CHAPTER 2

HISTORICAL BACKGROUND
The framers of Indian Constitution
They had before them the working of the were not writing on a clean
of India Acts of 1919 and 1935. government under the Gouer
They were, while
also influenced by
geographical necessities, framing the
Constitutition
cultural and social diversities. historical precedents
to study the
It, therefore, would be in the and
constitutional fitness of thine
Constitution formation in the development and factors leading to the
any period beyond the country. However, it is not
be
British Period, for, the necessary to go t
may said modern
originated and developed in that political institutions
to
Period begins with the
have
1600. advent of East India period only. The British
Company in India in the yer
The Coming of the British
East India
the
Company of
Company whose full official title was
Merchants
granted Charter by of London
the British Trading into
The Governor and
the East Indies,
Under the Charter, the Queen, Elizabeth I on was
thecountries that lay Company was December
given the exclusive trading 31, 1b
beyond
The management of the the Cape of Good Hope. rights
and24 Committees. The Company's
the Directors and their Committees were
business
was vested in a o,
The assembly was knownindividuals Gover
who later on became
to make,Charter of 1601 as the
ordain and granted to "the Governor Court of Dire ors.
constitutions,
Company. orders and ordinances
constitute such and and Company,
for the
so
many reasonaPable laws
laws,
With the good governme the
trading centres grant of the
was at or
Surat in 1612.factories Charter,
at
several
the
Company
factories at Bombay, In the course places in India. started establishin its
chief Madras of time, a. Its first
a settlements
Council composed of
or
(Musulipattam) the
Company
settlemen
The Presidencies,
the each and estadi hed its
Calcutta, which De ame ts
known as the Regulating servants
Act of ofadministered
the under a aDd
entire 1773, set Company. Presiaeu
1.
Governor-Generalconsist
territory in India. It
-in-Council
was to
up at
of a
forCaleutta, central
a

regulatingng the Compa

auns
2. Keth,
These A. B.,
Constltutional
included lIndia, Governor-General and a
ouncil

Asia, History
Africa, of India, 1961, 1.
America, otc.
 HISTORICAL BACKGROUND 11
Chap. 2 )
Councillors. The Regulating Act, 1773 empowered the
ancil to make and issue rules, ordinances and
o f f o uo r - G e n e r a l - i n - C o u n d

for
der and civil government of the Company's territory
the good oro
lations
r e g u l a
provided.
for setting up of a Supreme Court at Calcutta,
India. It a ChiChief Justice and three other Judges, who were to be
in of a
c o n s i s t i n g

or Irelan of not less than five years' standing. The

of England be a Court of Record and was to exercise
r r i s t e r s

Court
to
was civil, criminal
Suprem ecclesiastica. jurisdiction. It was to have both original and
and
a d m
lty
appellatejurisdiction.

Act, 1784 introduced far reaching changes in the

Pitt's India
he
Compar government atat Home as well as in the management of India
reorganised the Company's Government at Home and
Che Act,
aftairs. The
authority of he Board of Control and the Court of Directors
the dual
c r e a t e d

Council was reconstituted to have the

The Governor-General's

was to be the
or-General and three other Councillors. One of them
Governor-t
of the Company's Forces in India.
m m a n d e r - i n - C h i e f

