Development Pre Partition.pdf

8/9/2019 Development Pre Partition.pdf

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Constitutional Development

in India (Pre Partition)

Raja Shah Zaman Khuhro

03333647400

[email protected]

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Introduction

So far as the constitutional development in the pre-

independent India is concerned the year 1858 should be

considered as the watershed.

However before that in times of the rule of the Company,

British Government from time to time issued orders and

made laws to supervise the affairs of the company

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Regulating Act of 1773 The Regulating Act of 1773 was an Act of the Parliament of

GB intended to overhaul the management of the East IndiaCompany's rule in India. The Act did not prove to be a long-term solution to concerns over the Company's affairs.

By 1773, Company was in dire financial straits. TheCompany was important to Britain because it wasa monopoly trading company in India and in the east andmany influential people were shareholders. The Companypaid GB 400,000 (present-day (2013) equivalent is 43.3 million) annually to the government to maintain themonopoly but had been unable to meet its commitmentssince 1768 because of the loss of tea sales to America.

About 85% of all the tea in America smuggled was Dutch tea.The Company owed money to both the Bank of England andthe government: it had 15 million lbs (6.8 million kg) of tearotting in British warehouses and more en route from India.

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Regulating Act of 1773

Lord North decided to overhaul the management ofCompany with the Regulating Act. This was the first step to

the eventual government control of India. The Act set up a

system whereby it supervised (regulated) the work of

Company.

The Company had taken over large areas of India fortrading purposes and had an army to protect its interests.

Company men were not trained to govern so North's

government began moves towards government control

since India was of national importance. Shareholders in the

Company opposed the Act. Company was still a

powerful lobbying grouping Parliament in spite of its

financial problems.

Cont

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Provisions of the Regulating Act

The Act limited Company dividends to 6% until it repaida GB1.5M loan and restricted the Court of Directors to

four-year terms.

It prohibited the servants of company from engaging in

any private trade or accepting presents or bribes from

the natives. The Act elevated Governor of Bengal, Warren

Hastings to Governor-General of Bengal and subsumed

the presidencies of Madras and Bombay under Bengal's

control.

The Act named four additional men to serve with theGovernor-General on the Calcutta Council: Lt-

Gen JohnClavering, George Monson, Richard Barwell,

and Philip Francis.5


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Provisions

Barwell was the only one with previous experience in

India. These councilors were commonly known as the

"Council of Four".

A supreme court was established at Fort William

at Calcutta. British judges were to be sent to India to

administer the British legal system that was used there.

Cont

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The East India Company Act 1784

Also known as Pitt's India Act, it was intended to

address the shortcomings of the Regulating Act of

1773 by bringing the Company's rule in India under the

control of the British Government.

Act provided for the appointment of a Board of Control,

and provided for a joint government of British India by

both the Company and the Crown with the government

holding the ultimate authority.

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By 1773 Company was in dire financial straits and asked

for assistance from the British Government. Faced with

corruption and nepotism amongst the company officials

in India, the British Government enacted the Regulating

Act in 1773 to control the activities of the Company. The

Act set up a system whereby it supervised (regulated)

the work of the Company but did not take power for itself.

The Act had proven to be a failure within a few years and

the British government decided to take a more active

role in the affairs of the Company.

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Provisions of the 1784 Act

A governing board was constituted with six members, two of

whom were members of the British Cabinet and the

remaining from the Privy Council.

The Board also had a president, who soon effectively

became the minister for the affairs of the East IndiaCompany.

The Act stated that the Board would henceforth "superintend,

direct and control" the government of the Company's

possessions, in effect controlling the acts and operationsrelating to the civil, military and revenues of the Company.

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Provisions

The governing council of the Company was reduced to threemembers, and the governor-general, a crown appointee, wasauthorized to veto the majority decisions. The governorsof Bombay and Madras were also deprived of their independence.The governor-general was given greater powers in matters of war,revenue and diplomacy.

By a supplementary act passed in 1786 Lord Cornwallis wasappointed as the second governor-general of Bengal, and he thenbecame the effective ruler of British India under the authority of theBoard of Control and the Court of Directors. The constitution set upby Pitt's India Act did not undergo any major changes until the endof the company's rule in India in 1858.

Cont

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Also known as the Charter Act of 1793, was an Act of

the Parliament of Great Britain which renewed the

charter issued to the British East India Company, and

continued the Company's rule in India.

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Provisions

In contrast with legislation concerning British India proposedin the preceding two decades, the 1793 Act "passed with

minimal trouble".

