CHAPTER 1 THE HISTORICAL BACKGROUND ‘THE very fact that the Constwution of the Indian Republic is the Uutity ora, Product not of a pola revolution’ but of the Blo, ss feated! Fesearch and ‘deliberations of a. body of eminent apects representatives of the people who sought to improve lupon the existing system ‘of administration, makes a retrospect of the constitutional development indispensable for'a pro understanding of this Constitution. = ee Practically the only respect in which the Constitution of 1949! differs from the constitutional documents of the preceding two centuries is that while the latter had been imposed by an imperial power, the Republican Constitution was made by the people themselves, through representatives assembled in a sovereign Constituent Assembly. That explains the majesty and ethical value of this new instrument and also the signifiéance of those of Its provisions which have been engrafted upon the preexisting system. For our present purposes we need not go beyond the year 1858 when the Brtsh Crown ssumed sovereignty over Ina from the East India jovernment of Company, and Parliament enacted the fst statue for SeaieTRet'thsa, °" the governance of India under the direct rule ofthe Briush Government—the Government of India Act, 1858 (21 & 22 Viet, c. 106). This Act serves as the starting point of our survey esate it Was dominated by the principle of able imperial control without any. popular participation in the administration of the Country, while the subsequent history up to the making of the Constution i fone’ of gradual relaxation of imperial control and the evolution of responsible government. By this Act, the powers of the Crown were to be exercised by the Secretary of State for India asisted by a Council of fiteen members (known as the Council of India}. The Council was composed exclusively of people from England, some of whom were nominees of the ‘Crown while Others were the representatives of the Directors of the East Inala Co, ‘The Secretary of Sate. yno was reponse 10 the, Bash Parliament, governed India through the Govemor General assisted by an Executive Counc, which conssted of high officals of the Government The essential features of the system? introdueed by the Act of 1858 a) Thracian of ne cory wl ily lias bt ighly centred’ “Though te terior). wsdl, Provinows wih Governor Lasinant Governor alded by ha Execuve Counc at te (3)4 INTRODUCTION TO THE CONSTITUTION OF INDIA (CHAP. L head of each of them, the Provincial Governments were mere agents of the Government of India and had to function under the superintendence, direction and control of the Governor-General in all matters relating to the ‘government of the Province? (0) There was no separation of functions, and all the authority for the governance of India—civil and military, executive and legislative, —was Vested in the Governor-General in Council who was responsible to the Secretary of State? (c) The control of the Secretary of State over the Indian administration wos absolute, The Act vested in him the ‘superintendence, direction and Control of all acts, operations and concems which in any way related to the Government or revenues of India’. Subject to his ultimate responsibility 10 the British Parliament, he wielded the Indian administration through the Governor-General as his agent and his was the last word, whether in matters of policy of of details (@) The entire machinery of administration was bureaucratic, totally unconcemed about public opinion in India. The Indian Councils Act of 1861 introduced # grain of popular clement’ Insofar as it provided that the Governor-General. Exective ju, Council, which was s0 long compored exclusively of Tadian |, Councils Sica should include certain additions! no-offical members, wile transacting legtlaive business as a Legislative Council. But this Legislative Councll war nether representative hor deliberative in aay sense, The members were nominated and dhelr functions were confined exchsvely to. consideration of the legslave proposals placed before i by the Governor eneral. It could not, in any Ihanner, ciese the acts of the adminitalion or the conduct of the uthorides, Even in legislation, effective powers were reserved to the GovernorGenera, such a8—(a) giving prior sanction to Bill relating to cera tle, aout wich they couldnt be inuodaced i the Legislative Counell;(b) vetoing the Bills afer they were pased or reservin them for eonsiderauon of the Crown; (¢) legiating by’ Ordinances whic ‘were to have the same authority as Acts made by the Legslatve Council Similar provisions were made by the Act of 1861 for Legislative Councils in the Provinces. But even for initiating legislation in these Provincial Councils with respect to many matters, the prior sanction of the Governor-General was necessary. ‘Two improvements upon the preceding state of alfuire as regards the Indian and Provincial Legislative Councils were introduced by the Indian Couineils Act, 1802, namely that (a) though the majority of official members were retained, the non. official members of the Indian Legislative Council syere henceforth to be nominated by the Bengal Chamber of Commerce and the Provincial Legislative Councils, while the non-official members of the Provincial Councils were to be nominated by certain local bodies such as ‘universes, dstret boards, municpaites; tthe Councils were to have the power of discussing the annual statement of revenue and expenditure, ie, the Budget and of addressing questions to the Executive, Councils Indian ‘Act, 1892.ree rer =F EFeras Rage vee Char. 1] ‘THE HisTORICAL BACKGROUND 5 ‘This Act is notable for its object, which was explained by the Under. Secretary of Sate for India thus: Me “to widen the bats and expand the functions of the Gavernment of India, and to ve further opportunites the nowafficel end natice elements in Indan soe 1 Sie pti Ser ofthe Gemeae * ‘The first attempt at introducing a representative and popular element Morley-Minto re Was made by the Morley-Minto Reforms, known by See ee the sees tte ht Gert of Se inh in unc ‘MORIEY) and the Viceroy (Lord MINTO}, which Ke thoo, {tc implemented by the nian Con Ac, 100 The changes relating to the Provincial Legiiaive Councils were of souanes sum Savancn The. en of tao iacls was’ etetged by Ironing coed noel meee elle lian annoys dn sent of clcton was abs inoduced inte Leilae Coane fe (Gein ote fica ere peste To ener fico sf th Lepr, Coma wet, a Plt bear rte gener ae bey oree pe perio olor Pollspiel ie adedoiielicd by Shovloge Helatlen ena Belge, aeten. Soy te of pbc Ime save eta spied nec, such ms he ‘Atmoed Forex Povelgn Aue the inl Sater ny thea tbe pt! os "A ine en "eden