about complete centralisation of the

The Charter Act
of 1833 broughtGovernor-General-in-Council.
For the
financial
legislative and fin. powers in the
Governor-General's Council.
Law Members was added to the
fime, a
decisive step in separating the
Act of 1853 took a
The Charter
the executive. For the first time, a separate
lorislative machinery from 12 members.
India was to be created, consisting of
Teislative Council for Governor-General, the Commander-in Chief,
4 Executive
These were to be theadditional members, the latter were to sit or vote only at
Councillors and 6
of the Council which were held for legislative
purposes.
those meetings
of 1853 provided for the appointment, by the Crown,
The Charter Act the unfinished
Commission in England to sort and put into shape
of a Law Commission. Its working resulted in the passing
of
work of the Indian Law and the
the Code of Criminal Procedure, 1861
the Indian Penal Code, 1860;
Code of Civil Procedure, 1859.
in 1857 brought the career
The First War of Indian Independence
British Parliament passed the Government
of the Company to an end. The
and his Councillors Clavering,
3. The first Governor-General Lord Warren Hastings
in the Act, 1773. Banerjee, A.C., Indian
Monsen, Barveil and Francis were named cited
A. Mukherjee & Co., Calcutta (hereinafter
Constilutional Documents 1757-1939,
as L.C.D.), 1948, 19-20.
1774 abolished
the Royal Charter of 1774. The Act,
4The Court was constituted by towns under the Charter Act, 1726.
the Mayor's Courts established in Presidency established under The High
Supreme Court was replaced by the High Courts
ne
Courts Act, 1861.
6. Sir Elijah Impey was the first Chief Justice.
Authorilies
and Constitution of the Courts and Legislative
1erbert Cowell, History
in India, 1936, 38-9.
1784.
The Act was titled "The East India Company Act,
as
first Indian
was the first Law Member,
who presided over the
r Macaulay laws for India. As a result,
WCommission entrusted with the task of drafting
the Indian Penal Code, the Codes of
Civil and Criminal Procedure,
r t s of
came into being.
wno
of the Executive Counel,
ne Law Member was made the full fledged memberfor executive
held purpoSes
T encetorth sit and vote at its meetingsknown as English Law Commission.
Second Law Commission also
 12
CONSTITUTIONAL LAW OF INDIA

ofIndia Act, 1858, for the better government in India

the Government of India from the Company to the BritishThe Act
Act transi
andin Crown. t decd
would be governed by
that thence forward India
Maiesty, the Queen. The territory annexed by E.I. Co he name.
British Crown, came to be known as BRITISH INDIA
Co. and
transte
The Government of India Act, 1858 did not introduce
the constitution of the Government of ndia. An additional Any
erred
Chanq
was conferred on the Governor-General of India.12
12 It was title of
dignity and prestige of the Governor-General as the personal o enhance
ofthe British Crown. the office of Secretary of State was create
Act, 1958.
represent
eated undera t
The Indian Councils Act of 1861 remodelled the
in India, both at the Central and Provincial levels. The legislativ systen
The centralisina
centralising
which had reached its culmination under the Charter Act oende
reversed and the era of decentralisation of powers ushered in. 1833,
The Indian Councils Act, 1909
(Popularly
known as
Reforms) enlarged the size of the Legislative Councils, bothMorley.M
at th
and provincial levels. For the first time, an Indianl3 was
added t
Executant Council of the Governor-General. The Act
considerably enlar
the powers and functions of the Councils. Earlier the Councils
were conee
the right to discuss the budget and ask questions of public
now empowered to ask
importance. Th
were
supplementary
Morley-Minto-Reforms dealt a blow to the national unity. questions. The
The Act of 1909
for the first time introduced the element of communal and class
for the constitution of the Legislative Councils, both at the electorats
central and
provincial levels. The Act of 1909 did not make any significant change in the
autocratic character of the government. The Reforms served as class
against
class and the community against community. Evidently, such a Constitution
could not satisfy the Indians, who were
asking
for their self-government.
The rising national agitation and new awakening led the British
statesmen to reassess the Indian situation. Mr.
State for India, thus, made the historical Montagu,
the Secretary
declaration promisin
substantial reforms in the Indian Administration and
concessions to the Indians. On constitutiona
August 20, 1917,
he in the
declared House
Commons The policy of His Majesty's Government, with whien it
Government of India are in
as8oCLation of Indians in
complete accord, is that of the c e
every branch of administration and the gh
development of self-governing institutions with a view to ressve

realisation of responsible government in the pro5

India as an integral par t the
British Empire."" On the basis of this
India Bill was drafted which was policy statement, the Government
Act, 1919. passed into the Governmen o India

11. Queen Victoria was

the Crown of
12. Lord
Canning, who was the England at that time.
India, Governor-General of India, became
became tne First
the Viceroy
13. Sir S.P. Sinha
was the first
14. LC.D., 201. Indian added to the
See also Keith, Council.
supra note 1, 243.
 HISTORICAL BACKGROUND 13
Chap. 2 1

Governmnent
of India Act, 1919
T h e
Government
of India Act, 1919 popularly known as
forms,
Theue-Chelmsford Refo provided for the relaxation of the control
over Government of India and his powers were
M o n t a of State
Secretary

elegatedto
the Governor-Generalin-Council.
the High
Commissioner for
The Act provided
for the
India. He was to
new
office of
office
new

ation
of a
of the Central Government as well as Provincial
agent
the The Government of India Act, 1919 provided for a
of India.
act as

