Constitutional History of India

The Settlement Act of 1781 authorised the Governor-General and his Council of 4 members to make Regulations for the territories under the East India Company. The Charter Act, 1833, made certain sweeping changes in the constitutional structures of the Company’s government in India. A central legislature with the Governor-General in Council was established at Calcutta and the legislative powers of the governments at Bombay and Madras were withdrawn. All legislative measures taken up by the Governor- General were to be called ‘laws’ or ‘Acts’ and until disallowed by the Crown were to have the same force as the Acts of British Parliament. The Charter Act, 1853, further improved the constitutional position by including the Law Member in the Council and by making provision for 6 legislative members in addition to 4 Councillors. The legislative business was made public and subject to a free right of discussion among the members. The bills required the Governor General’s assent before becoming an Act. Thus, the Charter Act of 1853 represents the beginnings of a “parliamentary system” in India.

Indian Council Act 1861

By this Act, the number of the member of the Governor-General’s Council was raised from 4 to 5, the fifth member being necessary for expert financial advice. Powers to make rules as to the conduct of business was also given to the Council under which portfolio system on the cabinet lines was worked out. The Governor-General can overrule the Council if in his opinion the security and safety of British interests so demanded.

For legislative purposes, the executive i.e. the Governor-General was empowered to nominate not less than 6 and not more than 12 members for a term of 2 years. One-half of such nominated members were to be non-officials i.e. those who did not hold any government office. However, the legislature existed only in name, for its power to legislate was almost nil No bill affecting revenue, defence, security, etc, could be introduced without previous sanction of the Governor-General. Further, the Governor-General was empowered to issue ordinances (a kind of legislation) for the peace and good government. Above all, the Crown could disallow any legislation.

Thus, legislative council was nothing more than the advisory committee to help the executive. Moreover, no provision was made for the inclusion of any Indians in these councils. The Indian National Congress thus demanded elected members in the councils, and the right to discuss the budget and to ask questions.

Indian Councils Act 1892

The Act increased the number of members of the legislative bodies. For the central legislature, the Governor-General could nominate not less than 10 and not more than 16 additional members. Some of the nominated members in local or provincial legislatures were elected by different associations, organisations and local bodies. Thus the principle of indirect election was introduced. The Act also permitted the discussion, though not voting, of the annual budget and asking of questions. But the overriding powers of the executive continued to be as before. The Indian political leaders demanded more reforms, viz. Indian’s participation in the law-making processes, and, a responsible government.

Evolution of Responsible Government in India

The Indian Council Act of 1909 was based on the scheme drawn by Lord Minto and Lord Morley. The Act was intended to popularize legislative councils so as to bring them into harmony with the dominant sentiments of the people of India. The Act took a further step towards representative legislatures. The most important aspect of the Act was the increase of the representative element in the legislative councils and the extension of their powers. It made no changes in the composition or power of the executive councils. The main changes were:-

(i) The legislative member in the central legislature were increased from 16 to maximum 60. The number of such members in the provincial councils of Madras, Bombay and Bengal was also increased.

(ii) The members were to be drawn from various categories and classes of persons – ex-officio member (Governor-General and other members of his council), nominated members (official
and non-official), and elected members. The elected members were to be chosen from different classes, interests and communities e.g. landlords, traders, universities, muslims, etc. However, the members were to be elected indirectly. The non-official members in the provincial council elected the members for the central legislature.

(iii) The powers of the legislature were extended to serious discussion on budget. Any members could move resolutions proposing alteration in the budget or on any matter of public interest though the government was not bound by such resolutions even if passed. Questions and supplementary questions could be asked in the legislatures on matters other than foreign affairs, military and political affairs, etc.

(iv) The Act was accompanied by a declaration that an Indian could in be included in the Governor-General’s Council, but it could never be implemented.

Though the Act of 1909 made a considerable improvement in the legislative business and output and provided a useful training for both politicians and officials in the field of responsible government, it failed to check the propaganda for self-government/responsible government and did not afford any answer to Indian political problems. The Act suffered from a number of defects –

(i) Ineffective legislatures – The legislatures had no real and effective power, because the executive was irremovable and was not responsible to the legislatures; moreover, legislation by them was subject to veto by the Governor-General and Governors.

(ii) No true representation of Indians – The large majority of the official members and nominated non-officials (who being under obligation to the government) was overwhelming enough to prevent the Indians otherwise elected to the councils to voice their feelings.

(iii) Defective electoral system – The elected members were indirectly  elected. The British believed that India was not suitable for general elections. Further, the election system based on communal categories was a dangerous trend-setter. It was a deliberate attempt to create antagonism between Hindus and Muslims.