The Act made only fairly minimal changes to either the

system of government in India or British oversight of the

Company's activities. Most importantly, the Company's trademonopoly was continued for a further 20 years. Salaries for

the staff and paid members of the Board of Control were also

now charged to the Company. Other provisions of the Act

included:

The Governor-General was granted extensive powers over

the subordinate presidencies.12


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Provisions

The Governor-General's power of over-ruling his council

was affirmed, and extended over the Governors of the

subordinate presidencies.

Senior officials were forbidden from leaving India without

permission. Royal approval was mandated for the appointment of the

Governor-General, the governors, and the Commander-

in-Chief.

The Company's charter was next renewed by

the Charter Act of 1813.

Cont

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THE East India Company Act 1813

Also known as the Charter Act of 1813.

It renewed the charter issued to the British East India

Company.

It continued the Company's rule in India.

However, the Company's commercial monopoly was

ended, except for the tea trade and the trade with China.Reflecting the growth of British power in India.

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Provisions

The Act expressly asserted the Crown's sovereigntyover British India.

It allotted Rs 100,000 to promote education in India.

Christian missionaries were allowed to come to BritishIndia and preach their religion.

The power of the provincial governments and courts inIndia over European British subjects was alsostrengthened by the Act. Financial provision was alsomade to encourage a revival in Indian literature and forthe promotion of science.

The Company's charter had previously been renewed by

the Charter Act of 1793, and was next renewed bythe Government of India Act 1833.

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Government of India Act 1833

Also known as The Saint Helena Act 1833.

As this Act was also meant for an extension of the royal

charter granted to the company it is also calledthe Charter Act of 1833.

This extended the charter by 20 years

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Provisions

It made the Governor-General of Bengal as the Governor-General of India. Under its provision Lord William

Bentinck was the first Governor-General of India.

It deprived the Governor of Bombay and Madras of their

legislative powers. The Governor-General was given

exclusive legislative powers for the entire British India. It ended the activities of the Company as a commercial

body and became a purely administrative body.

It attempted to introduce a system of open competitions for

the selection of civil servants. However this provision was

negated after opposition from the Court of Directors whowere still holding the privilege of appointing the companies

officials.17


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Charter act of 1853

The act renewed the powers of the company and allowed it

to retain the possession of Indian territories in trust for the

British crown but not for any specified period

The number of the members of the court of directors was

reduced from 24 to 18 of which 6 were to be nominated by

the crown

The law member was made a full member of the governorgenerals executive council.

The legislation was treated for the first time as separate

from executive functions.

Questions could be asked and the policy of the executive

council could be discussed, though the executive councilcould veto a bill of the legislative council

Recruitment to civil service was based on open competition

examination (excluding Indians). 18


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The Government of India Act 1858 was passed on August 2,1858. Its provisions called for the liquidation ofthe Company (who had up to this point been ruling BritishIndia under the auspices of Parliament) and the transferenceof its functions to the British Crown. Lord Palmerston, then-PM of UK, introduced a bill for the transfer of control of theGovernment of India from the East India Company to theCrown, referring to the grave defects in the existing system ofthe government of India.

Indian Rebellion of 1857 urged British Government to passthis Act to calm down the after effects of 1857 revolt

This ushered in a new period of Indian history, bringing aboutthe end of Company rule in India. The era of the new BritishRaj would last until Partition of India in August 1947

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Provisions The Company's territories in India were to be vested in the Queen,

the Company ceasing to exercise its power and control over theseterritories. India was to be governed in the Queen's name.

The Queen's Principal Secretary of State received the powers andduties of the Company's Court of Directors. A council of fifteenmembers was appointed to assist the Secretary of State for India.The council became an advisory body in India affairs. For all thecommunications between Britain and India, the Secretary of Statebecame the real channel.

The Secretary of State for India was empowered to send somesecret dispatches to India directly without consulting the Council.He was also authorized to constitute special committees of hisCouncil.

The Crown was empowered to appoint a Governor-General andthe Governors of the Presidencies.

Provision for the creation of an Indian Civil Service under the

control of the Secretary of State. All the property of the East India Company was transferred to the

Crown. The Crown also assumed the responsibilities of theCompany as they related to treaties, contracts, and so forth.