invodace by the Act f 1909 vas tat provid ote het tre Tr coparen epegeenion ofa aire cahulay wl Gales we se ‘Focparatie’ abrasion tle bate arora fae cory. It can hardly be overlooked that this idea of separate electorates for the Manca cnchgeeseaach 9 sone ae iee en teas oe political party (19069) Subsequent oti, the Goverment of Indl Act, 1919 (5 & 6 Geo. V., i on pen eat oh, eae sheen oon fol Ace 2 tir Ge calusy ution caine hc gotrntae ote tris ecscutvo’ lpulcave Wat Judea Vous call Ue Mare Une oncanas ‘The neat landmark to eopitiadonal devdopment of Ida 6 he ‘netms MontaguChelmsford Report which led to the Heathen enacinent ofthe Government of Indi Act, 1919. the Government of was, in fact, an amending Act, but the amendments India Act, 1819. "introduced "substantive changes into. the existing system The Morley-Minto Reforms failed to satisfy the aspirations of the nationalists in India inasmuch 95, professedly, the Reforms did not aim at the establishment of « Parliamentary system of government in the coun and provide for the retention of the final decision on all questions in the ihands of the iesponsible Executive The Indian National Congress which, established in 1885, was so lon under the contol of Moderates, became more active during the First Worl War and started ts campaig for sligoverment(Bnown as the “Home Rule" movemen). In response 1 this popular demand, the British6 INTRODUCTION TO THE CONSTITUTION OF INDIA (CHAP. 1 Goverment made a declaration on August 20, 117, that the policy of His Majesty's Government was that of — = aes “Ince anit f Ina in every rach ofthe adatom ad the ual development of selfgoverning inatatons with & view to progressive Fealsation of responsible government in Britsh India as an ine ot Bash Empire oe The sen Secretary of Sate for Ind (MBS. Montag) andthe Governor General (Lord CHELMSFORD), entristed with the tisk of formulating proposals for cut the above policy and the Government of India ACL 19, gave legal shape to their recommendations Main. Features of ‘The main features of the system introduced the System intro. by the Government of India "Ach 1919, were as srisio. Fallows: 1 Dl x te Pens, Rona neni Pons was sought to be introduced, without responsiblity of the Govemot (hough te GovenorGenerllfor'ne edinstaion of the Province, by resorting to device known at “Dysrchy’ or dual govemment. ‘The subjects of administration were to be divided (by Rules ade under the {Act nt two categories Central and Provincia. The Centre subjects were thove which were exclasely kept under the contol ofthe Cental Government The Provincial subjecs were subdivided ino ‘ransferred’ and ‘rererved subjects ‘Of the matters assigned to the Provinces, the ‘transferred subjects’ were to be administered by the Governor with the aid of Ministers responsible to the Legislative Council in which the proportion of elected members was raised to 70 per cent. The foundation of responsible government was thus laid down in the narrow sphere of ‘transferred’ subjects ‘The ‘reserved subject’, on the other hand, were to be administered by ag’ Genecueh toa tae eae: Counc wou any spell tte Legislature, IL Relaxation of Central contol over the Provinces. As stated already, the ‘Rules made under the Government of India Act, 1919, known as the Devo- lution Rules, made a separation of the subjects’ of administration into two categories—Central and Provincial. Broadly speaking, subjects of allIndia importance were brought under the calegory ‘Central’, while matters marily relating to the administration of the provinces were classified as rovincial’, This meant a relaxation of the previous Central control over the provinces not only in administrative but also in legslative and Anancial ‘matters. Even the sources of revenue were divided into two categories $0 that the Provinces could run the administration with the aid of revenue raised by the Provinces themselves and for this purpose, the provincial budgets were separated from the Government of India and the Provincial Legislature was empowered to present is own budget and levy its own taxes relating to the provincial sources of revenue. At the same time, this devolution of power to the Provinces should not ‘be mistaken for a federal distribution of powers. Under the Act of 1919, theuae. Te HISTORICAL BACKGROUND 7 Provinces got power by way of delegation fom the Cente, The Central Legalatures therefore, eained power to legslate forthe whole of India, Telting to any sabjec, snd it war ubjet to auch paramount power of the ental Logiature thatthe Provincial Legislature got the power "wo make laws fr the peace and good government ofthe tenfris for the ume being constituting iat proving” The control of the Governor-General over Provincial legislation was also retained by a laying down that a Provincial Bil, even though assented tw by the Governor, would not become law unless assented to also by the Governor-General, and by empowering the Governor to reserve a Bill for the consideration of the Governor-General if it related to matters specified in this behalf by the Rules made under the Act. UL The Indian Legislature made more representative. No responsibilty was, however, introduced at the Centre and the GovemorGeneral in Council continued to remain responsible only to the British Parliament through the Secretary of State for India. Nevertheless, the Indian Legislature was made more representative and, for the first time, b-cameral. It was to consist of an Upper House, named the Council of State, composed of 60 members of whom 34 were elected, and a Lower House, named the Legislative Assembly, composed of about 144 members of whom 104 were lected. The powers of both the Houses were equal except that the power (0 vote supply was given exclusively to the Legislative Assembly, The electorates were, however, arranged on a communal and sectional basis, developing the Morley-Minto device further. The Governor General's overriding powers in respect of Central legis: tion were retained in the following forme (his pro sanction Was required to ingoduce Bl relating to certain inter (@) he had the power to veo or reserve for consideration ofthe Crown any Bll pased by the Indian Legile ture fi) be had the eonverse power of ceriyng any Bill oc any. grant feftned wo be pased or made By the Legiatre in which case it would Trave the same elect as if twas passed or made by the Legislature (o) he ould make Ordinances, having the force of law for a temporary period, in cs of emergency ‘The Reforms of 1919, however, filed to full the aspiration of the neat people in India, and led to an agkation by the Regererifie Cine (then under the leadership of Mahatma Gand