Historical Background — Government of India Acts, Constituent Assembly

The Constitution of India became effective on 26 January 1950. It did not arrive on a blank slate. For close to a century before that date, India was governed under a layered sequence of British statutes — the Government of India Act, 1858; the Indian Councils Acts of 1861, 1892 and 1909; the Government of India Act, 1919; and the Government of India Act, 1935. Each of these statutes added a thin layer of representative machinery on top of an essentially executive, Crown-controlled administration. The text adopted on 26 November 1949 is, in a real sense, the constitutional inheritor of that long statutory chain — even as it broke decisively with its colonial parent.

This chapter traces the historical perspective: from the East India Company's commercial charter, through the transfer of sovereignty to the British Crown in 1858, to the Cripps and Cabinet Missions, the formation of the Constituent Assembly, the Indian Independence Act, 1947, and the three years of drafting that produced the longest written organic instrument in the world. For the judiciary aspirant, the Government of India Act, 1935, supplied not only the administrative architecture but the verbatim language of many provisions of the present Constitution. Reading the new salient features and sources of the Indian Constitution against this historical background is the first analytical move of the subject. The colonial statutes also fixed the contours of subjects later refined in the Constitution — the franchise that became universal adult suffrage under the chapter on elections and the Election Commission, and the question of who counted as British Indian subject that was reframed by the chapter on citizenship under Articles 5 to 11.

Pre-1858: The East India Company era

The legal authority of the British in India did not begin with the Crown. It began with a commercial charter granted by Queen Elizabeth I in 1600 to the East India Company. For nearly two and a half centuries thereafter, India was administered by a trading corporation that gradually acquired military, fiscal and judicial powers. The Regulating Act of 1773 was the first attempt by the British Parliament to bring the Company under parliamentary supervision. It created the office of Governor-General of Bengal and a Supreme Court at Calcutta. Pitt's India Act, 1784, followed; it set up a Board of Control in London and divided authority over Indian affairs between the Crown and the Company.

Successive Charter Acts — 1813, 1833, 1853 — progressively reduced the Company's commercial monopoly and expanded its administrative role. The Charter Act of 1833 made the Governor-General of Bengal the Governor-General of India and created an all-India legislative power. The Charter Act of 1853 separated the executive and legislative functions of the Governor-General's Council and introduced an open competitive examination for the civil services. By the 1850s the Company had effectively become an administrator clothed in the form of a trader.

Government of India Act, 1858 — Crown takes charge

The Revolt of 1857 made the dual structure untenable. The Government of India Act, 1858, transferred the government, territories and revenues of India from the East India Company to the British Crown. The Act abolished the Company and the Board of Control; in their place it created the office of Secretary of State for India, a member of the British Cabinet, advised by a Council of India of fifteen members. The Governor-General in India was redesignated Viceroy as the Crown's representative.

The 1858 Act was an instrument of administrative rearrangement, not of political reform. It did not alter the system of government in India in any liberal direction. All effective power continued to flow downward from London — through the Secretary of State, the Viceroy and the Governors — with no element of representation for the governed.

The Indian Councils Acts — 1861, 1892, 1909 (Morley-Minto)

Three statutes between 1861 and 1909 introduced a slow trickle of Indian participation into legislative councils that were, until then, purely executive bodies.

The Indian Councils Act, 1861, restored the legislative powers of the Bombay and Madras presidencies and added non-official Indian members to the Governor-General's Council for legislative business. The numbers were small and the members nominated, but the principle of association — however nominal — had been admitted.

The Indian Councils Act, 1892, increased the size of the central and provincial legislative councils, expanded their functions to include discussion of the budget and the asking of questions, and introduced an indirect, limited element of election through recommendation by local bodies. The Act did not use the word "election"; the Crown nominated all members, but a recommendation system gave a fig-leaf of representativeness.

The Indian Councils Act, 1909, popularly the Morley-Minto Reforms, after Lord Morley (Secretary of State) and Lord Minto (Viceroy), made two important changes. First, it enlarged the legislative councils and admitted the principle of direct election to them, though through a complicated communal and class-based franchise. Second — and most controversially — it introduced separate electorates for Muslims, who were to vote only for Muslim candidates in reserved constituencies. The 1909 Act is therefore remembered both as the first introduction of representative election into the Indian legislature and as the instrument that institutionalised communal representation, a feature whose long shadow reached into Partition itself.

Government of India Act, 1919 — the Montagu-Chelmsford reforms and dyarchy

The Government of India Act, 1919, gave statutory effect to the Montagu-Chelmsford Report of 1918, prepared by Edwin Montagu (Secretary of State) and Lord Chelmsford (Viceroy). The 1919 Act introduced three structural ideas that mattered for Indian constitutional development.

