INTRODUCTION TO THE INDIAN CONSTITUTION N.O.T.E.S Unit-I CONSTITUTIONAL ANTECEDENTS AND MAKING OF THE CONSTITUTION OF INDIA

UNIVERSITY OF DELHI / SCHOOL OF OPEN LEARNING 

Generic Elective (GE) - Political Science

INTRODUCTION TO

THE INDIAN CONSTITUTION

N.O.T.E.S 

 Unit-I 

CONSTITUTIONAL ANTECEDENTS AND MAKING OF THE CONSTITUTION OF INDIA

INTRODUCTION : 

The constitution is crucial for the governance of a country and has sparked revolutions and movements throughout history.

Key normative themes such as rights, liberty, equality, fraternity, and justice have been emphasized in various movements like the French and American revolutions.

The British Glorious Revolution of 1688 and the Magna Carta in 1215 also protected human rights.

Constitutions can be written or unwritten, with the UK practicing an unwritten constitution.

India's constitution falls under the category of gaining independence from foreign rule.

The Indian constitution was framed between 1946 and 1949 with the guidance of prominent leaders like B.R. Ambedkar, Jawaharlal Nehru, Rajendra Prasad, and Maulana Abul Kalam Azad.

Acts passed by the British Parliament during colonial rule, such as the Regulating Act of 1773 and the Charter Acts of 1793, 1813, 1833, and 1853, influenced governance in India.

The Government of India Act of 1935 played a significant role in shaping the Indian Constitution of 1950.

The constituent assembly, considered representative of the people, finalized the constitution and came into force on January 26, 1950, marking India's independence.

November 26, 1949, is a significant date as it signifies the adoption of India's constitution, leading to its independent path.

The Constitutional Development of India 

The Government of India Act 1935 represents the early stages of governance and the progression of India towards republicanism.

The Constitution is a reflection of the nation's ideas and the state of its community.

The development of the Indian Constitution began with the Regulating Act of 1773 and continued until 1950.

Citizens are obligated to obey the rules of the Constitution when it governs a country.

The Constitution may also provide rights and regulations for governance.

CONSTITUTIONAL DEVELOPMENT IN INDIA : 

The Constitution of India establishes principles and ethics that govern the distribution of power within the nation.

The parliament acts as the legislature and enacts laws for the entire country, benefiting the citizens.

The Constitution ensures a just and honorable society for the people.

The Constitutional Development of India can be traced back to the Regulating Act of 1773 and draws inspiration from other British laws.

The Constitution allows for amendments, making the development an ongoing process.

The development can be divided into different phases, including historical background and an overview of the Constitution.

HISTORICAL TRAJECTORIES 

The Indian Constitution incorporates the rule by the East India Company and the British Crown, which negatively affected the Constitution.

The constituent assembly was responsible for laying down the Constitution of India, and it took nearly 3 years to complete the task.

The constituent assembly had multiple meetings to draft the Constitution, covering various aspects such as its composition, the assembly's functioning, committees, enactment, and enforcement of the Constitution.

CONSTITUTIONAL DEVELOPMENT IN INDIA FROM 1773 TO 1947

• Phase 1 (1773-1857) The survey of constitutional development during the power of the East India Company.

Origin and Development of the Indian Constitution (1773-1857):

Five constitutional developments and national movements controlled the functioning of the British East India Company in India from 1757 to 1857.

The Constitutional Development Acts began in 1773 under the crown rule of the East India Company.

The acts during this period include the Regulating Act of 1773, Pitt's India Act of 1784, Charter Act of 1813, Charter Act of 1833, and Charter Act of 1853.

Regulating Act (1773) :

The Regulating Act of 1773 marked the first significant step in constitutional development in India, enacted by the British Parliament.

The Act established centralization in India, making the Governor-General of Bengal the highest authority.

Warren Hastings became India's first Governor-General.

The Governors of Madras and Bombay were subordinate to the Governor of Bengal.