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The Indian Council Act 1861 It transformed the Viceroy of India's executive council into a

cabinet run on the portfolio system. This cabinet had six"ordinary members" who each took charge of a separatedepartment in Calcutta's government: home, revenue,military, law, finance, and (after 1874) public works. Themilitary Commander-in-Chief sat in with the council as anextraordinary member. The Viceroy was allowed, under the

provisions of the Act, to overrule the council on affairs if hedeemed it necessary - as was the case in 1879, during thetenure of Lord Lytton.

The Secretary of State for India at the time the Act waspassed, Sir Charles Wood, believed that the Act was ofimmense importance: "the act is a great experiment. Thateverything is changing in India is obvious enough, and thatthe old autocratic government cannot stand unmodified isindisputable." 21


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Provisions

The 1861 Act restored the legislative power taken away by

the Charter Act of 1833. The legislative council at Calcutta

was given extensive authority to pass laws for British India as

a whole, while the legislative councils at Bombay and Madras

were given the power to make laws for the "Peace and goodGovernment" of their respective presidencies. The Governor

General was given the power to create new provinces for

legislative purposes. He also could appoint Lt. Governors for

the same. However from India's point of view the act did little

to improve the influence of Indians in the legislative council.The role of council was limited to advice. No financial

discussion could take place.

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The Indian Council Act 1892

It authorized an increase in the size of the

various legislative councils. Enacted due to the demand

of the Indian National Congress to expand legislative

council, the number of non-official members was

increased both in central and provincial legislative

councils. The non official members of Indian legislativecouncils were henceforth to be nominated by Bengal

chamber of commerce and provincial legislative council.

The universities, district board, municipalities,

Zamindars and chambers of commerce were

empowered to recommend members to provincial

councils.23


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The Indian Council Act 1892

Thus was introduced the principle of representation. It

also relaxed restrictions imposed by the Indian Councils

Act 1861, thus allowing the councils to discuss each

year's annual financial statement. They could also putquestions within certain limits to the government on the

matter of public interest after giving six days' notice but

none of them was given right to ask supplementary

question. Thus it prepared the base of Indian Democracy.

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Indian Councils Act 1909

The Indian Councils Act 1909 commonly known as

the Morley-Minto Reforms, was an Act of the parliamentof UK that brought about a limited increase in the

involvement of Indians in the governance of British India.

John Morley, the Liberal Secretary of State for India, and

the Conservative Governor-General of India, The Earl of

Minto, believed that cracking down on uprising

in Bengal was necessary but not sufficient for restoring

stability to the British Raj after Lord Curzon's partitioning

of Bengal. They believed that a dramatic step was

required to put heart into loyal elements of the Indianupper classes and the growing Westernized section of

the population.

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Significance of the Act

They produced the Indian Councils Act of 1909 (Morley-

Minto reforms), these reforms did not go any significantdistance toward meeting the Indian NationalCongress demand for 'the system of governmentobtaining in Self-Governing British Colonies'.

The Act of 1909 was important for the following reasons:

1. It effectively allowed the election of Indians to the variouslegislative councils in India for the first time. Previouslysome Indians had been appointed to legislative councils.The majorities of the councils remained Britishgovernment appointments. Moreover the electorate waslimited to specific classes of Indian nationals;

2. The introduction of the electoral principle laid thegroundwork for a parliamentary system even though thiswas contrary to the intent of Morley

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3. Muslims had expressed serious concern that a first pastthe post British type of electoral system would leave them

permanently subject to Hindu majority rule. The Act of

1909 stipulated, as demanded by the Muslim leadership

4. that Indian Muslims be allotted reserved seats in the

Municipal and District Boards, in the Provincial Councilsand in the Imperial Legislature;

5. that the number of reserved seats be in excess of their

relative population (25 percent of the Indian population);

and,

6. that only Muslims should vote for candidates for the Muslim

seats ('separate electorates').

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These concessions were a constant source of strife1909-47. British statesmen generally consideredreserved seats as regrettable in that they encouragedcommunal extremism as Muslim candidates did not haveto appeal for Hindu votes and vice versa. As further

power was shifted from the British to Indian politicians in1919, 1935 and after, Muslims were ever moredetermined to hold on to, and if possible expand,reserved seats and their weightage. However, Hindupoliticians repeatedly tried to eliminate reserved seats asthey considered them to be undemocratic and to hinder

the development of a shared Hindu-Muslim Indiannational feeling.

Cont

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Provisions

1. The number of the members of the Legislative Council at the

Center was increased from 16 to 60.2. The number of the members of the Provincial Legislatives was

also increased. It was fixed as 50 in the provinces of Bengal,

Madras and Bombay, and for the rest of the provinces it was 30.