The first was the separation of central and provincial subjects. Subjects of administration were divided into a central list and a provincial list — the earliest statutory ancestor of the Union and State Lists in the Seventh Schedule of the present Constitution. The provinces were given limited revenue sources of their own, and the financial relationship between the Centre and the provinces became a subject in itself.

The second was the introduction of dyarchy in the provinces. Provincial subjects were divided into two categories. "Reserved" subjects (such as land revenue, justice, police and irrigation) were administered by the Governor and his Executive Councillors, who were responsible only to the Governor and through him to the Secretary of State. "Transferred" subjects (such as education, public health, agriculture and local self-government) were administered by Indian Ministers responsible to the elected Provincial Legislative Council. This split executive — two ministries, one of them democratically responsible — was the dyarchy that gave the 1919 Act its distinctive character. It was an awkward experiment, and the report of the Indian Statutory Commission of 1930 (the Simon Commission) recorded its failure.

The third change was the introduction of a bicameral central legislature consisting of the Council of State (the upper chamber) and the Legislative Assembly (the lower chamber), with a substantially expanded element of direct election. The franchise, however, remained narrow — based on property, education and tax-paying qualifications.

Simon Commission and Round Table Conferences — the bridge to 1935

The 1919 Act required a statutory review at the end of ten years. The Indian Statutory Commission, popularly the Simon Commission, was appointed in November 1927 under the chairmanship of Sir John Simon. The Commission was boycotted across the political spectrum because it contained no Indian member. Its 1930 Report nevertheless became the documentary foundation for the next round of constitutional reform. It recommended the abolition of dyarchy, full provincial autonomy, the creation of an All-India Federation embracing British India and the Princely States, and the retention of communal electorates pending a political settlement.

The British Government convened three Round Table Conferences in London between 1930 and 1932 to discuss the Simon Report and to negotiate with Indian political opinion. The First Conference (1930) was boycotted by the Congress; the Second (1931) was attended by Mahatma Gandhi as the sole Congress representative under the Gandhi-Irwin Pact; the Third (1932) was again sparsely attended. The Conferences produced the Communal Award of 1932 (subsequently revised by the Poona Pact between Gandhi and Dr. Ambedkar) and the White Paper of 1933, which set out the British Government's proposals. A Joint Select Committee of the British Parliament, chaired by Lord Linlithgow, examined the White Paper and reported in 1934. The resulting Bill, after exhaustive parliamentary debate, became the Government of India Act, 1935.

Government of India Act, 1935 — the federal scheme that did not fully launch

The Government of India Act, 1935, was the longest and most elaborate Act ever passed by the British Parliament — running to 321 sections and 10 schedules. It rested on three reports: the Simon Commission (1930), the three Round Table Conferences in London (1930-1932), and the resulting White Paper of 1933. The Act came into force in stages from 1937 onward and supplied the immediate constitutional architecture against which the framers of the present Constitution worked.

Three features of the 1935 Act deserve particular attention.

First, the Act sought to change the character of the Indian government from unitary to federal. The proposed All-India Federation was to consist of the Provinces of British India and the Princely States that chose to accede. Subjects were distributed among three lists — Federal, Provincial and Concurrent — and a Federal Court was created to adjudicate disputes between the federating units. The structure of three legislative lists and a Federal/Supreme Court designed to police constitutional boundaries reappears, refined, in the present Constitution. For a deeper treatment, see the chapter on distribution of legislative powers.

Second, the federal scheme never became fully operative. The Princely States declined to accede in sufficient numbers and the federal portion of the Act was suspended. The Centre therefore continued to function under the older Government of India Act, 1919, with a Governor-General assisted by a nominated Executive Council, while the provincial portions of the 1935 Act were brought into force in 1937. Provincial autonomy replaced provincial dyarchy: the provinces were placed under elected Indian governments answerable to elected legislatures, although the Governor retained extensive special responsibilities and discretionary powers.

Third, dyarchy migrated from the provinces to the Centre. The 1935 Act abolished provincial dyarchy but proposed dyarchy at the Centre — Central subjects were to be divided into reserved and transferred categories. Because the federal scheme never came into force, this Central dyarchy never operated either.

For all its incompleteness, the 1935 Act left a deep imprint on the Constitution. Many provisions of the present text are reproduced from the 1935 Act in nearly identical language; the structural division between the Union and its Territory, the institutional design of the Union Executive, and the architecture of emergency provisions all draw heavily on the 1935 template. The bicameral central legislature of 1919, refined by the 1935 Act, was the institutional forerunner of the present Union Legislature — Parliament's composition, powers and procedure. The Constitution did not begin from a blank statute book; it began from a working code that needed to be re-cast into a sovereign democratic frame.