The Governor-General, assisted by four council members, held the power to create laws and statutes.

The East India Company had four directors, and the Governor-General had to follow the Company's directives.

Pitt's India Act (1784) :

Pitt's India Act of 1784 introduced systematic changes to the Indian constitution.

The colonies of the East India Company were referred to as the "British Possessions in India."

A mutual government of British India was established, with both the Crown and the Company having supreme power and authority.

A Court of Directors was created to oversee trading operations, and a six-member Board of Control was designated for political affairs.

The council of the Governor-General was reduced to three members, appointed in Madras and Bombay.

Charter Act (1813) :

The Charter Act of 1813 ended the East India Company's proprietorship and expanded trade with India to British citizens, except for the tea trade.

Charter Act (1833) :

The Charter Act of 1833 marked the final step in the process of centralization in India, which began with the Regulating Act of 1773.

The Governor-General of Bengal evolved into the Governor-General of India.

Lord William Bentick became the first Governor-General of India with full authority over revenue, military, and civil matters.

Charter Act (1853) :

The Charter Act of 1853 introduced competitive exams, including the civil service examination, to recruit individuals into civil services.

The legislative and executive processes of the Governor-General were separated.

Six new members were added to the Legislative Council, with four members selected by the Provisional Governments of Bombay, Madras, Agra, and Bengal.

The Governor General's Legislative Council was renamed the Central Legislative Council, operating as a mini-parliament following British guidelines.

• Phase 2 (1857-1947) - Constitutional investigations under the British Crown.

Government of India Act (1858) :

The British parliament passed the Government of India Act in 1858, signifying the end of East India Company rule and the transfer of authority to the British Crown.

The Secretary of State for India assumed the powers previously held by ex-Court Directors.

The administration of India was overseen by the Viceroy, who acted on behalf of the British Crown.

To assist the Secretary of State for India, a Council of India was established as an advisory body consisting of 15 members.

The position of Governor-General was transformed into the Viceroy of India, with Lord Canning serving as the first Viceroy.

Indian Council Act (1861) :

The Indian Council Act of 1861 introduced significant changes to the legislative framework in India.

For the first time, Indian citizens were included as non-official members of the Legislative Council of the Viceroy, providing them with a voice in the legislative process.

The act restored the legislative powers of Madras and Bombay, allowing them to govern and make laws in their respective provinces.

Legislative Councils were established in Bengal, Punjab, and the North-Western Frontier Province (NWFP), expanding the representation and participation of Indians in the legislative process.

Indian Council Act (1892) :

The Indian Council Act of 1892 resulted in an increase in the size of the Legislative Council in India.

It granted the Legislative Council the power to review and reflect on the budget, as well as conduct inquiries to the executive.

The act introduced indirect elections in India for the first time, allowing for a more representative system of governance.

It initiated the principle of representation, aiming to provide a voice to various sections of society in the legislative process.

Indian Councils Act - Morley Minto Reforms (1909) :

The Morley Minto Reforms, also known as the Indian Councils Act of 1909, brought significant changes to Indian constitutional development.

It introduced direct elections for the councils, allowing for a more democratic system of representation.

The Central Legislative Council was renamed the Imperial Legislative Council.

A communal representation system was established, providing reserved seats and a separate electorate for Muslims.

Satyendra Sinha served as a law member of India during this period.

Indian members were appointed to the Executive Council of the Viceroy, increasing Indian representation in the executive branch.

Government of India Act, Montagu Chelmsford Reforms (1919) :

The Government of India Act of 1919 introduced the concept of Bicameralism in the constitutional development of India.

It divided central and provincial issues and established a statutory board to examine the functioning of the government after ten years.

The act implemented the Dyarchy system, dividing provincial subjects into Transferred and Reserved lists.

Transferred subjects such as health, education, agriculture, and local government were under the authority of the Government of Ministers accountable to the Provincial Council.

Reserved subjects including foreign affairs, communications, and defense remained under the rule of the Viceroy.

