Constitutional History and Making of the Constitution

The East India Company came to India as a trader, but after Plassey (1757) and Buxar (1764) it became a ruler. Its servants grew rich through private trade and gifts while the Company itself was heading towards bankruptcy (it had to ask the British government for a loan in 1772). The Parliament in London therefore stepped in and passed a series of Acts. Read them as one story: first Parliament regulates the Company, then controls it, then slowly takes away its trade, and finally takes over the rule itself. Hold this story in your head and the provisions of each Act will fall into place.

The Regulating Act of 1773 was the first time the British Parliament laid down a written framework for the Company's rule in India. It did not take the rule away; it only tried to bring honesty and some central direction into it. That is why exam answers call it 'the first step to regulate the Company's affairs'.

The revolt of 1857 shook the British. They decided that a trading company could no longer be trusted with an empire, and that Indian opinion could not be ignored completely. So the story now changes from 'control the Company' to 'the Crown rules, and Indians are slowly allowed to speak'. Between 1858 and 1909 three Acts widened the Legislative Councils step by step: 1861 (Indians nominated), 1892 (an indirect election idea and the right to discuss the budget) and 1909 (elections, separate electorates for Muslims, and the first Indian in the Viceroy's Executive Council).

Why did the British want to widen the councils? Because after 1857 they needed Indian cooperation, and after the Indian National Congress was formed in 1885 they needed to answer its demand for a share in legislation. Each Act gave a little: nomination (1861), indirect election and budget discussion (1892), direct election and resolutions (1909). None of them gave real power; the executive stayed fully with the Viceroy.

The First World War changed the mood. India had sent over a million soldiers and Indians now wanted a real share in governing themselves. On 20 August 1917 the Secretary of State, Edwin Montagu, declared that the British aim was 'the gradual development of self-governing institutions and the progressive realisation of responsible government'. The Government of India Act, 1919 was the first answer, and the Government of India Act, 1935 was the second and much bigger one. The Constitution of India borrows so much from the 1935 Act that it is often called the parent of our Constitution.

Dyarchy means 'rule by two'. In 1919 the provincial government was split into two halves: one half answerable to the elected legislature (Transferred) and the other half answerable only to the Governor (Reserved). The important powers, such as finance, police and land revenue, stayed in the Reserved half, so Indians got responsibility without real power.

By 1940 the question was no longer whether the British would leave, but how and to whom they would hand over. Every proposal in this period tried to answer one question: who will frame India's constitution? The British said 'after the war, Indians themselves, through a Constituent Assembly'. The Congress wanted one united India; the Muslim League demanded Pakistan (Lahore Resolution, March 1940). The story of 1940-47 is the story of these two demands colliding, ending in Partition and Independence.

The Cabinet Mission was a clever attempt to keep India united. It refused Pakistan but gave the Muslim-majority provinces a strong group structure inside a weak Union, so that the League could feel safe. It failed because the Congress and the League read the grouping clause differently (was it compulsory or optional?). After that failure, Partition became almost certain.

Our Constitution was not handed to us by a king or by a foreign power. It was written by Indians, sitting together in a hall in Delhi, for nearly three years. That body was the Constituent Assembly. It was set up under the Cabinet Mission Plan of 1946, and its members were not elected directly by the people; they were elected by the members of the provincial legislative assemblies, who had themselves been chosen by a limited electorate. Even so, it represented almost every community, region and shade of opinion, and that is why the Constitution carries such wide acceptance.

Why the Assembly's sovereignty matters: until Independence the Assembly was a creation of the British plan. The Indian Independence Act, 1947 made it a fully sovereign body, free to frame any constitution and even to repeal British laws. From then on, Indians were truly writing their own Constitution.

A hall of nearly three hundred members cannot draft a Constitution line by line. So the Assembly did what every large body does: it divided the work among committees. Some committees decided what the Constitution should contain (the major or substantive committees), some decided how the Assembly itself should run (procedural committees), and one, the Drafting Committee, turned all these decisions into clear legal language. If you remember who headed each committee, a large part of this chapter's questions is solved.

Why is Ambedkar called the 'Chief Architect' although the Drafting Committee had seven members? Because, as T. T. Krishnamachari told the Assembly in November 1948, one member had died, one had resigned, one was in America, one was busy with state affairs and two were unwell, so the main burden of preparing the draft fell on Ambedkar. It was he who piloted the Draft through the Assembly and answered every debate.

After the Drafting Committee's draft had been debated three times, the day of the final vote arrived. Dr. Ambedkar moved the motion 'that the Constitution as settled by the Assembly be passed', and on 26 November 1949 the Assembly adopted, enacted and gave to itself the Constitution. Yet the country did not start living under it that day. It came into full force two months later, on 26 January 1950, a date chosen with great care. Exam questions love the gap between these two dates, so let us learn them with their reasons.

Why 26 January? On 26 January 1930 the Congress, following the Lahore Session of December 1929 (presided over by Nehru), had observed 'Purna Swaraj' (complete independence) day, and every year till 1947 the day was celebrated as Independence Day. The makers chose it for the Constitution to honour that pledge.