for ‘Swara or self government independent of the Brlish Empire, to be attained. through "Non-cooperation’. The Shortcomings ofthe 1919 system, mainly, were (Notwithstanding a substanal measure of devolution of power to the Provives the stuctur sill remained uniary and_centallsed. “with the GovemorGeneral in Council as the keystone of the whole consititonal iitce: and it through the Govemor-General in Counc that the Secretary St Sate and, ultmaty, Partament dachanged thelr responsibilities forthe peace order and good government of Indi’? I was the Governor General Ted wot the Cours who had the authosty to decide whether pardeuar Subject was Cental or Provincal. The Provinlal Legslatuare could not,8 INTRODUCTION TO THE CONSTITUTION OF INDIA [CHAP. 1 without the previous sanction of the Governor-General, take up for Consideraton Any bil relating to a numberof subject. (i) The greatest dssasfaction came from the working of Dyarehy in the Provndal sphere. In lage steaure, te Governor aie to dorete inser ply ty means of ie oveming ancl powers and contol Over the ofcial block in the Legiature. In practice, seareely any question of importance could arise without alfecing’one or more ‘of the reserved departments, The impracicabllty ofa division of the adninistaion into two ‘watertight compartments was manifested beyond doubt. The main defect of the system front the Indian standpoint was toe control of the purse. Finance being revered nije, was laced n charge of «member ofthe Excite Couneil and not a Minister. It was impossible for any Minister to implement ny progressive measure for want of funds and togeder with this was the further fact thatthe members of the Indian Civil Service, through whom the Ministers were to implement their policies, were recrited by the Secretary of State and were reaponsible to him and not to the Mins” Above all wes the overing power ofthe Govetnor who didnot att et constuticnal head even wih expect to the tansfered subjects There was no provision for collecive responsibilty ofthe Ministers to te Provincal Legtlaure. The Ministers were appointed individually, acted as advisers of the Governor, and diflered from members of the Executive Councloaly ln tbe fact tat they were nonollicials. The Governor had the discretion to act otherwise tha in secordance wih he aso hi Mitr he ould sry 9 grat re re Leglature or a Bil rejected by tii was garded by him Salat fr he Mae charge of We specibicn seg © a fered sbject Tt is mo wonder, therefore, that the introduction of ministerial exrrnnent vera pu of he Prove sphere rowed ieee and ied wo sas Indl aspirations. ‘The peristent. demand fot fither’ reforms, tended with the = ilocation eaused by the Now cooperation movement, The Simon Commi- Jed the British Government in 1927 to ag scion. Statutory Commission, as envisaged Government of India Act, 1979 itself. 81A), to inquire Ino and report on the working of he Ac ai 1029 annonce at Dainon Saks was the goa! of Indian politcal developments, The Commission, headed by Si John Simon, reported in 1980 ‘The Report was considered by a Round Table Conference consisting ofthe delegates of the Britsh Government and of Briish india as well so the Rolers of the Indian States (nasmuch as dhe scheme was to unite the Indian States withthe rest of India under a federal schems). A White Paper, Bee om he ets of thi Conference, was examined by a Jt Sct mite ofthe British Parlament and the Government of India Bil was dated in accordance with the recommendations of that Select Committe, land passed, with certain amendment, as the Government of India. Act 1086! Before analysing the main features of the system introduced by this : ‘Ace it should be pointed’ out that this Act” went sComaant anciher step forward In perpetiaing the communal Glorvage between the Meslin and the ‘non-MuslimCur. 1] ‘THE HISTORICAL BACKGROUND 9 ‘unlies, by prescribing separate electorates on the basi of the ‘Communal Award’ which was issued by Mr. Ramsay MacDonald, the British Prime Minister, on August 4, 1992, on the ground that the two major ‘communities had failed to come to an agreement. From now onwards, the ‘agreement between the two religious communities was continuously hoisted a8 a condition precedent for any further political advance. The Act of 1935, it should be noted, provided separate representation not only for the Muss, but alo forthe Sikh, the Europeans, indian Chistans and Anglo Indians and thus created a serious hurdle in the way of the building up of ‘ational unity, which the makers ofthe future Constitution found it almost insurmountable to overcome even after the Muslims had partiioned for a separate State ‘The matt features of he governmental system prescribed by the Act of 1935 were as follows— ree et = (@) Federation and Provincial Autonomy. While under all the previous Government of India Acts, the government of India was unitary, the Act of 1935 prescribed a federation, taking the Provinces and the Indian States as units, But it was optional for the Indian States to join the India Act, 1935. "Federation; and since the Rulers of the Indian States never gave their consent, the Federation envisaged by the Act of 1935 never came into being But though the Part relaing to the Federation never took effect, the Fat rlaing to Provincel Auonomy was gven eet to since Ap, 1857 ‘The Act divided legislauve powers between the Provincial and Central Legislatures, and within its defined sphere, the Provinces were no longer delegates of the Central Goverment, but were autonomous units of administration. To this extent, the Government of India assumed the role of 2 federal government vis2-2s the Provincial Government, though the Indian Sates did not come into the fold to complete the scheme of federation, ‘The executive authority of a Province was alto exercised by a Governor on behalf of the Crown and not as a subordinate of the Governor General. The Governor was required to act with the advice of Ministers responsible to the Legislature, But notwithstanding the introduction of Provincial Autonomy, the Act ‘of 1935 retained control of the Central Government over the Provinces in a certain sphere-by requiring the Governor to actin hs discretion’ or in the exercise of his individual jadgment in cerala matters in such mater; he Governor was to act without ministerial advice and under the control and directions of the Governor-General, and, through him, of the Secretary of State af, Duarey a he Grr The exacuave auborty of the Care was vested in the Governor General (on behalf of the Crown), whose functions were divided into vo groups — ()) The administration of defence, external affairs, ecclesiastical affirs, and of