The entry of extremists into the ranks of the Congress intensified the pace of legislative reforms. The moderate leaders like Gokhale, Gandhi and Dadabhai Naoroji were overshadowed by the extremists like Tilak, and Bipin Chandra Pal. Tilak proclaimed: “Swaraj is my birth right”.

On August 20, 1917, Montagu, the then Secretary of State for India, announced that “the policy of His Majesty’s Government, with which the Government of India is in complete accord, is that of increasing association of Indians in every branch of the administration, and the gradual development of self-governing institutions with a view to the progressive realisation of responsible government in India as an integral part of British Empire.” The Montagu along with Lord Chelmsford, the then Viceroy, submitted a report known as Montagu-Chelmsford Report. On the basis of this report, the British parliament passed the Government of India Act in 1919.

The Act was the ‘first comprehensive constitutional document of India’. Its preamble specifically emphasized maximum autonomy to the provinces as a step towards self-government. It made considerable changes in the central executive and legislature and provincial executive and legislatures.

(A) The Central Government

(1) Central Executive – The superintendence, direction and control of the government of India was vested in the Governor-General-in Council. The limitation as to the number of the members of  the council was removed. No specific provision was made for the inclusion of any Indian in the council. Similarly, there was no provision that the executive will be responsible to the legislature.

(2) Central Legislature – The legislature styled as the “Indian Legislature” consisted of the Governor-General and two houses, hold the Council of State and the Legislative Assembly. The central legislature thus made bi-cameral or two-chambered.

The Council of State consisted of 60 members nominated or elected under the rules, of whom not more than 20 were to be official members. The Legislative Assembly consisted of 143 members, out of which 100 will be elected while the remaining 40 will be nominated of whom 26 were to be official members. The term of the Council was 5 years and of the Assembly 3 years subject to early dissolution or further extension by the Governor-General.

The central legislature was given wide powers of legislation including power to amend or repeal laws of British Parliament, and an increased control over the executive. However, still, the executive controls the working of the central legislature –

(i) Governor-General could reject or refuse leave to introduce a bill in the legislature.

(ii) He could approve any bill otherwise rejected by or defeated in the House. Similarly, refuse any bill passed by the legislature.

(iii) He could allow the grants or expenditure rejected or reduced by the House.

(iv) He could also legislate through ordinance during emergency.

(V) There were some subjects which were made non-votable and could not be discussed in the House.

(B) Provincial Government

The presidencies of Bengal, Bombay and Madras and the provinces of Assam, Bihar and Orissa, the Punjab and U.P. were declared as “Governor’s province”.

(1) Provincial Executive – Dyarchy or dual government was introduced in the provinces. The legislative subjects assigned to the provinces were divided into reserved and transferred subjects. Subjects of vital importance such as revenue, administration of justice, police, mineral resources, etc. were kept reserved while subjects like local self-government, public health, education, etc. were transferred. The reserved subjects were administered by Governor-General-in-Council, while the transferred subjects by Governor acting with ministers who were selected from amongst the legislators.

The dyarchy system failed because of the various defects in it –

(i) There was no joint or collective responsibility possible in the kind of arrangement stated above.

(ii) There were frequent conflicts between the two wings of administration. The division of the subjects was not mutually exclusive and frequently they overlapped.

(iii) The ministers were under full control of the Governor who could dismiss them at pleasure. Further, ministers were not answerable to the legislature. Thus, they cared less for the legislative members and more for the Governor.

(iv) Finance was in the control of the Governor in Council, while the heads of expenditure were in the hands of the ministers. No ministry could function well unless it got money. Thus, ministers were always at the mercy of the Governor.

(v) Civil servants held their office during the pleasure of the Crown and were not subject to ministerial control. They often did not cooperate with the ministers and did not even give them due respect. The ministers who had to depend upon these officials found it difficult to function.

(2) Provincial Legislature – The Legislative Councils consisted of the members of executive council and other elected or nominated members as provided by the Act. The elected members represented various communities according to the fixed quota.

The legislative councils were given wide powers of legislation including the control over financial matters. However, like Centre, the legislatures in the provinces were also subject to the overriding powers of the executive (i.e. Governor) which again was a denial of self government.

The Government Of India Act 1935

The Act of 1919 did not introduce federalism in India. Devolution of power to the Provinces was by way of delegation to them from the Centre. The Centre retained its competence to legislate on any matter throughout the country. It was the Governor-General-in Council, and not the courts, who had the authority to decide whether a particular topic was a Central or a Provincial matter. On the whole, therefore, the structure of the Government remained unitary. The agitation for Self Government continued viz. boycott of the Simon Commission, launching of civil disobedience movement, etc.

To break the impasse and discuss the constitutional reforms, three Round Table Conferences were held in England out of which first two failed but in the last some agreement was reached and at the end of it a White Paper was issued. The White Paper seeks the establishment of a federation with autonomous provinces, and the creation of responsible government at the Centre as well as in the provinces.