Governments ture
al Central Legislat1 consisting of the Council of State and the
gislative A s s e mnbly.
bly
Both the Houses of the Central Legislature were to
wers. The powers of the Central Legislature ere
powe
and equal
similar
make laws
for the whole of British India and with respect
have
nlarged.
It could contained
in the Central List.
matters

all the set-up

the Provincial by introducing a new
to Aetof 1919 reoriented
The.
known "Dyarchy". "Dyarchy" is a compound word of
vernment
of
tuwo and "Archia" meaning
rule, meaning thereby rule by two
neaning
double government.
"D or briefly
was introduced by taking the following
thorities

The system of "dyarchy"

new

steps
demarcating a of subjects as Provincial subjects;
number
(a) by into two parts
the Provincial
subjects were further divided
b) the "Iransferred subjects". The
Reserved
"Reserved subjects" and the help of his
administered by the Governor with
subjects were while the Transferred
Councillors who were Europeans,
Executive with the help of
administered by the Governor
were to be
subjects him from amongst
were to be appointed by
Indian Ministers, who The
elected members of the Provincial Legislative Assembly.
the the Governor;
office at the pleasure of
to hold
Ministers were
administer
a larger
measure of freedom to
c)the Provinces were given
their subjects;
heads of r e v e n u e . They were
(d) the Provinces were allocated separate not to depend
to impose and collect taxes
for themselves and were
on the Centre for
finances.
the
Montague-Chelmsford Reforms
of 1919 failed to satisfy
The Committee known as
Reforms Enquiry
Indians' aspirations. In 1924, a to inquire into and report on
the
appointed
uddiman Committee was submitted its Report in
of the Reforms of 1919. The Committee
WOPking the continuance of the
"dyarchy" with
prember, 1925. It recommended members of the Central Assembly
modifications. It was criticised by the
ugnt administration.16 It led to
the appointment
nsuccessful experiment in
of dimon Commission in 1928.
of
under the Presidentship
at Lahore Session of INC,
n 31-12-1929, "Complete Independence"
Resolution of
irom

awaharlal Nehru, a
endeavour of both
Lord E.D.
15. Reforms were So known for these the
were joint
Chelmsford, theViceroy
ot
and Lord
gue, the Secretary of State for India
Provirces
British
16. The Government in the
India Act, had introduced
1919 the Indian
ent of condemned by
government, which was

aders artal responsible

as a unsuccessful experiment
in a d m i n i s t r a t i o n .
half-way house and an
 LAW OF INDIA
14 CONSTITUTIONAL
Chap. 2
26
British rule was passed. On 26-1-1930,
January was
eclared
"Independence Day".
The Simon Commission Report submitted I930, Was condemnea-
in
After the failure of the b y
document.
tne Indians as a reactionaryGovernor-General of India, announced th
Commission, Lord Irwin, the
be held in London to hold discussiat
a
Round Table Conference was to and future reforms. But, the ConOn
the India's constitutional settlement gress
Party refused to participate in the Conference.17 Gandh dhiji started C
Disobedience movement on January 1, 1930, started Dandi March on Mlarch
12, 1930 and Salt Law violated on 6-4-1930.
was
The First Round Table Conference held in London on November-
failed to achieve anvthin.,
1930, in the absence of the Congress Party,
Pact (Gandhi-Irwin Pact)18 was signed between the Governor-General.
Gandhiji and the Congress Party agreed to take part in the Second
Conference which was held in London in September, 1931.1° Because of th
uncompromising attitude of Mr. M.A. Jinnah, the Muslim League leader, th
Second Round Table Conference, could not reach any settlement. On #
failure of these discussions, Mr. Ramsay Macdonald, the British Prime
me
Minister, announced on August 16, 1932, his Communal Award, providina
for separate electorates for every conceivable interest and ng
section, the Hindus
Muslims, Sikhs, Europeans, Landlords, Labours, Commerce, women, and
depressed classes. Gandhiji
could not bear this attack on Indian
the
started his fast unto death against this measure. unity and
The deterioration in the
condition
leaders who opened deliberations with theof Gandhji moved
the Congress
These resulted in the Poona
leaders of the depressed classes.
Pact,20 which was
1932, which mainly dealt with the reservation signed on September 25,
classes and the latter to abandon of seats for the depressed
Communal Award. separate electorates promised in the
The Communal Auward was
was followed by the Third Round modified in the light of the Poona Pact. It
the Third Round T'able Conference. The
and the idea of
Table Conference (Nov. 17 to Dec. 24, discussion at
setting up in India
Indian Federation
an
1932) concluded
The Government emerged.
of India
The British Government Act, 1935
containing reforms published in March, 1933, a White
Select Committee ofproposals. The White Paper was submitted to a
Paper,
the
report recommending someBritish Parliament. This
changes in the Committee submittedJon
17. The
Congress proposals contained the Whiu
in
for India and wanted the Conference
such assurance.
Lord Irwin, the to proceed
on the basis of
18. Under the
Pact, the
Governor-General,
Keith, supra note
1, 291-92. regretted his
Dominion Sta
tatus