tribal areas, was to be made by the Govemor-General in his discretion with the help of ‘counsellors’, appointed by him, who were not10 INTRODUCTION TO THE CONSTITUTION OF INDIA CHAP. L responsible to the Legislature, (i) With regard to maters other than the ‘hive rmeved aujecs he Govemorsnetal was acon heaves os “Council of Ministers’ who were responsible to the Legislature. But even in regard to this latter sphere, the Governor-General might act contrary to the advice so tendered by the ministers if any of his ‘special responsibilies’ was involved, As regards the special responsblves, the Covernor General was to act under the contol and directions of the Secretar of Sate. But, in fact, neither any ‘Counsellors’ nor any Council of Ministers responsible to the Legislature came to be appointed under the Act of 1935; the old Executive Council provided by the Act of 1919 continued to advise the Governor-General until the Indian Independence Act, 1947, (6) The Legislature. The Cental Leite was bicameral, consisting atthe Pederal Asembly andthe Councl of Sat In six of the Provinces, the Legislature was bicuneral, comprising a Legislative Assembly and a Legislative Council. In the rest of the Provinces, the Legislature was uni-cameral ‘The legislative powers of both the Central and Provincial Le were subject to various limitations and neither could be said to. have asesed the features of sovereign Legiatre. Thus, ‘the Cental gislature was subject to the following limitations: () Apart fam the Governor General's powet af Yea; Bil panied by (is Catal LagQMA Nathan ecko aia al Gamat (a) The Governor General might prevent discussion in the Legislature and suspend the proceedings in regard to any Bil if be wat ste! hat i ‘would alfect the discharge of his special responsibilites, (a) Apar from the power to promulgute Ordinances during the reces of the, Lepsltire, the “GovemorGeneral had. independent power of Tegalaton, concurrently with those of the Legare, This, he had the pre toma enporaryOranes wall a pemnent A tye othe dlachange of his special esponabe, (@) No bill or amendment could be introduced in the Legislature without the GovernorGeneral’s previous sanction, wil respect to certain Inaite, eg ifthe Bil or amendment sought to tepeal or amend or was epugnant 10 any aw of the Brish Parliament exiending to India or any Goveror-General's or Governors Act, or if t sought to allect matters as respects which the Governor General was required to act in his discretion ‘There were similar ftters on the Provincial Legislature “The Inframent of Isrucon ined under the Act fhe que thal celting to ber of subject sch Wows decognng fom te powers oa igh ‘Gout or aacdg ie. Permanent Sediment, when Presented tothe Governor ental or Govemor for hs amet were to be Feerved forthe consideration ft Crown othe Governor era a the car mig be ©) Disribation of tegltie pcs betcen the Cote andthe Provinces. ‘Thou de nan Suet tna nthe Federation, ie federal provinsCitar. 1] ‘THE HISTORICAL BACKGROUND n of the Government of India Act, 1935, were in fact applied as between the Central Government and the Provinces. ‘The division of legislative powers, between the Centre and the Provinces is of special iteres to the retder iy view of the fet tt oe division ‘made ih the Consittion ‘between the Union and the Stats proceeds largely on the sume lines Tt was noth mere delogatns of yuscin the Centre tothe Provinces ar by Rules made andes he Coe ene oF India Ac, 1019, As already potted out the Goverament finde kor 1095 self divided the legislative powers between tne Central and Prossc Legislatures and, subject to the provisions, mentioned. elon nana {egslatre ould wansgress the powels assigned (othe oler A three-fold division was made in the Act— (i) There was a Federal List over which the Federal Legislature had exclusive powers of legislation. This List included matters such as External affairs; Currency and coinage; Naval, miliary and air forces: census, (i) There was a Provincial List of matters over which the Provincial Legislature had exclusive jurisdiction, ¢g., Police, Provincial Public Service, Education, {fi There was a Concurrent List of matters over which both the Federal and vincial Legislature had competence, ¢g., Criminal law and procedure, Civil procedure, Marriage and divorce, Arbivation, The Federal Legislature had the power 10 legislate with respect to mmaters enumerated tn the Provincial Lit I'a Podmaon af Exeeeeas was made by the GovemorGenera, The Federal Legslaure cou acy legislate with respect to a Provincial subject ifthe Legislatures of two oe ‘ore Provinces desired this in Weir common Interest In case ofrspgnancy in the Concurrent field, a Federal lw prevailed over Provincial law to Ute extent of the repugnancy, Bu it the Province law having been reserved for the consideration of the Governor Geral receved his asen, the Provnci! aw’ prevalel nowineenebe neck ‘epugnancy ‘The allocation ofresidary power of legato inthe Act was unique i was not vested in ether the Central or the Provincial Leglature bus GovernorGeneral was empowered to authorise either the Federal the Frovincial Logilaure to enact lw with respect to any ater whlch vos not enumerated inthe Legislative Lins, It is to be noted that ‘Dominion Status’, which was promised by he Simon Commission in 1929, was not conferred by the Government of india Act, 1938. The circumstances leading to the enactment of the Indian Independence Act, 1947,* will be explained in the next Chapter. But the Changer, inten changes introduced by ths Act imo the srctire of Sed Uy the Tadian government pending the drawing up of Consttaicn TRlependence Acts for" indepenten, Lada ‘by Comuacest a Be should be pointed out to the present context 0a coffer a correct and comprehensive picture of the ‘background against which the Constitution was made,2 INTRODUCTION TO THE CONSTITUTION OF INDIA. (CHAP. In pursuance of the Indian Independence Act, the Government of India Ac, 1935, was amended by the Adaptation Orders, both in India and Pakistan, in order to provide an interim Constitution to each of the two Dominions until the ‘Constiuent Assembly could draw up the future Constitution ‘The following were the main results of such adaptations:— (a) Alton of the Soeegnty end Responiiy of the British Pati snc a eo oe ecentachat mma 18S Te Goremment of Indie wes translerred from the East India, Company © the Gown, By tis Act, the British Palament became te direct guardian of tio and dh oc of the Seeretary of Sate for India was created forthe ‘eftiseauen of Indian aflane for which the Secretary of Sate was to be aan ic to Tastament, Nogritstanding gradual relaxation ofthe contol, te