3. The member of the Legislative Councils, both at the Center and

in the provinces, were to be of four categories i.e. ex-officio

members (Governor General and the members of their

Executive Councils), nominated official members (those

nominated by the Governor General and were government

officials), nominated non-official members (nominated by the

Governor General but were not government officials) and

elected members (elected by different categories of Indian

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Provisions

4. The right of separate electorate was given to the Muslims.

5. Official members were to form the majority but in provinces non-

official members would be in majority.

6. The members of the Legislative Councils were permitted to discuss

the budgets, suggest the amendments and even to vote on them;

excluding those items that were included as non-vote items. They

were also entitled to ask supplementary questions during the

legislative proceedings.

Cont

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Provisions

7. The Secretary of State for India was empowered to increase

the number of the Executive Councils of Madras and

Bombay from two to four.

8. Two Indians were nominated to the Council of the

Secretary of State for Indian Affairs.

9. The Governor General was empowered to nominate one

Indian member to his Executive Council.

Cont

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MontaguChelmsford Reforms

The Montagu Chelmsford Reforms or more briefly

known as Mont-Ford Reforms were reforms introduced

by the British Government in India to introduce self-

governing institutions gradually to India. The reforms

take their name from Edwin Samuel Montagu,

the Secretary of State for India during the latter parts of

World War I and Lord Chelmsford, Viceroy of Indiabetween 1916 and 1921.

The reforms were outlined in the Montagu-Chelmsford

Report prepared in 1918 and formed the basis of

the Government of India Act 1919. Indian nationalists

considered that the reforms did not go far enough while

British conservatives were critical of them.32


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MontaguChelmsford Reforms

Edwin Montagu became Secretary of State for India in June

1917 after Austen Chamberlain resigned. He put before theBritish Cabinet a proposed statement containing a phrasethat he intended to work towards "the gradual developmentof free institutions in India with a view to ultimate self-government." Lord Curzon thought that this phrase gavetoo great an emphasis on working towards self-governmentand suggested an alternative phrase that the Governmentwould work towards "increasing association of Indians inevery branch of the administration and the gradualdevelopment of self-governing institutions with a view to theprogressive realization of responsible government in India

as an integral part of the British Empire." The Cabinetapproved the statement with Curzon's phrase incorporatedin place of Montagu's original phrase.

Cont

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Report

In late 1917, Montagu went to India to meet up with Lord

Chelmsford, the Viceroy of India, to meet with leaders of

Indian community to discuss the introduction of limited

self-government to India and protecting the rights of

minority communities

The Report went before Cabinet on 24 May and 7 June

1918 and was embodied in the Government of India Act

of 1919. These reforms represented the maximum

concessions the British were prepared to make at that

time. The franchise was extended, and increasedauthority was given to central and provincial legislative

councils, but the viceroy remained responsible only to

London.34


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Report The changes at the provincial level were significant, as the

provincial legislative councils contained a considerablemajority of elected members. In a system called "diarchy,"

the nation-building departments of government agriculture,

education, public works, and the like were placed under

ministers who were individually responsible to the legislature.

The departments that made up the "steel frame" of British

rule finance, revenue, and home affairs were retained by

executive councilors who were nominated by the Governor.

They were often, but not always, British and who were

responsible to the governor.

In 1921 another change recommended by the report was

carried out when elected local councils were set up in rural

areas, and during the 1920s urban municipal corporations

were made more democratic and "Indianized.35


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It was passed to expand participation of Indians in the

government of India.

The Act embodied the reforms recommended in the

report of the Secretary of State for India, Edwin Montagu,

and the Viceroy, Lord Chelmsford.

The Act covered ten years, from 1919 to 1929.

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Provisions

The Act provided a dual form of government (a "dyarchy")

for the major provinces. In each such province, control of

some areas of government, the "transferred list", were

given to a Government of ministers answerable to the

Provincial Council.

The 'transferred list' included Agriculture, supervision of

local government, Health and Education. The Provincial

Councils were enlarged.

At the same time, all other areas of government (the

'reserved list') remained under the control of the Viceroy.The 'reserved list' included Defense (the

military), Foreign Affairs, and Communications.

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Provisions

The Imperial Legislative Council was enlarged and

reformed. It became a bicameral legislature for all India.

The lower house was the Legislative Assembly of 144

members, of which 104 were elected and 40 werenominated and tenure of three years.

The upper house was the Council of States consisting of

34 elected and 26 nominated members and tenure of

five years.

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