light, it becomes imperative for us to look at our administrative history and understand a few of these pre-independence Acts that laid the foundation of our democracy.
Company Rule and the Initial Acts
To start with, the Supreme Court in India was established by the Regulating Act of 1773 which was the first Act brought by the British to regulate the affairs of East India Company (EIC) and exercise control over members of EIC who were engaged in cases of corruption and bribery frequently, by unequivocally prohibiting members to engage in any private trade. Additionally, the idea of giving different types of veto powers to the President of India was inspired by the Pitts India Act of 1784 which was brought to distinguish between the commercial and political functions of the Company and gave extensive veto powers to the Governor-General to maintain strict control over EIC. These powers were further extended via the Charter Act of 1793 and empowered the Governor-General to override his Council’s decision under certain circumstances. These veto powers are still accorded to the President of India via absolute veto, suspensive veto, and pocket veto. Even the provision regarding the President being made the Commander in Chief of Indian armed forces was inspired from the Pitt’s India Act of 1786 under which Lord Cornwallis, the then Governor-General of India, was to be the Commander in Chief of Indian forces.
For the sake of timelines, the administrative period in pre-independent India is divided into two phases: Company rule and Crown rule. Company rule started in 1773 when British East India Company took up political functions in addition to a commercial role. The British government stayed on the sidelines while simultaneously giving directives to EIC officials to hone them in their administrative responsibilities. However, after the first war of independence in 1857, the need was felt for more strategic control and accountability to the Crown and India came under the direct rule of the British Crown via the Act for the Good Governance of India, 1858. The Acts that came post-1857 played a decisive role in laying the foundation for administrative and governance system in the country. For instance, the portfolio system started by Lord Canning under Indian Councils Act, 1861 was the beginning of the Cabinet system in India. This Act of 1861 was also noteworthy because it empowered the Viceroy (post the 1857 war, through the Act for Good Government of India, 1858, another post of Viceroy was created – Governor-General and Viceroy were the same individual acting in different capacities) to issue ordinances without any concurrence of the legislative council in cases of emergency and these ordinances were to have a life of six months. This provision later found a place in Article 123 of the Constitution of India albeit with certain exceptions.
The beginning of the Parliamentary system in India can also be attributed to a pre-independence Act called the Indian Councils Act of 1892, but the three most important acts that contributed immensely to our Constitution were the Indian Councils Act 1909, Government of India Act 1919, and the Government of India Act 1935.
Indian Councils Act, 1909 or Morley-Minto Reforms was a legislation brought by the British to accept some demands of moderates without having to deal with the extremists (Moderates and Extremists were two groups within the Indian National Congress of which the former believed in getting dominion status for India through constitutional means while the latter believed in attaining Poorna Swaraj or complete independence by rightful means). This was a British tactic to pacify and appease Moderates in line with their divide and rule policy. The act not only introduced an element of election to legislative councils, but it also provided for the first time for association of Indians with the executive councils of Viceroys and Governors. Consequently, Satyendra Prasad Sinha became the 1st Indian to join the Viceroy’s executive council. It can thus be concluded that this act was the beginning of the representative system in India.
Another key legislation was the Government of India Act of 1919 or Montague-Chelmsford reforms, which initiated the process of demarcating and separating central and provincial subjects, a concept which is a vital part of the Indian Constitution in the form of the 7th schedule which classifies subjects into three lists (Union List, State List, and Concurrent List). It also introduced the bicameral system (having two houses – upper and lower) and gave women, with a certain income threshold, voting rights, although they still weren’t allowed to contest elections. Most importantly, this Act established the office of Speaker and Deputy Speaker (Frederick Whyte was the first Speaker and Sachidananda Sinha was the first Deputy Speaker appointed in 1921) in addition to establishing a Public Service Commission. Additionally, the rule pertaining to allocating the first hour of every parliamentary meeting to asking questions was also introduced under this Act, a practice that is still crucial to the effective functioning of both the lower and upper house in the Parliament.
The most important piece of legislation which could even be called a blueprint of the Constitution of India is the Government of India Act, 1935. Having 321 sections and 10 schedules, it had several significant articles – it gave certain residuary powers to Viceroy, provided for a federal court set up in 1937, abolished diarchy (a system of double government officially introduced by Act of 1919) and provided autonomy to provinces, making the Governor the head of the executive organ in the state. It required Governor to make decisions in accordance with the advice of ministers responsible to provincial legislatures. It provided for the establishment of the Reserve Bank of India and contained provisions for the establishment of the Provincial Public Service Commission and Joint Public Service Commission.
It can thus be concluded that members of the drafting committee chaired by Dr Ambedkar were working with a broad legislative framework comprising of existing institutional procedures and laws, and the Constitution that we currently have is a result of pre-independence legislations combined with extensive research based on several different Constitutions from diverse parts of the world. Even though the combined, continuous efforts of the three organs of the government over the past 71 years have helped us in creating a robust system of governance which is distinctive to India, there are still many miles to go in making India a true, independent and accountable democracy.
—The writer is a law student at Central University of Kashmir. [email protected]