GovemurCenerd of Indl and the Provincal Governors remained a cetely under the direc contol of the Secretary of Sate unl the {nan Independence Act 147,30 hat in conautonal theory, the, Goverment of Ta & sibordiute oe even nd i Majny’s ovement “The Indian Independence Act altered this constarional postion, root and breach declared that vith effec from the 15th August, 1047 (refered woe ‘appointed day) India ceased t0 be Dependency and the Gaeriny ofthe Brush Crown over the indian Stats and the tty ‘Slanons ath Trbal Areas also lapsed from the date ‘The responsibility of the Britihh Government end Parliament for administration of India having ceased, the office of the Secretary of State for India was abolished. (b) The Crown no longer the saurct of authority So long as, India remained a Dependency of the British Crown, the Government of India was anted on in the name of His Majesty. Under the Act of 1985, the Crown fame into further prominence owing to the scheme ofthe Act being federal, Ghd all the units of the federation, including the Provinces, drew their Euihorty direct from the Crown. But under the Independence Act, 1947, neither of the two Dominions of India and Pakistan derived ts authorty from the Brish Ines. (¢) The Governor-General and Provincial Gocernors te act as constitutional heads. The GovernorsGeneral of the two Dominions became the ‘onslitutional heads of the two new Dominions as in the case of the other Dominions. This was, n fac, a necesary corollary from ‘Dominion Status’ which had been denied to India by the Government of India Act, 1985, but ‘conceded by the Indian Independence Act, 1947, According to the adapaons under dhe Independence Act, there was no longer any Executive Council as under the Act of 1919 or ‘counsellors’ as envisaged by the Act of 1935. The Governor-General or the Provincial Governor was to act on the advice of a Council of Ministers having the Confidence of the Dominion Legislature or the Provincial Legislature, a6 the ase might be. The words “in his discretion”, “acting in his discretion” and Sindividual judgment” were effaced from the Government of India Act,BREFESE CHAP. 1] ‘THE HISTORICAL BACKGROUND 13 in which these constitutional heads could at without or against the wis the Ministers. Similarly, the powers of the Governor-General to ‘Governors to discharge certain functions as his agents were deleted from the Act ‘The GovemorGeneral and the Governors lost extraordinary powers of| legislation so as to compete with the Legislature, by passing Acts, Proclama- tions and Ordinances for ordinary legislative purposes, and also the power of certification. The Governor's power to suspend the Provincial Constitu- tion was taken away. The Crown also lost ls right of veto and so the Governor-General could not reserve any bill for the signification of His Majesty’ pleasure, (A) Sovereignty of the Dominion Legislature. The Central Legislature of India, composed of the Legislative Assembly and. the Council of States, ceased to exist on August 14, 1947. From the “appointed day’ and unt the Constituent Assemblies of the two Dominions were able to frame their new Constitutions and new Legislatures were constituted thereunder, —it was the Constituent Assembly itself, which was to function also as ‘the Central Legislature of the Dominion to which it belonged. In other words, the Constituent Assembly of either Dominion (until it itself desired otherwise), was to have a dual function, constituent as well as legislative. ‘The sovereignty of the Dominion Legislature was complete and no sanction of the Governor-General would henceforth be required to legislate fon any matter, and there was to be no repugnancy by reason of contravention of any Imperial law. 1085, wherever they occured, with te resulta there was now no phere es of ire REFERENCES ‘The Consist of India was adopted ‘cn 26111940 and sce of provisions were ‘Bren immediate elect The ull of the Conssuaton, however, became operatve 20 20. Fino, wich date te eared to im the Conatron ts "Dats of Caramencement and Is cleat in inca the “Republic Dy Report ofthe Indian Stattory Commission (Son Report Vol pp, 1124, SETON, Inde Offic, PAXORKAR, Asia and Wastera Dominance, 953, p. 55. [NEIMU, Disemery f Fada, 1986, p. 385, Simon Report Val. pp. 12225, 14855 Report ofthe Joint Palamentry Consmite; Simon Report, Vol. pp. 22:8. For the text of the Government of India Acs, 18101985, he Indian Councls Act, 1801 1900, "the Indian ladependence. Ack 1047 and Orders thereunder, see BASU, Constintional Dacuments, Vel (1503,(CHAPTER 2 THE MAKING OF THE CONSTITUTION Demand for a THE demand that India’s politcal destiny should Bomtltaion" be determined by the Indians themselves had, been framed by 's Com put forward by Mahatma Gandhi as early as in 1922 AemPlY ar| wil note 4 ee fit of the Beh Puslament wal be a deharaton of ls fal sexprestion That wl be expres through GAC of Parlament tue ut ft wl be merely a countess raicaon oft Celared wish of the people of India oem as wasn She case ofthe Union of South ‘Aiea? The fallure of the Statutory Commission and the Round Table Conference which led to the Government of India Act, ya Indan appa SLEARMEBP eran or « Comsuton made by the people of India whthout outside interference, which, was ofc saseted by the Naonal Congres in 1635 In 138, Fant Nebo dette formulated his demand for a Constituent Assemy thus “The National Congres sande for independence and democratic sae. Ins proposed that the eonsttsion of fee India must be franed, without ouside Ttetterece, by & Conaitent Assembly elected on the bas of adult franchise” ‘Toisas rote by, the Working Coramite ofthe Congres in 1930. Liha. P ‘This demand was, however, resisted by the British Government unt the outbreak of Word War Il when external creumstances forced them to v allion realise the urgency of solving the Indian constitutional ae problem. In’ 1940, the Coalition Government. in England recognised the principle that Indians should themselves frame a ew Consttuion for autonomous India, and in March 1942, when the panes were ate dor od ty et Si Salo Caps wis Pike Cabinet, with a draft declaration ‘on the proposals of the British Government which were to be adopted (atthe end ofthe War) provided the two major polteal parties (Congress and the Muslim League)! could come to an agreement to accept them, e.*— (a) that the Consitution of India was to be framed by an elected Constituent Assembly of the Indian people; (0) dt the Consuon should give Indla Domison Stts,—equl para fehip of te Betish Commonweal of Nations, (ch there shoul be one Indian Union compris all he Provinces and tein Sates but tyCuar. 