The Viceroy's Executive Council consisted of six members, with three of them being Indians.

The act established the Public Service Commission in India to oversee the recruitment and functioning of public servants.

Communal representation was extended to include Anglo-Indians, Christians, and Sikhs, ensuring their representation in the legislative bodies.

Government of India Act (1935) :

The Government of India Act of 1935 marked the final and most extensive constitutional development in British India.

It was the result of multiple round table conferences and the Simon Commission's declaration.

Bicameralism was introduced in six states: Assam, Bihar, Bengal, Bombay, Madras, and United Provinces out of the total eleven.

Powers were divided into three lists: Provincial List, Federal List, and Concurrent List, defining the jurisdiction of different levels of government.

The Act abolished the Dyarchy system and granted provincial autonomy to the states.

It provided provisions for the establishment of the Federal Court and the Reserve Bank of India (RBI).

The Act also laid the groundwork for the All India Federation, which aimed to unite the provinces and princely states as units.

Cripps Mission (1942) :

The Cripps Mission, led by Sir Stafford Cripps, was sent to India in 1942 during World War II.

Almost all political parties and factions in India rejected the recommendations made by the Cripps Mission.

The mission proposed that India would be granted Dominion status after the war.

It suggested the formation of an elected body in India to structure the Constitution.

Cabinet Mission (1946) :

The Cabinet Mission plan introduced several key suggestions.

It proposed the unification of British Provinces and Indian States to form the Union of India.

A representative body called the Constituent Assembly would be formed, consisting of 389 members.

A provisional government would be created with 14 members representing the major political parties.

The Constituent Assembly would function as the Dominion Legislature until a self-imposed Constitution was established.

Mountbatten Plan - Indian Independence Act (1947) :

The Mountbatten Plan, also known as the Indian Independence Act of 1947, resulted in the partition of British India into India and Pakistan.

On August 14, 1947, Pakistan (comprising West Pakistan and East Pakistan) gained independence, while India became independent on August 15, 1947.

The act granted absolute legislative power to the Constituent Assembly for the development of the Indian Constitution.

The provinces and states were responsible for formulating their own governments in the new political landscape.

Development of Indian Constitution - Current Status :

The Indian Constitution serves as the supreme law of the country, guiding the government's core political principles, rights, authority, and responsibilities. 

The Constitution was drafted by the Constituent Assembly, which convened for the first time on December 9, 1946.

On August 14, 1947, the proposal to create committees for the Constitution was put forth.

The drafting committee, established on August 29, 1947, began the process of writing the Constitution.

The first draft of the Constitution was prepared by Dr. Rajendra Prasad, the first President of India, in February 1948.

The Constitution was adopted by the Constituent Assembly on November 26, 1949.

It was enacted on January 26, 1950, marking the official establishment of the Republic of India.

The Indian Constitution is renowned for being the world's longest and most extensive written constitution, comprising over 395 articles and 12 schedules

Constituents Assembly Debates  :

- Constituent Assembly Debates record the discussions and conversations that took place during the drafting of the Indian Constitution.

- They provide insights into the beliefs and thoughts of the members of the Indian Constituent Assembly.

- The Indian Constituent Assembly was established in May 1946, and the drafting of the constitution began in December 1946.

- After lengthy debates and deliberations, the Constitution was finalized on November 26, 1949.

- The debates covered various important topics, including fundamental rights, federalism, untouchability, the preamble, directive principles of state policy, languages of Indian states, the functioning of the governor, and the judiciary.

- The Constituent Assembly held discussions for over 165 days before the final draft was adopted.

- The Indian Constitution is the supreme law of the land, and understanding its background is crucial to comprehend its formation.

Constituent Assembly Debates Summary  :

- The Constituent Assembly Debates provide insights into the three-year process of drafting the Indian constitution.

- The debates can be classified into four stages: Primary Stage, Preliminary Stage, First Reading, Second Reading, and Third Reading.

