Constitutional History of India

 Constitution of India Bill 1895 (Swaraj Bill)

 The Indian Councils Act 1909
 The Government of India Act 1919
 Nehru Report 1928
 Karachi Resolution 1931
 The Poona Pact 1932
 The Government of India Act 1935
 Sapru Committee Report 1945
 Cabinet Mission Plan 1946
 Fundamental Rights

• Right to equality – Article 14 to 18

• Right to freedom – Article 19 to 22
• Right against exploitation – Article 23 and 24
• Right to freedom of religion – Article 25 to 28
• Cultural and educational rights – Article 29 and 30
• Right to constitutional remedies- Article 32 to 35
Article 31 stands repealed.
 Constitutional Developments
Constitution of India Bill 1895

The Constitution of India Bill 1895, also referred to as The Home Rule Bill or Swaraj Bill, was written during the emergence of Indian nationalism and
was influenced by Bal Gangadhar Tilak – who was the force behind calls for ‘Swaraj’.
This document attempted to outline a constitutional vision for India. it was written in a legal style and contained 110 articles. It covered a number of
individual rights – right to free speech, right to property, right to privacy, right of franchise, equality before the law etc. and also touched upon structures of
government and separation of powers.
It is considered as first non-official attempt at drafting a Constitution for India as well as the first articulation of a constitutional imagination by Indians. It is
also considered as a critical document in the constitutional history of India.
The Indian Councils Act 1909
The Indian Councils Act 1909, commonly known as the Morley–Minto or Minto–Morley Reforms, was an act of the Parliament of the United Kingdom that
brought about a limited increase in the involvement of Indians in the governance of British India.
The Act was a relatively short document, consisted of eight articles and two schedules, and was written in a legal style. Its core feature was the recognition
of the principle of elections of members to the central and provincial legislative councils.
It considerably increased the size of the legislative councils, both Central and provincial. The number of members in the Central Legislative Council was
raised from 16 to 60. The number of members in the provincial legislative councils was not uniform.
The elected members were to be indirectly elected. The local bodies were to elect an electoral college, which in turn would elect members of provincial
legislatures, who in turn would elect members of the central legislature.
It provided (for the first time) for the association of Indians with the executive Councils of the Viceroy and Governors. It also provided for the separate
representation of presidency corporations, chambers of commerce, universities and zamindars.
It introduced a system of communal representation for Muslims by accepting the concept of ‘separate electorate’. Under this, the Muslim members were to
be elected only by Muslim voters and it legalized Communal Electorate for the first time in India.
 The Government of India Act 1919
It extended the principle of communal representation by providing separate electorates for Sikhs,
Indian Christians, Anglo-Indians and Europeans. It granted franchise to a limited number of people on the
basis of property, tax or education.
It relaxed the central control over the provinces by demarcating and separating the central and
provincial subjects. The central and provincial legislatures were authorised to make laws on their
respective list of subjects. However, the structure of government continued to be centralised and unitary.
It further divided the provincial subjects into two parts– transferred and reserved. The transferred
subjects like, local self-government, education, public health, public works, and agriculture, forests, and
fisheries were to be administered by the Governor with the aid of Ministers responsible to the legislative
council. The reserved subjects like, judiciary, police, land revenue, and irrigation etc. on the other hand,
were to be administered by the Governor and his executive council without being responsible to the
legislative council. This dual scheme of governance was introduced for the first time under this Act.
However, this experiment was largely unsuccessful.
It introduced, for the first time, bicameralism and direct elections in the country. The Indian
legislative council was replaced by a bicameral legislature consisting of an Upper House (Council of State)
and a Lower House (Legislative Assembly). The majority of members of both the Houses were chosen by
direct election.
It provided for the establishment of a public service commission and a Central Public Service
Commission was set up in 1926 for recruiting civil servants.
It separated, for the first time, provincial budgets from the Central budget and authorised the
provincial legislatures to make their own budgets.
It provided for the appointment of a statutory commission to inquire into and report on its working after
ten years of its coming into force.
 Nehru Report 1928
The Nehru Report 1928 was a proposal for a new dominion status and a federal set-up of
government for the constitution of India. It also proposed for the Joint Electorates with
reservation of seats for minorities in the legislatures.
All powers of the government and all authority – legislative, executive and judicial would
be derived from the people and the same shall be exercised through organisations
established by, or under, and in accord with, this Constitution.
There shall be no state religion; men and women shall have equal rights as citizens. There
should be federal form of government with residuary powers vested in the centre.
It included a description of the machinery of government including a proposal for the
creation of a Supreme Court and a suggestion that the provinces should be linguistically
determined.
It did not provide for separate electorates for any community or weightage for minorities.
Both of these were liberally provided in the eventual Government of India Act 1935.
However, it did allow for the reservation of minority seats in provinces having a minorities
of at least ten percent, but this was to be in strict proportion to the size of the community.
 Karachi Resolution 1931
The Karachi session was presided by Sardar Patel. The congress adopted a
resolution on Fundamental Rights and Economic Policy of India.
Important aspects of the resolution:
1. Provision for basic civil rights of freedom of speech, Freedom of Press,
Freedom of assembly, Freedom of association, Equality before law.
2. Provision for elections on the basis of Universal Adult Franchise
3. Free and compulsory primary education.
4. Substantial reduction in rent and taxes
5. Better conditions for workers including a living wage, limited hours of
work.
6. Protection of women and peasants
7. Government ownership or control of key industries, mines, and transport.
8. Protection of Minorities.
 The Poona Pact 1932
On August 16, 1932, the British Prime Minister, Ramsay MacDonald, announced
the Communal Award on the basis of The Government of India Act 1919 which
provided for separate electorates for the ‘Depressed Classes’, the Muslims, the
Europeans, the Sikhs, the Anglo-Indians and the Indian-based Christians.
Under a separate electorates system, each community was allocated a number of
seats in the legislatures and only members from these communities would be
eligible to vote to elect a representative of the same community to legislative
assemblies.
The pact (September 24, 1932) was an agreement between Hindu leaders in India
granting new rights to Dalits. It was an effort to resolve the various tensions
between communal interests which resulted from the Communal Award of August
16, 1932 (A proposal by the British government to allot seats in the various
legislatures of India to the different communities).
This pact made the entire country morally responsible for the upliftment of the
depressed classes. It was one of the largest affirmative programme providing
reservation in legislature, public services and educational institutions which was
launched later in the making of the Indian Constitution.
 The Government of India Act 1935
After the Act of 1919, the Government of India Act 1935 was the second
important development in the framing of the Indian constitution.
Some of the key features of the Act were:
• The creation of a ‘Federation of India’ that consisted of two levels: a
central executive and parliament, and below it, provinces and princely
states.
• It discarded the ‘dyarchy’ system at the provincial level and the same was
introduced at the central level. key subjects like defence and foreign affairs
were under the direct control of the Governor General.
• A federal court was established.
• Separate electorates were provided for Muslims, Sikhs and others, but not to
Depressed Classes.
• Governor-General was given vast administrative, legislative and financial
powers. He was given very wide discretionary powers not only of
legislation but also certain powers over the legislatures.
 Sapru Committee Report 1945