The Government of India Act, 1935 was an elaborate Act and established a federal system of Government in India.

Basic Features of the Federalism

(1) An All-India federation was established by the union of provinces of the British India and the Princley States. The Princley States were given freedom to become member of the federation by executing an instrument of accession.

(2) The Act created three lists of subjects: (a) Federal List contained the important items such as armed forces, currency, foreign affairs, railways, etc. (b) Provincial List included subjects of
local importance such as public order, justice and courts, police, etc. (c) Concurrent List included subjects like Civil and Criminal Procedures, Evidence, Marriage, etc. The Centre had exclusive jurisdiction regarding Federal List, while the Province had for Provincial List. For Concurrent List, both could legislate. Residuary subjects were left to the discretion of the Governor- General who could allot them either to the Centre or to the Provinces as he thought fit.

(3) No responsible government was provided at the Centre as much as the Governor-General was given certain powers over and above the advice of the Ministers.

(4) In the provinces, responsible government was established as the Aunt Governor had to act, generally on the advice of the Council of Ministers. The system of dyarchy was abolished. The provinces were made completely autonomous in regard to the provincial subjects. The administration of the provinces was to be in the hands of the popular ministers. Thus, provincial autonomy was established.

(5) However, the central government had large control over the provinces bringing the structure to a quasi-federal system. In a truly federal system, there is a complete division of powers between Centre and States and the States are independent units.

(6). The federal legislature was a peculiar body in so far as upper house was directly elected and lower house indirectly.

(7) The pre-condition for federation was the consent of half of the Indian States which meant at least 300 States.

Structure of the Government
(A) Central or Federal Government

(1) The Executive – A kind of dyarchy was introduced at the centre, i.e., the Governor-General had to act in two different capacities. With respect to the Governor’s provinces, he was the Governor- General and with respect to the Princley States he was the Crown’s representative. Further, in the exercise of his function, he was assisted by the Councillors (Executive Council) or by the Ministers.

The powers of the Governor-General were three-fold:

(a) Discretionary powers – He was not bound to consult the ministers and could act in any manner on subjects like external affairs, defence, administration of tribal areas, etc.

(b) Individual judgment powers – He was bound to consult his ministers but was not bound by their advice.

(c) Powers to be exercised on the advice of ministers.

The various types of powers of the Governor-General were as follows –

(i) Executive powers – The Governor-General appointed the governors and the ministers. Important portfolios were under his direct control.

(ii) Legislative powers – The Governor-General could issue ordinances.

(iii) Financial powers – He could decide votable and non-votable ohne 15h lists of expenditures. He could reject any demand made by the legislature.

(iv) Emergency powers – When he was satisfied that Government could not be carried out in accordance with the provisions of the Act, he could assume all functions to himself by declaring an emergency.

(v) Special responsibilities – e.g., interests of minorities, interests of the public services, protection of the rights of any Indian State, etc.

(2) The Legislature – The federal legislature was to consist of the king, represented by the Governor-General, the Council of State, and, the Legislative Assembly.

The Council of State was having 260 members – 156 representative of British India and 104 representatives of Indian States. The Legislative Assembly was to consist of 375 members – 125 representatives of the Indian States nominated by the rulers of the States and 250 representatives of British India elected by the provincial assemblies.

The election was on communal basis and the method was proportional representation with single transferable vote. The two houses were to have equal powers except in financial matters where the Legislative Assembly could exercise more powers. While the Council of State was a permanent house, the duration of Legislative Assembly was of 5 years.

(3) The Federal Court – A federal court was established at Delhi to decide any dispute between the Centre and States or between the States inter se. The court was to consist of a Chief Justice and not more than 6 other judges. They were to be appointed by His Majesty’s Government and to hold office during good behavior. The retiring age was 65. A person could be appointed a judge of the federal court if he had been a judge of a High Court for 5 years or a pleader in an Indian High court for 10 years or a barrister for 10 years.

No judge could be removed earlier except on the ground of misbehaviour or infirmity of body or mind, if the Judicial Committee of the Privy Council, on reference by His Majesty, recommended the removal.

The Federal Court had original, appellate and advisory jurisdiction. In its original jurisdiction, it was a truly federal court and decide disputes between the Centre and States or between States inter se. In its appellate jurisdiction, it heard appeals from the decisions of various High Courts when the case related to some constitutional provisions or when the High Court granted a certificate that the case is fit for appeal. Under its advisory jurisdiction, the Governor-General could refer to the court any point of law and seek its advice on it.

The Federal Court was the highest court in India and could make rules and regulations concerning its own business and for the subordinate courts. Appeals against the judgment of Federal Court could go to the Privy Council.

(B) The Provincial Government

(1) The Executive – The executive consisted of the Governor and his Council of Ministers. The Governor was given powers on the pattern of Governor-General.