inability to B any
detention of all
in Second
Governor-General
Congress leader and ordered the
reciprocatedunconditional
Round
Conference. Congress
from
Table
and agreed releast
19. The
Shri
Conference (SRTC) was to
par
ticipate

20. The Gandhiji was the role held from the

7th
of the September to Ist
pact was representative
signed between the 1931.
The latter
COngress Decembe
"reservation ofagreed to
seats" in abandon
Congress and the leaders at chethisdepressed
separate of the
conference.
asses.
the electorates
composition of and
legislative bodies. they
were promisea
Chap. 2 1 HISTORICAL BACKGROUND 15

Paper. Based on this report the Government of India Bill, 1935 was
introduced in Parliament in December, 1934. The Bill got the Royal assent
on August 4, 1935 and came to be known as the Government of India
Act, 1935.21 The Government of India Act, 1935 dealt with: (a) All India
Federation; (b) Provincial Autonomy; (c) Dyarchy at the Centre; and (d) a
Federal Court.
The Government of India Act, 1935 provided for the abolition of the
system of dyarchy from the British Provinces. All the provincial subjects were
transferred to the Indian Ministers. The Head of the Provincial Government
was to be the Governor, who was required to carry on the government in
accordance with the advice of the. Council of Ministers appointed by the
Governor from amongst the members of the Provincial Legislative Assembly.
The Ministers were made collectively responsible to the Provincial Assembly.
The Governor was required to foster a sense of joint responsibility among
the Ministers.
The Government of India Act, 1935 provided for the division of the
Pederal Subjects into two, the Reserved Side and the Transferred Side. The
Reserved Side was to include defence, external affairs, ecclesiastical matters
and administration of tribal areas. These matters were to be administered
by the Governor-General assisted by the Executive Councillors not more than
3 in number. The Councillors were to be appointed by the Governor-General
who were responsible only to him. The Transferred Side, which included all
the federal subjects excluding the reserved matters, was to be administered
by the Governor-General with the aid and advice of the Council of Ministers.
The Council of Ministers, including not more than 10 Ministers, was to be
appointed by the Governor-General from amongst the members of the stable
majority group in the Federal Legislature. The Council of Ministers was made
collectively responsible to the Federal Assembly. The Governor-General was
expected to act as constitutional head in relation to powers transferred to
popular control of the Council of Ministers.
The Federal Court,2 set up under the Government of India Act, 1935,
was vested with three-fold jurisdiction: () original, (Gi) appellate, and (ii)
advisory.
All India Federation
The All India Federation envisaged under the Act, 1935, was to consist
of eleven British Provinces (British India)3 and such of the Indian Statesa
which, by their voluntary choice, were prepared to join the Federation, in
pursuance of the Instrument of Accession, entered into by the Rulers of the
States individually. The Federation was, however, not to come into operation

21. The Act, 1935 contained 451 Clauses and 15 Schedules. This Act remains the
biggest of the Statutes ever inacted by the British Parliament. The Act, 1935
served as the Constitution of British India till 26th January, 1950 when it was
repealed. See infra 1198, Article 395.
22. The Pederal Court was set up at Delhi on lst October, 1937 and continued to
function till 26th January, 1950, when it was replaced by the Supreme Court of
India. Sir Maurice Gwyer was the first Chief Justice of the Federal Court.
23. The territory which constituted British India consisted of eleven Governor's
Provinces and six Chief Commissioners Provinces.
24. There were 562 States which were mentioned in the Imperial Gazette of India.
 INDIA
16 CONSTITUTIONAL LAw OF