2] ‘THE MAKING OF THE ConsTITUTION 15 (2) that any province (or Indian State) which was-not prepared to sécef lee Colton wold be beet feats wy esainachal potion Cxatlg at Gat tine aid with: wh chaccedng” Wovincer the Btish Government could enter ito separate consinaional rangement, Bu the: two parts. tocome to. an wgreemesit to accept the eek ee ee ee (tat nda shold be vided into oro axon Sats on ena Pe bein mene of re Pore, em oy Mrfooai wi tre et tlopanien con Sam bs kaon Faby {yt lend of oe Conan Avent es soul be So. Cnnient Ameen as sens Conte: Anonby br baling oe, [After the rejection ofthe Cripps propostls (followed by the dynamic ‘Qu bed’ ipsa insanely eget eet actpe ns al reconcile the two. partes were, made inching. the Peteration. ‘Simla Conference “held atthe instance. of the Governor General, Lard WAVELL ‘These having failed, the Britsh Cabinet Sppticboet ba Ger romctesecietrg eee meet a see ether ferlous stamps, Botte Cabinet Delgiion, G2, fled fn snaking the two thajor pane come to any agreement td were, accordingly, obliged to pot forward their own proposals which were announced simufaneously in India tnd in England onthe 16th May, 1946. ‘The proposals of the Cabinet Delegation sought to effect a compromise between a Union of India and its division. While the Cabinet Delegation Gchaaly reced thn cin fc 8 sopenie CGE ESE Sal parte Sat Tr setae tae Mdina: The scheme which they recommended lnvolved @ virtual accept ‘Brindle underlying the claim of the Muslim League. ‘The broad features of the scheme were— (a) There would be a Union of India, comprising both British India aand the States, and having jurisdiction over the subjects of Foreign AMfairs, Defence and Communications. All residuary powers would belong to the Provinces and the States. {b) The Union would have an Executive and a Legislature consisting of representatives of the Provinces and States. But any question raising a major ‘communal Issue in the Legislature would zequire for its decision a majority of the representatives of the two major communities present and voting as ‘well asa majonty of all the members present and voting. ‘The Provinces would be free to form Groups with executives-and legislaures, and each Group would be competent. to determine the Prange ee Deo The scheme laid down By “the “Cal Ge was, however, recommendatory, and it was contemplated by the Mission that it would be [Gs statement adopted by agreement between the two major HM Gctomber'"G, (A carious sttaon, however arose afer an lection ioe for forming the Constituent Assembly was held. The Muslim League joined the elcetion and its candidates were retumed, But a difference of opinion had in the meantime arisen between the Congress and the League regarding the interpretation of the16 INTRODUCTION TO THE CONSTITUTION OF INDIA [CHAP: 2 “Grouping clauses! of the proposals of the Cabinet. Mision. ‘The British “Government intervened a ths stage, and explained to the leader. in London that they upheld the contention of the League as corec, and on December 6, 190, the Britsh Government published the following atement ‘Sos oman re sai yt Cons Ay which lage scion of ti Indian popiaon ant eas opened. Naa Gekernent woul not comcopne orang sxe contin aon any rel ‘part ofthe county.” oe aioe For the fis tine, this, the Bitish Coverament ickamledged the iit of we Consttaent Aster ane tw Sis he nea as that Deen 6 whee Comsten Aneto Masin egenimoatiesseh het Mow wt’ Cocutsey’Aase ~ function with the non-Muslim League members. rane “The Muslin’ League urged for the’ dlithtion the, Content Agee embly of Ina on the groin tat wasnt fall TEMES" EG represenatve of all sections ofthe people of India fur (On th other hand te Bre ote 6 tet Statement of the 20th February, 1947, declared,— wee, iat British rule in India would in any case end by June, 1948, after ‘Biche Bala ra aoe a Paha ea (b) that if by that time a fully representative Constituent Assembly failed to work out a constitution in accordance with the proposals ‘made by the Cabinet Delegation, — “HLM. wil have t consider to whom the powers ofthe Cental Goverment Brush India should be handed oven on the Se die wer ata whole to sore fom of Cenizal Government for Bash Indl or in some teas lo the existing ‘Provincial Government, o in sich other way as seer mow resonable and in the ‘est interests ofthe Indian people" ‘The result was inevitable and the League did not consider it necessary to join this Assembly, and. went on presing for ear Constituent Assembly for ‘Muslim India’ Tia ess Gores tt et ord Mera ete GovernorGeneral, in place of Lord WAVELL, in order to expedite the ;partions forthe transfer of power, for which they had fixed a rigid ume it_ Lord MOUNTBATTEN brought the Congress and the agreement that the wo ‘problem’ provinces of the Punjab_and gal would be partiioned so ax to form absolule H ae d so ruthlessly denied i—minus ‘Assam, East Punab endl West Bengal, while the Congres which was taken as the representative of the people of India other than the Muslims would ot the rest of India where the Muslims were in minority ‘The scl dels so beter th on rine ol By the Punjab ciphiplaa koorioamedteat tceauinton Pot W wana Fear ae “a a provided, inter alia, thatcuar. 2} ‘THE MAKING OF THE CONSTITUTION 7 “The Prone Legidaive. Atembles of Bengal pad the Punjab (exch iopeen mbar wl teem, ecb tone fa to fat ‘eeening he Mani int dc and te her i rat he Hove ‘sumer ofthe two paso each Legare sing separsay wil te empowered to vote wbeher or note Province should be pardoned: If "imple majority of cir Pare decides In tvour of Farstion, division wl ke place Sd erangercnt wil be made according. parton were deeded upon each fan of the Leghtne: Amembly would deide, on bell ofthe’ arean "Cv, wt wo joe exing or e epie Coste pel" It was also proposed that there would be a referendum in the North Western Front a and in the Mus distri Mage onic eg nae Hay eA “oan aia or Statement further declared °HIMLG + intention "Wo twodticeTeglation during the current season forthe transfer of power this year on’ Dominion Stans basis to one or vo fsccessor alithorides according to decisions taken as a result of the announcement” The result of the vote a to the above Plan was a foregone iiesiol tr tie Mertesenialves ok the Maden anit areas of a efPronncen (fe, Won Pj and Eat Benga) vate ft pion and for joining a new Constituent Assembly, ‘The referendum in the North Western rontier and Sylhet was in favour of Pakistan On the 26th July, 19 3c setting: up a The Plan of June 3, “Thay, Raving been carried out, nothing stood in the way of effecing the tansler of power by enacting a statute of the Bridsh Parliament in accordance with the declaration Ht mun be suid