(2) The Legislature – Provinces differed in the composition of in legislatures. Some provinces had bicameral system, and some had one Assembly. Where there was the upper house, it was called the Legislative Council and the lower house was called the Legislative Assembly.

The members of the Assembly were elected directly by the people on the communal basis or through various bodies. The members of the Council were elected by the general constituencies and some of them were nominated by the Governor. The right to vote was restricted on the basis of economic and educational qualifications and only about 14% of the total population enjoyed this right.

Working of the Act of 1935

The Indian National Congress condemned the Act as ‘totally disappointing’. At Centre, the Act did not come into force at all. In regard to Provinces, elections were held and the Congress party secured majority. The Congress agreed to form ministries in provinces only after an assurance was given that the Governor-General and the Governors would not interfere in their functioning. Later, these ministries resigned and the administration of provinces was taken over by Governors.

The Act suffered from many defects which made it impossible to bring its provisions into operation –

(i) Defective federation – In the federal legislature, States were given disproportionate weightage. Indirect elections to the popular House was another major defect. Further, elections on the basis of communal representation was detrimental to the ideals of secularism and democracy which the Indian leaders were fighting for.

(ii) No real autonomy – The Governor-General and the Governors were all powerful. They enjoyed special and discretionary powers. They could veto the legislative action and legislate on their own. They had full control over the finances, civil services and police. Further, ministers were selected and dismissed by them.

(iii) Dual system of government – The dual system was against the idea of the popular government.

(iv) Absence of any provision for self-government – The foreign rule was to continue as before, only a few popularly elected ministers were to be added. The British motive was to provincialise the Congress and to weaken its all-India leadership.

Neverthless, the 1935 Act was significant as it provided the groundwork for negotiations for the final transfer of power. The Act was an elaborate one and established the federal system of government in India. In fact, many of the provisions of the Indian Constitution are modelled on the Act of 1935.

Constituent Assembly

In 1946, the Constituent Assembly was set up to draft a Constitution for independent India. The members of the Constituent Assembly were elected by the members of the Provincial Assemblies. The members of each Provincial Assembly were to be divided into two groups – General and Muslim, except in Punjab where sikh also formed a group.

After the passage of the Indian Independence Act, 1947, the Central Legislature ceased to exist on the 14th August, 1947. Henceforth, the Constituent Assembly was to function as the Central Legislature of India as well until the new Constitution was framed and a new Legislature was constituted.

The new Constitution of India was adopted on November 26, 1949, and it became fully operational with effect from January 26, 1950. The first Parliament and the first State Legislatures constituted under the Constitution started functioning in 1952.


Also Read History of British settlement of Bombay and development of its administration of justice before 1726
Also Read Charter of 1726
Also Read Mayor’s Court under the Charter of 1687 and 1726
Also Read Charter of 1753
Also Read Regulating Act, 1773
Also Read Trial of Raja Nand Kumar
Also Read Warren Hastings Judicial Plan of 1772 and 1774
Also Read Judicial plan of 1790 and 1793
Also Read Judicial Reforms of Lord William Bentinck
Also Read Patna Case
Also Read Kamaluddin Ali Khan Case
Also Read The Act of Settlement 1781
Also Read Salient features of Mohammedan Criminal Law
Also Read Development of Criminal Law in India before the codification of I.P.C., 1860
Also Read History of writ jurisdiction in India
Also Read History of appeals to Privy Council from India
Also Read Recommendations made by First Law Commission in India
Also Read Main provisions of Indian High Court Act 1861
Also Read Federal Court: Its Constitution and Jurisdiction
Also Read Supreme Court of India: Establishment, Constitution and Jurisdiction
Also Read Main provisions of Government of India Act 1919
Also Read Main Provisions of Government of India Act 1935
Also Read Main Provisions of the Indian Independence Act 1947
Also Read Recorder’s Court
Also Read Simon Commission
Also Read East India Company Act or Pitt’s India Act 1784
Also Read Grant of Diwani
Also Read Second Law Commission
Also Read Choultry Courts
Also Read Main Provisions of Indian Council Act 1861
Also Read System of Administration and Justice at Surat before 1726
Also Read History of British Settlement of Madras and its Judicial Institutions Development
Also Read Cossijurah Case
Also Read Constitution and Recommendations of Third Law Commission
Also Read Supreme Court established in 1774 under the Regulating Act 1773
Also Read Constitutional History of India
Also Read Codification of Law in India
Also Read Introduction of English Law in India
Also Read Writ Jurisdiction of the High Courts before the commencement of the Constitution
Also Read Judicial System in British India after the Abolition of the Presidency Supreme Court and the Adalat System
Also Read Supreme Court at Calcutta
Also Read Administration of Justice in British India




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