until
of the "the
Red States entitle to one-half of the States seats in
the Upper
Chap. 1
alf of the total
opulaHouse
of the Federal Legislature and having one-ha, States'
had signed their assent to join the Federation.
Federal Executive and
tion
The Federation to have a
Legislature The Federal
was
Executive
including
was
not
to be composed
of edera
rovernor-General and a Council of Ministers, more th:
the Governor-General from amon
nisters, chosen and appointed by in
the Federal Legislature, The ngst the
bly.Councl
members of the stable majority group to the Federal Ass
collectively responsible a Council of Stat 'The
of Minister was made be bicameral, having tate (the
ederal Legislature was to The Council was t PDe
House) and a Assembly (the lower House).
Federal than 104 represent consist
and not more ntatives
ot 156 representatives of British India nominees of the Rulers of the S
Rui
who were to be the
of Indian States, to consist of 250
representatives from British Indteg
1a and
The Assembly was
125 from Indian States.
The Ac, 1935 divided the subjects of legislation into three Lists
the Provisional Legislative List, and the
the Federal Legislative List,
matters, power was vested i
Concurrent List. As regards the residuary th
the Governor-General, to assign it to the Centre or the States, in
his
discretion.
Since the required number of Indian States did not opt to join tha
Federation, the proposed All India Federation never came irto beine
However, the Provincial part of the Act, 1936 came into force in April, 1931.

Provincial Autonomy
The Government of India Act, 1935 provided for the abolition of the
system of dyarchy from the British Provinces. All the provincial subjects were
transferred to the Indian Ministers. The Head of the Provincial Government
was to be the Governor, who was required to carry on the Government in
accordance with the advice of the Council of Ministers, appointed by him,
from amongst the members of the Provincial Legislative Assembly. The
Ministers were made collectively responsible to the Provincial Assembly.
Dyarchy at the Centre
The Government of India
Act, 1935
Dyarchy at the Centre, provided for the division ofintroduced the system o
the Federal Subjects inu
two, the Reserved Side
and the Transferred Side, to be administered by
Governor-General-assisted by the Executive Councillors
Governor-General with the aid and and Dy ers,
respectively. advice' of the Council of
Minisic
On Ist
September,
danger to the free world1939, Germany invaded Poland. Britain the
itselfat war with
and
therefore, 3rd September, 1939, it
on foresaw d
Hitler. Thus,
Governor-General of India, Lord the Second
Linlithgow, also declared decino
World India, a belugan
War started. The
country, at war with Germany, without consulting the popular ries rent
Ministries, It
disappointed the Indian Leaders
in the
Provinces resigned offices and the Congress
Afterholding discussions with November
on
15, 1939.25 NL
Governor-General, issued a statementIndian leaders, Lord Linlithgow, the
on
behalf of the British Governm
m e n t
Chap. 2] HISTORICAL BACKGROUND 17

on 8th August, 1940, popularly known as August Offer. Therein, the

Governor-General promised-full responsible government on the Dominion
status model after the termination of the War; setting up of a Constitution
making body to frame a new Constitution for India; as an interim measure,
the Viceroy to appoint prominent Indians on his Executive Council; setting
up of a separate consultative Couneil consisting of Indians to tender advice
in connection with the conduet of War; and, to secureto India, free and equal
nartnership in the British Commonwealth of Nations. However, the Viceroy
made it clear that no change would be incorporated in the existing
constitutional structure, without the concurrence of the Muslims and other
minorities.

The August Offer was rejected by the Congress as mischievous and

anti-national and uninspiring.

Cripps Mission
The Prime Minister, Churchill,5 having realised that it was difficult to