up the crt ofthe Bath Pavmens satan tne dralt the Ineran Inde; ce on the basis of the above Plan, and aaerredine teas tha Bl vas pased and placed on the Sate Book, Jundence Act, 1985, With amazing speed, as the Indian Independence Act, 1947 (10 & 11 Geo, VI, c. 30). The Bill, which was troduced in Parhament on July 4 receved the Royal Asent on Jay, —rverrv' “The most outstanding characters ofthe Indian Independence Act was nt white oer Acts Pariament relating tothe Goverment of India frac a the Goverament of indi Act om 1858 to 1085) sought lay oct & Casatnon forthe governance of nla by the legulave wll of the och Patament. dis Act 1047 didnot lay down any such constaton ided that as from the 15dh August, 1947 is referred to im the Act as the ‘appointe i. dia’ as define ie ssembly ‘adopt any constitution and to repeal any Act of the Britsh Parliament, tnclading te Indlan Independence’ Act. Under the Act, the Dominion of Indi got the rein territory of India excluding the Provinces of Sind, Baluchistan, West Punjab, East Bengal, and the North Western Frontier Province and the district of Syllet in VAssarn (which had voted in favour of Pakistan at a referendum, before the ‘Act came into force)18 INTRODUCTION TO THE CONSITIUTION OFINDIA —_[CHAP. 2 ‘Sebidtinitce ‘The Constituent Assembly, which had. been biyorindia. elected for undivided India and hed its frst sitting on tho fh December 16 seman oe a August 1917, a the sovereign Constituent Assembly forthe Dominion of india. As to its composition, it should be remembered, that it had been lected by indirect election by the members of the Provincial Legislative Asemblcs (Lower House ony) according wo the schemu recommended by the Cabinet Delegation [see Tabie Il, in the Appendix}. The essentials of the scheme were as follows: (1) Bach province and each Indian Stale or group of States were allotted the total number of seats proportional to their respective epulations roughly in the rato of ene to a milion. As «rer, the ices were to elect 202 members while the Indian States were allotted a minimum of 93 seats, (2) The seats in each province were distributed among the three main communities, Muslim, Sikh and General, in proportion to thelt respective populations, (@) Members of each community in the Provincial Legislative Assembly elected their own representatives. by the method of proportional representation with single transferable vote. (4) The method of selection in the case of representatives of Indian States was to be determined by consultation. ‘As a result of the Parton under the Plan of June 3, 1947, a separate Constituent Assembly was setup for Pakistan,” as stated earlier’ ‘The representatives of Bengal, Punjab, Sind, North Western Frontier Province, Buchs andthe yet ae of Asta (tien added ale referendum) ceased to be members of the Constituent Assembly of In and there was a fresh election in the new Provinces of West Bengal and East Punjab. In the resuly when the Constituent Assembly lst October, i ‘The salent principles of the proposed Consiition ind been ouilined ‘by various committees of the Assembly? such as the Union Constitution Comittee, tse Union Powen Commies: Comtes to Toot Rights, = after a ae ene reports ne a the Assembly appointed Drating tee on the 26th August The Dating Commies, under the’ Chatmanship’ of The Constient Assembly again st onthe 4th November 1949, for thi ‘and. fnished. "ton. the 26 " ihe SoeetbatSS. Nowaiee TS on whith tay ie oa recelve President of the Assembly and was a pased Assembly and was declared as passeCuar. 2} ‘THE MAKING OF THE ConstrrUTION 19 The provisions relating to citizenship, elections, provisional Parliament, ta ot conmueg: SmpeEny ead, stations] provalane were given Pet Sve ala a tom ember the Scaltason, SEP arte Consbution tame bro force Sa the 26h Jenny, 1980, ond Gab day refered to tn the Constitution as ymencement. REFERENCES Asset: he Mun Lea rene comely ws Gnd i ‘While te cale’ objective wat to secre separie representation & Une Mani ithe Pulte sytem, ints Lahore Revlon of 194, K snr demand forthe eeaon Ps separate Msn Sate he Mulan mary areas. Th iden was developed bo the dif for divding Inds ino tro independent Sate when th Cripps ler was Senoaneed ‘The Cabinet Minion conse of Lord PETBUCK LAWRENCE Si Salford Cpe and Me [AN Alexander The inporant commitees of the Content Aembly were — (@| Union Powers Commie. It had 9 member. Sho Jawahadal Nehru was ts tle) Cote oa Fuca ihe and Motes tad 5 memes ‘Sirdar Valsts Patel was charaan, (¢) Sering Comite. i had 3 members De KIM. Mun (chalonan), Shr Gopalmay Ayangar and St Bttwanath Das. Proved Consutton "Commitee "25" member Sardar Pal a» chairman. { Commitee on Union Coston. 15 members PL Nei chats “The drat was prepared by Sir BN, Raw, Advert dhe Content Asembly, A “member cre aed by Se Aa Rima Het watt xan GRE'De Bit Ambedkar who was mater or lw Rom (S81047 fo Be1-1080 plod the drat concaon ne Asem Since tat date, the Consttaton han been fea amended, according to the procedure ine down im At 968rno le han 94 nen, by 200 (oe Table IV, pa), Fora text of the nga’ Constaon, with mbsequent amendments see Authors Contifon ‘renden As Coitatinat Law of fh Ed (Peace Hal of fda).CHAPTER 3 THE PHILOSOPHY OF THE CONSTITUTION EVERY Constitution has a philosophy of its own. For the philosophy underiying eur Constitution we must lok back ito The Objectiver the historic Objectives Resolution of Pandit Nehru Eee ‘which was adopted by the Constituen: Assembly on, January 22, 1947," and which inspired the shaping of the Constitution throuigh alls subsequent stages. It reads thus— This Constituent Assembly declaves i frm and solemn resolve 10 proclaim India gat Independent Sovereign Repub and raw vp for ber are governance (2) Wines tbe tories hat now compre Bah Ind he terri hat sow form the Indian Sten, and such ther pars of ida wwe ote Bs India and the Sates aswell asta ote temfores a are ling tobe tonsa toto the Independent Soverelge Ind, sal be Union of therm sand (3) WHEREIN the said terres, wheter with their present beundace or wih sch othe a8 may be decermined by the ConstinentAssently and theeaer condi the fw ofthe niton, whl pen en he an of futonomeus ni, togeter wih esiduat owes, and exer all powers iincions of Government and adminsratom tve and except uch power and funetons a are vested i orange fo the Ulon, ors are ieret or imped In the Union o esuling thereon and (§) Wien all power and autborty of the Soverign Independent od, convatuent part and orga of Gvemments are derived rom the people; and (6) WHERE shall be guaranteed and secured ale people of lia jusice sooth economic od gla equ of mf opportu, and ble I fied of gh, exprenton, bah, wend, coon, scan fd ation abject to aw and puble morals an 6) WHEREIN adegte silos shall be provided! for mire, backward ind Oat tee end doped ind ther beck tad (2) Wraxen sll be maitained the inegry Othe Troy of the Republic sala erg igh hd ew, nd orn on ado ‘feed natoas (@) The ancient land stan Ws righul and honoured place the world and voake a fall and ling eonbuson tothe promotion of word peace and Uae srlfare of mankind” In the words of Pandit Nehru, the aforesaid Resolution vas “something more than a resolution. It is a declaraon, a firm resolve, a pledge, an tundertaking and forall of us a dedication”. 