- B.R. Ambedkar, a key figure in the formation of the Indian constitution, spoke the most during the debates.

- Fundamental Rights were discussed for around 16 days, and the Directive Principles of State Policy were debated for approximately 6 days.

- Only 10 out of 15 women in the Constituent Assembly participated in the debates.

- Various topics were covered in the debates, including untouchability, federalism, uniform civil code, fundamental rights, preamble, ordinance making, power of the president, and the abolition of the death penalty.

Constituent Assembly Debates :

• Untouchability :

The framers of the constitution aimed to eradicate untouchability and establish social equality in India.

They were influenced by the views of prominent figures like Mahatma Gandhi, B.R. Ambedkar, and Raja Ram Mohan Roy in addressing this issue.

• Federalism :

The Constituent Assembly Debates discussed the concept of federalism in India.

It was argued that India should be a federal country, with significant powers allocated to the states.

The term "civil" was not explicitly used in the Preamble, but the idea of a federal government was favored over a unitary form of government.

• Preamble :

The drafting committee members had debates and disagreements regarding the inclusion of the words "God" and "Gandhi" in the Preamble of the Indian Constitution.

The name of India was also a point of contention during the debates.

• Uniform Civil Code :

The Constituent Assembly Debates highlighted conflicts among the committee members regarding the inclusion and applicability of the Uniform Civil Code in Article 35 of the Constitution. 

Muslim members of the committee opposed the idea, but they were reassured by Baba Saheb Ambedkar, stating that civil law would not be imposed on those who disagreed with it.

• Other Motifs :

The debates also covered topics such as reservations for the poor and indigent, as well as the death penalty.

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PRACTICE QUESTIONS :

1. Discuss the steps taken by the British administration for the upliftment of Indian people?

The British administration took various steps, primarily driven by their colonial interests, which had both positive and negative impacts on the Indian people. Some of the steps taken include:

a) Introduction of modern education: The British established schools and universities, introducing modern education systems in India. This led to the spread of Western knowledge and the emergence of an educated middle class.

b) Infrastructure development: The British invested in infrastructure development such as railways, roads, and irrigation systems, which helped in improving transportation and communication.

c) Legal and administrative reforms: They introduced legal and administrative systems, including the establishment of courts, codification of laws, and administrative reforms. These measures brought some degree of order and uniformity.

d) English language and legal system: The promotion of the English language and the English legal system provided access to new avenues of employment and facilitated interaction with the British.

e) Economic policies: The British implemented various economic policies, including the establishment of railways, commercial exploitation of resources, and the introduction of cash crops. However, these policies often resulted in the exploitation of Indian resources and hampered traditional industries.

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2. Critically analyze the impact of the Government of India Act 1935 on the framing of the Indian constitution.

 Impact of the Government of India Act 1935 on the Framing of the Indian Constitution:

The Government of India Act 1935 had a significant impact on the framing of the Indian constitution. Some key points to consider are:

a) Federal structure: The Act introduced a federal system with provincial autonomy, which influenced the subsequent debates on federalism and the distribution of powers in the Constituent Assembly.

b) Provincial autonomy: The Act granted greater powers to provincial governments, which set a precedent for the decentralized approach adopted in the Indian constitution.

c) Limited popular participation: The Act maintained significant British control and limited popular participation in governance, which later influenced the debates on democratic principles and the role of the people in the constitution-making process.

d) Communal representation: The Act introduced separate electorates for religious communities, which had implications for the discussions on minority rights and representation in the constituent assembly.

e) Continuity and adaptation: The Act provided a framework for governance and administration that served as a starting point for the subsequent drafting of the Indian constitution. However, the constitution-makers made significant adaptations and modifications to suit the aspirations of an independent India 

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3. In what ways did constituent assembly debates help strengthen the power of the Indian Constitution? Give critical evaluation.