remain indifferent towards the Indian problem longer, made on March

any
11, 1942, an announcement in the House of Commons, declaring that Sir
Stafford Cripps, socialist member of the British War Council, known for
a
sent to India, for
his genuine sympathy with Indian aspirations, would be
negotiating with the Indian leaders to resolve the Indian deadlock.
Mr. Cripps arrived in India on March 22, 1942. But, his proposals were
rejected by the Congress.2
After the failure of the Cripps Mission, the working committee of the
evolved a
Congress, met in April, 1942. At this meeting, C. Rajagopalachari
formula, known as the C.R. Formula, as the basis for Congress-League
settlement. Gandhiji met Mr. Jinnah in September, 1944, for a settlement
for
on the basis of this Formula. Mr. Jinnah rejected this Formula because
him, it offered only a "maimed, multilated and moth-eaten" Pakistan.27
After the failure of Gandhi-Jinnah talks, Lord Wavell, the Governor
offered in
General, made another effort to resolve the Indian deadlock. He
Plan. The main
June, 1945, a new solution, popularly known as the Wavell
terms of the Plan offered were the reconstitution of the Viceroy's Executive
Council, consisting of only Indian members and the resumption of responsible
government in the Provinces. A conference was called at Simla on June 29,
1945 to which were invited the prominent leaders of the Congress, the
Muslim League, Sikhs, Scheduled Castes, Europeans, the Unionistmet Party of
with
the Punjab, Gandhiji and Mr. Jinnah. The Conference, however,
failure.

26. Churchill had denounced the demand for self-government by Indians. ile had once
"I have not become His Majesty's First Minister to preside over the
remarked
liquidation of British Empire."
26, The Cripps proposals were rejected as inadequate, concerned mainly with the future,
not contemplating any transter of real power immediately to Indian hands.
27. Mr. Jinnah insisted that Pakistan must include the whole of the six Muslim majority
Provinces, i.e., Sind, NWFP, Punjab, Bengal, Assam and Baluchistan, without giving
the non-Muslims the right of participation in the plebiscite. He was also opposed
to any joint control of subjects like defence, commerce and communications.
 INDIA
18 CONSTITUTIONAL LAW OF
Chap. 2
The Cabinet Mission Plan, 1946
1945, the Labour Party
In elections in England, held in
the replaced by Lord At
power with an absolute majority. Churchill was 1ssued a state4
the Prime linister on 10th July, 1945. Lord Atlee tement,
wherein, he clearly admitted
to
India's right
the British Government
leterminati
won
Consequently, Mr. Attlee announced that
the Indian political
uld be
Sending a Cabinet Mission to India to resolve deadlor
The Cabinet Mission,
consisting of Lord Pethick Lawrence Lawrence the
Sir Stafford Crip
of India; ripps; and Mr
genuine friend
AV. Alexander,
Secretary the aFirst
of State, Lord of British Admiralty, arrived inions
India
held
on
proposals after discussior
24th
1946. The Mission
framed its
March, The Long.h
them in two instalments.
Indian Leaders and presented offered on 16th Ma m
constitutional settlement, was
Plan, relating to for setting up of interim govern
and the Short-Term Plan, providing 1946. nment
in India, was presented on 16th June,
submitted on May 16, 1946, offered the ma
The Long-Term Plan
and the Muslim League could realise fh their
by which the Congress which the Congress could preser
contradictory aims. It made provisions by serve
a united India and yet the League could achieve the reality of Pakistan. T
Plan was as follows
1) There was to be a three-tier federal government consisting of a Union
of India, three groups of Provinces and the individual Provinces and Indian
States. (2) At the top of the three-tier authority, there was to be a Union of
India, embracing both British India and the Indian States. (3) The Provinces,
enioying a wide measure of self-government would constitute another tier
All subjects other than the Union subjects and the residuary powers were to
vest in the Provinces. (4) To
provide for the midway tier, the Provinces were
given freedom to form themselves into groups,3 having group executive and
group legislature. The group governments were to deal
with such common
subjects as the units within the
groups were to decide.
Constitutional Settlement
The Cabinet Mission (Constituent Assembly)
proposed the calling of a Constituent
representing both British India Assembiy
Consist of 389 members, 296 fromand Indian States. The Assembly was
Each British India British India and 93 from Indian
to its Province was to be allotted a number of seats in States
the
population. The seats so
allotted to a Province were to proport
main communities, be
population of each of these general, Muslims ar.d Sikhs, in divided an
i.e.,
of each community communities in that Province. The
were to be
proportion
members of thatrepresenta
elected by the
the
Legislative Assembly of that
allotted among themselves the Province. The State's seatscommunity
of electing on
the basis of were to
preliminary stage,representatives was to be population of the States. node

28. The
they were to be settled by
represented by a consultation.Tnehethe

(These
Plan
proposed three groups of
were
Negotiating Comm ittee.