1k will be seen that the ideal embodied in the above Resolution is faithfully reflected inthe Preamble to the Constitution, which, as amended in 1976, summarise the aims anc ‘objects of the Constitution : ‘The Preamble, [20]Guar. 3) ‘THE PHILOSOPHY OF THE CONSTITUTION a “WE, THE PEOPLE OF INDIA, having sleet come SSOVERRIGN SOCIALIST SECULAR? DEMOCRATIC REPUBLIC nd" Secure toa eizens JUSTICE, soc economl and plea: LIBERTY of hough, expression, bel, ith and worship EQUALITY of sas and of opportanky; and to promote among them all THLATERNTY ang he gy ofthe oii and he ty nd eri? of IN OUR CONSTITUENT ASSEMBLY ths wentyath day of November, 1949, de HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THis CONSTI TUTION" ‘The importance and utiity ofthe Preamble has been pointed out in weral decisions of our Supreme Court. Though, by itself, st 18 not nforceable in a Court of law, the Preamble o a waiten Constittion states the objects which the Constitution seeks to establish and promote and also sss gal nepraton of he Conon whe Tenguage fs Found to be ambiguous! For a proper appreciation of the aims and aspirations fembodied in our Consifution, therefore, we must turn to the various expressions contained in the Preamble, as reproduced above. The Preamble to our Constitution serves, two purposes {@) it indicates the source from which the Constitution derives is authority; (b) it also states the objects which the Constitution seeks to establish and promote 'As has been already explained, the Constitution of India, unlike the Independent and preceding Government of India Acts, isnot a git of Sovereign the Britsh Pasliansent It is ordained by the people of India through their representatives assembled in a sore Content Amerbly which wat compte determine the political future of the country in any manner it liked. The words—‘We, the people of India... adopt, enact and give to ourselves this Constitution’, thus, Heclare the ultimate sovereignty of the people of India and that the ‘Constitution rests on their authority * ‘Sovereignty means the independent authority of a State, It means that it has the power to legislate on any subject; and that itis not subject to the control of any other State or external power ‘The Preamble declares, therefore, in unequivocal terms that the source of all authority under the Constitution is the people of India and that there is no subordination to any extemal authority, While Pakistan remained a British Dominion until 1956, India ceased to be a Dominion and declared herself a ‘Republic’ since the ‘making of the Constitution in 1949. It means a government by the people and for the people, ‘We have an elected President at the head of our State, and all office including that of the President will be open to all citizens, Republic,INTRODUCTION TO THE CONSTITUTION OF INDIA [CHAP. 3 ‘On and from the 26h Jan, 1950, whem the Constitution came into Soversiguty not im fr, the Crown of England ceased to have any le cee ececencralasirey crmtamamadnctioe ot emberthip of the India was to have any allegiance to he British Crown. emmonwealth. Bur though India declared herself a Republic, she did not sever all ties with the Brtsh Commonwealth as dd Bir, by enacting the Republic of Ireland Act, 1948, In fact, the conception of the Commonvedihisell has undergone a change owing to India’ decision to adhere to the Commonwealth, witht acknaledging allegiance to the Crown which was the symbol of unity of the Old Britsh Empire and also ofits successor, the ‘British Commonwealth of Nations It is this decision of India which has converted the ‘Britsh Commonwealth’ — 2 rele of imperialism, into a fre association of independent nations under the Honourable name of the “Commonwealth of Nations’. This historic decision took place at the Prime Minister’ Conference at London on ‘April 27, 1949, where, our Prime Minister, Pandit Netra, declared that fotidhstanding her becoming a sovereign independent Republic, India wil continue "her full membership of the Commonwealth of Nations and her feceptance of the King as the symbol of the free ssoctation of the independent nations and ss such the Head of the Commonwealth” Its to be noted that this declaration is extra-lega! and there is no ‘mention of it in the Constitution of India. It is a voluntary declaration and indicates a free association and no obligation. It only expresses the desire of India not to sever her friendly relations with the English people even though the tie of politcal subjugation was severed. The new association was an honourable association between independent States, It accepts the Crown of England only as a symbolic head of the Commonwealth (having no functions to discharge in relation to India as belonged to him prior to the Constitution), and having no claim to the allegiance of the citizens of India Even if the King or Queen of England visits India, he or she will not be tentiled to any precedence over the President of India Again though as a member of the Commonwealth, India has a right to be represented on Commonwealth conferences, decisions at Commonwealta conferences will not be binding on her and no treaty with a foreign power or declaration of war by any member of the Commonwealth will be binding on her, without her express consent. Hence, this voluntary association of India with the Commonwealth does not affect her sovereignty to any extent and it would be open to India to cut off that association at any time she finds it not to be honourable or useful. As Pandit Nehru explained: “isan agreement by fe wil to be terminated by free wil.”® “The geat magnaninity with which India tok his decision in the face motion of inter. ofa powerfil opposition at home which was the Rational Peace." atu reaction of the manifold grievances under the imperialsde rule, and the great fortitude with which the association has stl been maintained, under the pressure of repeated disappointments, the sean of Baling Hnterational alignments and the 1976 upsurge of racial in England, speak volumes about the sincerity of India’