Cripps Mission, 1942 — the first concrete promise

The Second World War transformed Indian political demands. By 1940, the Indian National Congress had refused to cooperate with the war effort unless a definite political settlement was offered. The British Government's first concrete response was the Cripps Mission of March 1942, led by Sir Stafford Cripps, a member of the British War Cabinet.

The Cripps Proposals, while never formally accepted, made two acknowledgements that were doctrinally important. They accepted, for the first time, that India would be granted Dominion Status after the war and that a constitution-making body composed of elected Indians would be set up to frame the post-war constitution. They also acknowledged the right of any province not to accede to the proposed Indian Union. The proposals were rejected by the Congress, the Muslim League and other major parties — the Congress on the ground that they did not offer immediate transfer of power, the League on the ground that they did not concede a separate Pakistan in clear terms. Mahatma Gandhi famously described the offer as a "post-dated cheque". But the principle of an Indian-elected constituent body had now entered the field.

Cabinet Mission, 1946 — and the formation of the Constituent Assembly

The Labour Government that took office in Britain in 1945 sent the Cabinet Mission to India in March 1946. The Mission consisted of three British Cabinet Ministers — Lord Pethick-Lawrence (Secretary of State for India), Sir Stafford Cripps and A.V. Alexander. After protracted negotiations with the Congress and the Muslim League, the Mission published its Plan in May 1946.

The Cabinet Mission Plan proposed a three-tier constitutional structure: a Union dealing with foreign affairs, defence and communications; groups of provinces with their own subjects; and the provinces themselves. Crucially, the Plan provided for the constitution of an indirectly elected Constituent Assembly. Members were to be elected by the Provincial Legislative Assemblies — the elected lower houses of the provinces under the 1935 Act — through proportional representation by means of the single transferable vote. The Princely States were to be represented by nominees of the Princes.

Elections to the Constituent Assembly were held in July-August 1946. The Indian National Congress secured an overwhelming majority of the general seats; the Muslim League won most of the seats reserved for Muslims. The Assembly was thus an indirectly elected body, working on a limited franchise, but it was the most representative constitution-making body that India had ever assembled.

The Constituent Assembly at work

The Constituent Assembly met for the first time on 9 December 1946. Dr. Sachchidananda Sinha, the senior-most member, was appointed temporary Chairman. Two days later, on 11 December 1946, Dr. Rajendra Prasad was elected the permanent President of the Assembly. On 13 December 1946, Jawaharlal Nehru moved the historic Objectives Resolution, declaring India's intention to constitute itself into an Independent Sovereign Republic and to secure to all its people justice, social, economic and political; equality of status and opportunity; and fundamental freedoms. The Resolution was adopted on 22 January 1947 and later became the basis of the Preamble — its object, components and amendability.

The Muslim League, however, refused to participate in the Assembly. The political deadlock between the Congress and the League over the question of Pakistan made progress almost impossible. The deadlock was resolved by the Indian Independence Act, 1947.

Indian Independence Act, 1947 — Partition and full sovereignty

The Indian Independence Act, 1947, was passed by the British Parliament on 18 July 1947. It received royal assent the same day and came into operation on 15 August 1947. The Act did three things of constitutional importance.

First, it partitioned British India into two independent Dominions — India and Pakistan — with effect from 15 August 1947. Each Dominion was given a separate Constituent Assembly with full and unfettered power to frame its own constitution.

Second, it terminated the suzerainty of the British Crown over the Princely States. The States were free to accede to either Dominion or to remain independent; the actual integration of more than 560 Princely States into the Indian Union was achieved through the Instruments of Accession negotiated by Sardar Patel and V.P. Menon.

Third, it converted the Constituent Assembly of India into a sovereign body. Until 14 August 1947, the Assembly had been a body created by the Cabinet Mission Plan, deriving its legal authority from a British executive decision. From 15 August 1947, it became a fully sovereign legislature for the new Dominion of India, with power not only to frame the Constitution but also to legislate as the interim Parliament of the country pending the Constitution's commencement.

The drafting — three years of work

Once the political deadlock was broken, the Constituent Assembly settled to its primary task. It worked through a structure of committees. The most important was the Drafting Committee, set up by the Assembly on 29 August 1947 under the chairmanship of Dr. B.R. Ambedkar. The Committee was charged with preparing a draft Constitution on the basis of the reports of the various subject-matter committees — Union Powers, Union Constitution, Provincial Constitution, Fundamental Rights, Minorities and so on.

The Drafting Committee produced its Draft Constitution in February 1948. The Draft was then circulated for public comment, considered by the Assembly clause by clause, and amended over the next twenty months. The Assembly held eleven sessions across the period 9 December 1946 to 24 January 1950, sitting for a total of 165 days. The drafting work alone occupied nearly three years and consumed a substantial portion of the Assembly's plenary time.