Ways in which constituent assembly debates strengthened the power of the Indian Constitution:

a) Shaping the constitutional framework: The constituent assembly debates allowed for extensive discussions and deliberations on various aspects of the constitution, leading to the formulation of a comprehensive and well-thought-out constitutional framework.

b) Addressing diverse perspectives: The debates facilitated the representation of diverse opinions and interests, ensuring that different viewpoints were considered while framing the Constitution.

c) Incorporating fundamental rights: The debates focused on the inclusion of fundamental rights, ensuring the protection of individual liberties, and safeguarding citizens' rights against potential abuse of power.

d) Establishing checks and balances: The debates helped establish a system of checks and balances, ensuring a separation of powers among the executive, legislature, and judiciary, thereby safeguarding against potential authoritarianism.

e) Enshrining social and economic principles: The constituent assembly debates resulted in the inclusion of directive principles of state policy, which aimed at promoting social justice, economic equality, and the welfare of the people.

Critical evaluation: The constituent assembly debates played a crucial role in shaping the Indian Constitution by incorporating various perspectives and ensuring that the Constitution reflected the values and aspirations of the people. However, there were limitations, such as the underrepresentation of certain marginalized groups and the compromise on certain issues due to political considerations. Additionally, the debates were conducted within the framework of the British-imposed Government of India Act 1935, which limited the scope of radical changes. Nonetheless, the debates laid .

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4. In what ways do you think that Indian Constitution is rigid and supreme?

The Indian Constitution is considered both rigid and supreme due to the following reasons:

a) Rigidity:  The Indian Constitution is relatively rigid in terms of amendment procedures. It requires a special majority in both houses of Parliament or a special majority of the state legislatures, followed by ratification by at least half of the state legislatures. This makes it difficult to amend the Constitution and ensures its stability and continuity.

b) Judicial Supremacy: The Indian Constitution establishes the judiciary as the final interpreter of the Constitution. The Supreme Court of India has the power of judicial review, allowing it to declare laws and actions unconstitutional. This ensures the supremacy of the Constitution over other laws and institutions.

c) Fundamental Rights: The Indian Constitution guarantees fundamental rights to its citizens, which are considered sacrosanct and cannot be easily violated or abridged. These rights are enforceable in a court of law, providing individuals with a means to protect their rights and freedoms.

d) Separation of Powers: The Indian Constitution provides for a separation of powers between the executive, legislative, and judicial branches. Each branch has its own powers and limitations, ensuring a system of checks and balances. This separation of powers ensures that no single entity becomes too powerful, safeguarding the supremacy of the Constitution.

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5. Discuss the provisions of Regulating Act of 1773.

The Regulating Act of 1773 was enacted by the British Parliament and aimed to regulate the affairs of the British East India Company in India. Some key provisions of the Act include:

a) Establishment of a Governor-General of Bengal: The Act created the position of Governor-General of Bengal and granted him supervisory powers over the other Presidencies of Madras and Bombay.

b) Establishment of the Supreme Court: The Act established the Supreme Court of Calcutta, which had jurisdiction over civil and criminal matters in the British territories in India.

c) Control over the Company: The Act increased parliamentary control over the British East India Company by requiring the Company to submit regular reports and accounts to the British government.

d) Appointment of Council: The Act introduced a system of the executive council to assist the Governor-General in making decisions.

e) Regulation of trade: The Act sought to regulate the Company's trade and prohibit private trading by Company servants.

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6. Compare the provisions of the Government of India Act (1919) and 1935.

Comparison of the provisions of the Government of India Act (1919) and 1935:

• Government of India Act (1919) :

a) Introduction of the dyarchy system: The Act introduced a system of dual government, separating the central subjects into reserved and transferred categories, with elected representatives having limited control over the transferred subjects.

b) Expansion of the legislative councils: The Act expanded the size of the legislative councils and introduced indirect elections.

c) Separation of provincial and central subjects: The Act provided for the separation of powers between the central and provincial governments.

