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How British laws guided the creation of the Indian Constitution

The final Constitution that came out in 1949 drew voluminously from the principles of governance that prevailed in ancient India

1. Edwin Samuel Montagu, 2. Lord Cornwallis, 3. John Morley, 4. Lord Minto, 5. Warren Hastings, 6. Lord Chelmsford

Rome was not built in a day; nor was the Constitution of India. Nor was it made just in the Constituent Assembly. It was discussed, debated, crafted and shaped in the assembly, but several stones in its foundation had been laid and layered over, over several thousand years.

The final Constitution that came out in 1949 drew voluminously from the principles of governance that had prevailed in ancient India and from the modern structures and a broad framework created during the European period.
Though rulers were often foreign, the doctrine—of ruling the people with their laws—was recognised even in the early days of the East India Company rule. This was often overlooked or violated by the courts themselves.

The final Constitution that came out in 1949 drew voluminously from the principles of governance that had prevailed in ancient India, from the traditions that had evolved in the medieval Islamic period, and from the modern structures and a broad framework created during the European period. The doctrine that people ought to be governed by the people’s laws, and not by the rulers’ laws, had been recognised in the ancient Janapada republics, in England’s Magna Carta and in the decrees of the first Sultan Iltutmish in medieval India. It was in continuation of this doctrine that “we the people”, on the 26th day of November 1949, “adopt[ed], enact[ed], and g[a]ve to ourselves this Constitution”.

Though rulers were often foreign, the doctrine—of ruling the people with their laws—was recognised even in the early days of the East India Company rule, as it had been during the Hindu period and the Islamic period. In other words, Indians were ruled with their laws, and the few Europeans in India by their laws. This was often overlooked or violated by the courts themselves, as illustrated in the infamous Raja Nancomar (Nand Kumar) case in which an Indian nobleman was tried, convicted and executed by applying English law. The legality of the trial—over this and several other issues—would later be questioned during the impeachment of both the first governor-general (Warren Hastings) and the first chief justice (Elijah Impey) in the British parliament, and also later by the liberal intelligentsia in England, including Lord Macaulay.

Suffice it to say, since the running of the administration was in the hands of a few company officials, its implementation on the ground was largely done in their interests. All the same, several acts came to be passed, several laws implemented, and several conventions created, most of them in the interest of the rulers but many of them also checking the excessive powers of the rulers and carrying progressive elements. A few milestone laws in that path:

THE REGULATING ACT, 1773

This may be called the earliest attempt at creating the framework of modern Indian governance. After winning the battles of Plassey and Buxar, the company’s governor in Bengal (then Warren Hastings) was elevated as governor-general with supervisory powers over the presidencies of Madras and Bombay. This could be called the beginning of the modern Indian federal arrangement.

The governor-general had a council to advise him, and he was bound by the advice of the council which took decisions by majority vote—an arrangement that could be called a combination of the legislature and executive. However, a judiciary that was independent of the legislature-executive was founded with the simultaneous creation of a Supreme Court—the beginning of separation of judiciary from the legislature-executive. This arrangement was refined through the Settlement Act of 1781 and the Pitt’s India Act of 1784.

ACT OF 1786

At the instance of Governor-General Cornwallis, who was also a soldier, the army was brought under the purview of the governor-general—the beginning of the tradition of the head of state being the supreme commander of the armed forces.

CHARTER ACT, 1793

Several powers of the provincial governors were cut, and given to the governor-general—the beginning of today’s quasi-federal arrangement. The introduction of a preamble, authored by Cornwallis, to the codified laws marked another beginning. Since then, most law codes, and finally the Constitution, too, came to have a Preamble.

Signed and sealed: Nehru signs the Constitution.

The Charter Acts of 1813, 1833, and 1853 curbed the powers of the Company, and expanded the powers of the British parliament over the administration of India. The 1833 Act was also followed with the establishment of the First Law Commission of India, headed by Lord Macaulay, which would draft the Indian Penal Code, replaced last year with the Bharatiya Nyaya Sanhita.