Orissa), the Bombay, Madras, United Provinces, namely, the

Bind North-Western
and Baluchistan) and Muslim Provinces. CentralHindu Major
ajority Group
were Assam
the Majority Provinces, nd
and
Bengal). North-EasternGroup
Muslim
(These were Pun D WFP
Majority These
GrouP
 Chap. 2 1 HISTORICAL BACKGROUND 19

-osentatives, both from Provinces and the States, were to meet in

e l h i to constitute the Constituent Assembly. They were to divide
themselves cording to the groups of Provinces, to draw up their group.
nstitutions. They were to decide what subjects would be dealt with by the
gTOup Government. After the group Constitutions were settled, the members
l i the Groups were to meet again, as a whole, to settle the details of the
1n Constitution. The members of all the Groups were to sit in appropriate
sections in the Assembi After the first general elections to be held under
the new Constitution, a Province would have the freedom to change its group
with the vote of its Legislature.
Under the Short term Plan, June 16, 1946, the Mission envisaged the
immediate setting up of an Interim Government. It was to carry on the
administration while the Constituent Assembly would be framing the
Constitution. It was to consist of 14 members, six Congress, five Muslim
Ieague, one Indian Christian, one Sikh and one Parsi. All the portfolios were
to be held by the Indians constituting the Interim Government. The British
Government was to extend full cooperation to it in its working.
The Cabinet Mission Plan was accepted by the end of June, 1946 and
in July, 1946, the elections were held to constitute the Constituent Assembly.
Out of total seats of 296, the Congress could count upon the allegiance of
212 while the Muslim League could win only 73 seats. The election results
disappointed Mr. Jinnah who got doubtful about his success in the
Constituent Assembly. So, on July 29, 1946, he withdrew the League's
acceptance of the Plan.
Lord Wavell, the Governor-General, on 14th August, 1946, invited Mr.
Jawaharlal Nehru, the leader of the Indian National Congress, to form
Interim Govern.ment. Mr. Jinnah, the League Leader, was persuaded by the
Governor-General to join and cooperate with the Congress in the Interim
Government.

Mountbatten Plan--June 3, 1947

Mr. Attlee, the British Prime Minister, declared on 20th February, 1947
that power would be transferred to Indian hands by a date not later than
3rd June, 1948. The war time appointment of Lord Wavell was terminated
and Mr. Attlee sent Lord Mountbatten on the Indian scene and was assigned
the job of transferring power to Indians, with all convenient speed.
Soon after his arrival in India, Lord Mountbatten held discussions with
the Indian leaders and inferred that partition alone could solve the Indian
problem and save the country from chaos. He succeeded in reconciling the
Congress Leaders to the idea of partition. The Congress Leaders at last
accepted this solution with heavy heart. Immediately thereafter, Lord
Mountbatten left for England to get his plan of partition approved by the
British Cabinet. The plan was readily accepted by the British Cabinet. The
Viceroy returned to India and announced his plan on June 3, 1947.
Based on the Mountbatten Plan, the Indian Independence Bill was
introduced in the House of Commons on July 4, 1947. It secureu the approval
of both the Houses of British Parliament and was assented to by His
 CONSTITUTIONAL
LAW
OF
INDIA

Indepena.
Chap. 2
20 known
as
the
Indian

ence Act
to be
18th July,
on
Majesty
1947
1947. Act, as
follows-

I n d e p e n d e n c e
were
Act, shall
Indian of the and Pakistan,
et up
The provisions India
important Dominions,

The

1. Two
independent
1947. headed.
headed by aa Governor-GGeneral to
Governor-Gen

15th
August,
would be
would he recommendations of the
on
ninions the
nero
Dominions
on
the of Majesty The same
may be
2. Each
appointed
by His D o m i n i o n s .

be the
of each of both the
D o m i n i o n s , 3 0

West
government
of
Governor-General Baluchistan, West Punj t

the comprising Sind, NWPP,

and the territories of Sylhet
territories Pakistan

3. The constitute
West
constitute
East Pakistan The exact
would
would de
be determined by a
East Bengal D o m i n i o n s were to
districtand the two
boundaries
of
Boundary Commission Dominion
Dominion shall
shall act as ant

of each
Constituent Assembly full power to make f
lawss for
4. The Legislature having
Central
prouisional
its Dominion. India would ceas
Parliament over
of the British
5. The jurisdiction 1947.
on 15th August, Government for the Government
British
6. The responsibility of the 15th August, 1947.
to an end on
of India would come