• Government of India Act (1935) :

a) Provincial autonomy: The Act granted more powers to the provinces and introduced a system of provincial autonomy.

b) Federal structure: The Act proposed a federal structure for India, dividing powers between the central and provincial governments.

c) Separate electorates: The Act maintained the system of separate electorates for religious communities.

d) Abolition of dyarchy: The Act abolished the dyarchy system and introduced responsible government in the provinces.

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7. Discuss the provisions in the Charter Acts of 1793 and 1813.

Provisions in the Charter Acts of 1793 and 1813:

• Provisions in the Charter Act of 1793:

1. Renewal of the East India Company's charter: The Act renewed the charter of the British East India Company for another 20 years, extending its authority over British India.

2. Regulation of the Company's trade: The Act allowed the East India Company to continue its monopoly on trade with India.

3. Appointment of the Governor-General of Bengal: The Act authorized the appointment of a Governor-General of Bengal who would have authority over the other presidencies in India.

4. Introduction of the Board of Control: The Act established the Board of Control in Britain to oversee and monitor the affairs of the East India Company.

5. Increase in the number of judges: The Act increased the number of judges in the Supreme Court of Calcutta.

•  Provisions in the Charter Act of 1813 :

1. End of trade monopoly: The Act ended the East India Company's monopoly on trade with India, allowing other British subjects to engage in trade with India.

2. Promotion of education: The Act made a provision for the promotion of education in India and directed the allocation of one lakh rupees per year for this purpose.

3. Permission for Christian missionaries: The Act permitted Christian missionaries to enter India and propagate their religion, lifting previous restrictions on their activities.

4. Appointment of the Bishop of Calcutta: The Act authorized the appointment of the Bishop of Calcutta to oversee the Church of England's activities in India.

5. Renewal of the East India Company's charter: The Act renewed the charter of the East India Company for another 20 years, extending its authority over British India.

These provisions in the Charter Acts of 1793 and 1813 had significant implications for the governance, trade, education, and religious activities in British India during their respective periods.

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8. Discuss the provisions in the Charter Act of 1813 and how is it different from the Charter Act of 1893?

• Provisions of the Charter Act of 1813 :

1. Trade monopoly: The Act ended the East India Company's monopoly on trade with India, allowing other British subjects to engage in trade with India.

2. Missionary activities: The Act permitted Christian missionaries to enter India and propagate their religion, lifting restrictions on their activities

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3. Education: The Act made a provision for the promotion of education and stipulated that a sum of one lakh rupees per year should be set aside for education.

4. Appointing Bishop: The Act authorized the appointment of the Bishop of Calcutta to oversee the Church of England's activities in India.

5. Renewal of the Company's charter: The Act renewed the charter of the East India Company for another 20 years, continuing its authority over British India.

• Comparison with the Charter Act of 1893 :

1. Trade monopoly: Unlike the Charter Act of 1813, the Charter Act of 1893 did not focus on trade monopoly. Instead, it aimed to provide a framework for the administration and governance of British India.

2. Legislative reforms: The Charter Act of 1893 introduced significant legislative reforms, including the expansion of legislative councils and the provision for the inclusion of Indian members in the councils.

3. Indian Councils Act: The Charter Act of 1893 is commonly referred to as the Indian Councils Act, as it primarily focused on the reform of legislative councils and the introduction of limited electoral representation.

4. Introduction of communal representation: The Act introduced the concept of communal representation, allowing for separate electorates for different religious communities in the legislative councils.

5. Provincial autonomy: The Charter Act of 1893 granted increased powers and responsibilities to the provincial governments, providing them with more control over local affairs.

6. Indian participation: The Charter Act of 1893 aimed to increase Indian participation in the governance of British India by expanding the legislative councils and allowing for limited electoral representation.

Overall, while the Charter Act of 1813 focused on trade and religious matters, the Charter Act of 1893, known as the Indian Councils Act, focused more on legislative reforms and providing limited participation to Indians in the governance of British India.

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