The Sapru committee report was published in 1945. This committee

recommended that the Fundamental Rights “must” be included in the
Constitution of India.
This committee divided fundamental rights into two parts viz.
Justifiable Rights and Non-justifiable rights.
The Justifiable rights were those enforceable by a court of law. These
enforceable rights were incorporated in the Part III of the Constitution.
The non-justifiable rights were incorporated as a directive to the state to
take all measures to provide those rights to individuals without any
guarantee. They were incorporated in the Part IV of the constitution
and were called Directive Principles of State Policy.
 Cabinet Mission Plan 1946
The Cabinet Mission Plan was a statement made by the Cabinet Mission and the Viceroy, Lord Wavell, on May
16, 1946, that contained proposals regarding the constitutional future of India.
In September 1945, the new elected Labour government in Britain expressed its intention of creating a
Constituent Assembly for India that would frame India’s Constitution and the Cabinet Mission was sent to
India in March 1946 for this purpose.
The Mission had to deal with a major obstacle: the fundamental differences of the two main political parties-
the Indian National Congress. The Muslim League wanted the Muslim majority provinces of India to constitute
a separate sovereign state of Pakistan, the Congress wanted a united India.
Objectives of Cabinet Mission
• To obtain an agreement with the Indian leaders as to the framing of a constitution for India.
• To formulate a constitution-making body (the Constituent Assembly of India).
• To establish an Executive Council with the support of the major Indian parties
The Mission attempted to facilitate an agreement between them at the Shimla Conference and when it failed, the
Mission came out with its own proposals known as the Cabinet Mission Plan.
The Plan contained twenty-four points and amongst them Point 15 is considered as very important as it
described the basic form of the future constitution of India.
Point 15 consists of six sub-points that proposed the basic form of the Constitution of India; strikingly, all relate
to the federal structure of India.
 Point 15 of the Cabinet Mission Plan 1946
We recommend that the Constitution should take the following basic form:

(1) There should be a Union of India, embracing both British India and the States which should deal with the following
subjects: Foreign Affairs, Defence, and Communications; and should have the powers necessary to raise the finances required
for the above subjects.

(2) The Union should have an Executive and a Legislature constituted from British Indian and State’s representatives. Any
question raising a major communal issue in the Legislature should require for its decision a majority of the representatives
present and voting of each of the two major communities as well as a majority of all members present and voting.

(3) All subjects other than the Union subjects and all residuary powers should vest in the Provinces.

(4) The States will retain all subjects and powers other than those ceded to the Union.

(5) Provinces should be free to form groups with Executives and Legislatures, and each group could determine the Provincial
subjects to be taken in common.

(6) The Constitutions of the Union and of the groups should contain a provision whereby any Province could by majority vote of
its Legislative Assembly could call for a reconsideration of the terms of the Constitution after an initial period of ten years and
at ten-yearly intervals thereafter.
 Effects of the Cabinet Mission Plan 1946
The Congress Party wanted a strong centre with minimum powers for the
provinces whereas the Muslim League wanted strong political safeguards for the
Muslims like parity in the legislatures.
The Muslim-majority provinces were grouped into two groups and the
remaining Hindu-majority in one of the groups. The Congress was not keen on the
idea of the groupings of provinces on the basis of Hindu-Muslim majority. It was
also against the idea of a weak centre. The Muslim League did not want any changes
to the proposals.
The plan was not accepted, a new plan was proposed by the mission in June 1946.
This plan proposed the division of India into a Hindu-majority India and a
Muslim-majority India later to be renamed Pakistan. A list of princely states was
also made that could either join the union or remain independent.
The Congress Party did not accept the second plan. Instead, it agreed to be part of
the constituent assembly. The Viceroy invited 14 men to form the interim
government. There were 5 from the Congress, 5 from the League, 1 member each
representing the Sikh, Parsee, Indian Christian and scheduled caste communities.