The Constitution was finally adopted on 26 November 1949 — a date now commemorated as Constitution Day. Most of its provisions came into force on 26 January 1950, the date deliberately chosen to mark the anniversary of the Purna Swaraj declaration of 1930. A few articles relating to citizenship, elections and provisional Parliament were brought into operation immediately on 26 November 1949 to enable the transition to the new constitutional regime.

Why the historical background matters for the modern reader

The historical perspective is not antiquarian background. It is doctrinally load-bearing in three concrete ways.

First, the language of the present Constitution borrows heavily from the Government of India Act, 1935. Provisions on the executive, the legislature, the financial relationship between the Centre and the States, and the emergency machinery all carry the imprint of the 1935 Act. When a court interprets a provision whose ancestry lies in the 1935 Act, the legislative history of the parent provision is often a relevant aid to construction.

Second, the Constituent Assembly debates remain a primary source for original intent. Where the text is ambiguous, the speeches and exchanges in the Assembly between 1946 and 1949 are routinely cited by the Supreme Court. The judgments developing the basic structure doctrine after Kesavananda Bharati draw repeatedly on Assembly material to identify what the framers regarded as essential.

Third, the historical sequence explains the document's choices. The decision to adopt a parliamentary rather than presidential executive, to write a federal constitution that nonetheless leans markedly toward the Centre, to enumerate Fundamental Rights with reasonable restrictions, and to entrench judicial review — each is intelligible only against the experience of a hundred years of statutory rule and the political compromises of the late 1940s.

The next chapter in this sequence builds on the historical foundation by examining the resulting salient features of the Indian Constitution and the sources from which they were drawn. For the broader subject map, the Constitution of India notes hub indexes every chapter in the syllabus, from Fundamental Rights through to the Schedules.

Frequently asked questions

When did the Constitution of India come into force?

Most of the Constitution came into force on 26 January 1950, the date commemorated as Republic Day. The Constitution was, however, adopted by the Constituent Assembly nearly two months earlier, on 26 November 1949, which is observed as Constitution Day. A small group of articles dealing with citizenship, elections and the provisional Parliament were brought into operation immediately on 26 November 1949 to enable the transition between the colonial regime under the Government of India Act, 1935, and the new constitutional order.

What was the dyarchy introduced by the Government of India Act, 1919?

Dyarchy was the system of dual government introduced in the provinces by the 1919 Act. Provincial subjects were divided into 'Reserved' and 'Transferred'. Reserved subjects — land revenue, justice, police, irrigation — were administered by the Governor through his Executive Councillors, responsible only upward to the Secretary of State. Transferred subjects — education, public health, agriculture, local self-government — were administered by Indian Ministers responsible to the elected Provincial Legislative Council. The 1935 Act abolished provincial dyarchy and proposed Central dyarchy instead, which never came into force.

Why did the federal scheme of the Government of India Act, 1935, never fully operate?

The 1935 federal scheme required the Princely States to accede in sufficient numbers to make the All-India Federation viable. The Princes declined to accede on the terms offered, and the federal portion of the Act was therefore suspended. The Centre continued to be governed under the older Government of India Act, 1919, with a Governor-General assisted by a nominated Executive Council. Only the provincial portions of the 1935 Act came into force in 1937, replacing provincial dyarchy with provincial autonomy under elected Indian governments.

How was the Constituent Assembly of India constituted?

The Constituent Assembly was set up in pursuance of the Cabinet Mission Plan of May 1946. Members were elected indirectly by the Provincial Legislative Assemblies — the elected lower houses of the provinces under the Government of India Act, 1935 — through proportional representation by means of the single transferable vote. The Princely States were represented by nominees of the Princes. The Assembly first met on 9 December 1946. After the Indian Independence Act, 1947, came into force, it became a fully sovereign legislature for the new Dominion of India.

Who chaired the Drafting Committee of the Constitution?

The Drafting Committee was set up by the Constituent Assembly on 29 August 1947 under the chairmanship of Dr. B.R. Ambedkar. The Committee prepared the Draft Constitution on the basis of the reports of the various subject-matter committees, circulated it for public comment in February 1948, and worked with the Assembly through clause-by-clause consideration over the following twenty months. The Constitution was finally adopted on 26 November 1949 and brought into force on 26 January 1950.

What was the importance of the Cabinet Mission Plan for Indian constitutional development?

The Cabinet Mission Plan of May 1946 set out the structure under which the Constituent Assembly was actually constituted. It proposed a three-tier scheme — Union, groups of provinces, and provinces — and provided for an indirectly elected constitution-making body. Although the political grouping scheme broke down because of the Congress-League dispute, the electoral framework for the Assembly survived. The Assembly that eventually framed the Constitution drew its initial legal authority from the Cabinet Mission Plan and acquired full sovereignty only on 15 August 1947 with the Indian Independence Act.