was to
exercise full powers and authority
7. The Governor-General Act into operation.
for the Indian Independence
bringing
new Constitution,
each of the Dominions
8. Pending the framing of a India
was to be governed in
accordance with the Government of
the appropriate authority
Act, 1935, with such modification as
would like to make.
the
9. The existing terms and conditions of service of the members of
Services shall continue until changed by the appropriate authornty.
10. The British Paramountey over the Pr1ncely States would lapse on
15th August, 1947 and each State would be free to join eiter
Dominion or to declare itself
independent.
FRAMING OF INDIA's CONSTITUTION
The Constituent Assembly3 constituted in the
provisions of the Cabinet Mission Plan, 1946, heldaccordancew
its first meetins,
on
December 9, 1946 under the Presidentship of Dr.
Due to a uifference
of opinion arisen between the Sachchinanda sn
League regarding the constitution of the Congress and the ague
Constituted Assembly, the
of England at that time (1937 to 1952). Lep
29. King George VI
30. Congress leaders the Crownwas

both the proposed

Dominions. Lord Mr.
However,
Mountbatten
Jinnah did
to not accept their prop ral
a who
for
continue
Mountabatten was, thus requested to be the
as
Governor-General Governor-ue
of the h r. iLord
acted as such till 19th
31. Rajagopalachiari, who continuedJune,as 1948
The
where he was
replaced Dy
Shri

Constituent Assembly was notsuch,

the Cabinet
till 26th
January, 1950.
Mission Plan. It became
a
sovereign body, since it was
work within

sovereign on 15-8-1947.
Chap. 2 ]J
HISTORICAL
nbers did not attend and the
BACKGROUND
21
Assembly began to unction
mem

non-Muslim League members only. There function

on
tution Hall. ewere only
on 9-12-1946 in the Constitution
on 299 member with
only 299
Hall. On 11th members
the
the
rasad elected who met
Rajendra
ember, 1946,
was
Mr.
to be the
President
of the December,
1946, Dr.
Jawaharlal Nehru moved in Assembly.
Deetives Resolution" enshrining On 13th
the Assembly an
nle of therein
people and the great objectives the
of India and ideals and
Constitution. The Objectiues Resolution was to be achievedaspiration
of the
by the new
99nd January, 1947. Soon after, the adopted by the Assembly on
with different aspects or the neW Assembly appointed committees to deal
Committees were, the Union PowersConstitution.
Committee,
Some of the
important
the Union Constitution
Committee, the Provincial
on Minorities, FundamentalConstitution Committee, the Advisory Committee
Rights Committee, Committee
financial relations between the Union and the Provinces. to deal with the
The reports of these Committees considered by the Assembly. On
were
29th August, 1947, the Assembly appointed a Drafting Committee with Dr.
B.R. Ambedkar as its Chairman, to prepare a draft of the Constitution, after
studying the reports submitted by the Committees. The Draft Constitution
was submitted to the Assembly in February, 1948. It was published and
given a very wide circulation throughout the country. Eight months were
given to the people of India, to discuss the Draft and make suggestions. No
fewer than 7,635 amendments were received and as many as 2,473 were
actually discussed and many of them were accepted. The Drafting Committee
was asked to prepare second Draft of the Constitution, incorporating the
a

amendments accepted by the Assembly. The second Draft was presented

to
discussion of the
the Assembly in November, 1948. Then, clause by clause
concluded on October 17, 1949.
second Draft started on Nov. 15, 1948 and
4
the Assembly adjourned for about
On the adoption of all the clauses, to prepare the
Committee was required
weeks, during which, the Drafting of the discussion held in the
in the light
final Draft of the Constitution,adopted by it. The final Dratt was presented
ASsembly and the amendments held a general
1949. There was
discussion
To the Assembly on November 3, discussion ended on
Constitution. The
Draft
various aspects of the Constitution was finaly adopted by
the
0n when the new Members of the
1949
ODember 26, so adopted
was signed by
284
Constitution, On adoption,
ASSembly. The that day, 894 days after Independence.
translation w a s signed
Constituent Assembly o n language. A Hindi
Constitution w a s in English Sessions and took
2 years, 11
he held 11
Constituent Assembly
n 1950.32 The
months and 18 days to
complete the job.

to the
Article
394-A,
added text of
Amendment), 1987 authoritative

tn he the