CHARTER ACT, 1853

Though the judiciary had been independent and separate right from the beginning, that wasn’t the case between the legislature and the executive. The Charter Act, 1853, addressed the lacuna with the introduction of a four-member executive council, and a 12-member law-making council (of course, not elected by the people). The second law commission also came to be set up, now headed by Sir John Romilly.

ACT OF 1854

As new territories, such as Punjab, large tracts in the Ganga-Yamuna doab and central India, came to be annexed and added to the company’s holdings, an arrangement was made for direct rule by the governor-general. Being outside the three presidencies which had their governors and governing councils, these territories came to be administered by chief commissioners appointed by the governor-general and taking orders directly from him. This may be viewed as the forerunner to the current arrangement of having Union territories.

GOVERNMENT OF INDIA ACT, 1858

Till now India was ruled by the Company with laws made by the British parliament. Following the revolt of 1857, the country came directly under the king’s (the British government’s) rule. The governor-general was also nominated as the king’s representative, viceroy.

It was also proclaimed that the government would not interfere in matters of people’s faiths, and that neither caste nor faith would come in the way of a person’s entry into government service—a principle that continues to be followed. According to Justice Rama Jois, the proclamation was so worded as to reflect the realisation that without “the sympathy and support of the people of India”... it was “impractical to rule this vast country smoothly”.

INDIAN COUNCILS ACT, 1861

Acting on the realisation that it was a governance system that kept the people out that had led to the resentment and revolt, the government now moved to include six to 12 Indians in the legislative council. The Act also provided for all Acts passed by the council to be ratified by the viceroy before it became law, and also empowered the viceroy to issue ordinances on urgent matters. Both these powers are vested in the president now.

Subsequently, another law was passed setting up high courts in the provinces, and also the Council Act of 1892 that expanded the powers of the legislative council and the number of Indian members in it.

MINTO-MORLEY REFORMS OR THE INDIAN COUNCILS ACT, 1909

The country-wide protest, often violent, against Lord Curzon’s partition of Bengal on communal lines forced the government to come up with the Minto-Morley Reforms or the Councils Act of 1909. It not only increased the number of Indian members in the council, but also provided for a large number of them coming in through indirect elections. This was perhaps the first instance that the principle of election to a legislative body came to be recognised during the colonial period. However, the provision for communal electorates in the Act would sow the seeds for the polity to be divided on Hindu-Muslim lines.

MONTAGU-CHELMSFORD REFORMS OR GOVERNMENT OF INDIA ACT, 1919

The feeling that the British were bent on going back on the promises of political rights that they had made before and during World War led to widespread resentment and protests, as also acts of repression as witnessed at Jallianwala Bagh. The reforms suggested by the Montagu-Chelmsford committee led to the Government of India Act, 1919, which not only expanded the central legislature but also made it bicameral. In case of a divergence of views between the houses, provision was made for their joint sitting, and member’s tenure was made five years. All three continue to this day.

However, the provision that gave the governor-general (and the governor in the province) the power to overrule the legislatures led to a system of dyarchy.

GOVERNMENT OF INDIA ACT, 1935

This Act is considered the most significant step forward towards responsible self-government, and also the final and most comprehensive forerunner to the Constitution. A rudimentary federal arrangement came in place of the highly centralised system of governance. Several of the institutions and provisions that would feature in the later Constitution had been provided for in this Act—apportioning of legislative powers as federal list, provincial list and concurrent list, a legislature with a lower house of members elected by the people and an upper house that represented the provinces, a federal court and high courts in provinces and so on.

While several of these Acts might appear progressive and liberal in principle, all these were enacted and implemented primarily in the interest of the continuation of the colonial and later imperial administration. Moreover, in actual practice, invocation of several of the progressive measures were vetoed by the governors-general and the governors. All the same, the immense experience of statecraft that these institutions and measures imparted did go a long way in guiding the founding fathers to conceive and create an extremely progressive constitutional system.

And, of course, the essential point of departure—the above acts were all passed by a legislature that had no or little representation of the people over whom these laws were to apply; the Constitution was created by a body that represented the people of India and which was authorised by the people to adopt, enact and give to themselves a Constitution.