MAKING OF INDIAN CONSTITUTION OF INDIA

MAKING OF INDIAN

CONSTITUTION

OF

INDIA

KANCHAN Ku. MEENA

ROLL NO. 03

LLM 2ND TERM (E)

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INDEX

1. Background

2. Evolution of the constitution

Regulating Act of 1773

Charter Act of 1813

Charter Act 1833

Government of India Act 1858

Indian Councils Act 1861

Indian Councils Act 1892

Indian Councils Act 1909

Government of India Act 1919

Simon Commission

Government of India Act 1935

Cripps' mission (March 1942)

Cabinet Mission to India 1946

Indian Independence Act 1947

3. Constituent Assembly

Drafting of Indian Constitution

4. Conclusion

5. References

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Background

By 1773, the East India Company was in dire financial straits.The Company was important to Britain because it was a monopoly trading company in India and in the east and many influential people were shareholders. The Company paid GB£400,000 annually to the government to maintain the monopoly but had been unable to meet its commitments because of the loss of tea sales.Lord North decided to overhaul the management of the East India Company 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 the East India Company.

The Company had taken over large areas of India for trading 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. The East India Company was still a powerful lobbying group in Parliament in spite of its financial problems.

Provisions of the Regulating Act

The Act limited Company dividends to 6% until it repaid a GB£1.5M 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 and subsumed the presidencies of Madras and Bombay under Bengal's control.

The Act named four additiona men to serve with the Governor-General on the Calcutta Council: Lt-Gen John Clavering, George Monson,

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Richard Barwell, and Philip Francis. Barwell was the only one with previous experience in India. These councillors 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.

Regulating Act of 1773

The Regulating Act of 1773 was an Act of the Parliament of Great Britain intended to overhaul the management of the East India Company's rule in India. The Act did not prove to be a long-term solution to concerns over the Company's affairs; Pitt's India Act was therefore subsequently enacted in 1784 as a more radical reform.

Charter Act of 1813

The East India Company Act 1813, also known as the Charter Act of 1813, was an Act of the Parliament of the United Kingdom which renewed the charter issued to the British East India Company, and 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, 1.The Act expressly asserted the Crown's sovereignty over British India. 2.It allotted Rs 100,000 to promote education in India. 3.Christian missionaries were allowed to come to British India and preach their religion.The power of the provincial governments and courts in India over European British subjects was also strengthened by the Act. Financial provision was also made to encourage a revival in Indian literature and for the promotion of science.

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The Company's charter had previously been renewed by the Charter Act of 1793, and was next renewed by the Government of India Act 1833.

India as a British Colony: The charter act of 1813 legalized the British colonization of India and the territorial possessions of the company were allowed to remain under its government, but were held "in trust for his majesty, his heirs and successors” for the service of Government of India. This act made the Governor General of Bengal the Governor General of British India and all financial and administrative powers were centralized in the hands of Governor General-in-Council. Thus with Charter Act of 1833, Lord William Bentinck became the “First Governor General of British India”.

The number of the members of the Governor General's council was again fixed to 4, which had been reduced by the Pitt's India act. However, certain limits were imposed on the functioning of the 4th member. The 4th member was NOT entitled to act as a member of the council except for legislative purposes.First fourth person to be appointed as the member of the Council was Lord Macaulay.

Split in Bengal Presidency: The Charter Act of 1833 provided for splitting the Presidency of Bengal, into two presidencies which were to be known as

1. Presidency of Fort William

2. Presidency of Agra.

But this provision never came into effect, and was suspended later. Enhanced Power of Governor General of India Charter act of 1833 distinctly spelt out the powers of the Governor-General-in-Council. He could repeal, amend or alter any laws or regulations including all persons (whether British or native or foreigners), all places and things in

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every part of British territory in India, for all servants of the company, and articles of war. However, the Court of Directors acting under the Board of control could veto any laws made by the Governor-General-in-Council.

Government of India Act 1858

The Government of India Act 1858 is an Act of the Parliament of the United Kingdom passed on August 2, 1858. Its provisions called for the liquidation of the British East India Company (who had up to this point been ruling British India under the auspices of Parliament) and the transference of its functions to the British Crown. Lord Palmerston, then-Prime Minister of the United Kingdom, introduced a bill for the transfer of control of the Government of India from the East India Company to the Crown, referring to the grave defects in the existing system of the government of India.

The main provisions of the bill were:

The Company's territories in India were to be vested in the Queen, the Company ceasing to exercise its power and control over these territories. India was to be governed in the Queen's name.

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

The Secretary of State for India was empowered to send some secret despatches to India directly without consulting the Council. He was also authorised to constitute special committees of his Council.

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The Crown was empowered to appoint a Governor-General and the 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 the Company as they related to treaties, contracts, and so forth.

The Act ushered in a new period of Indian history, bringing about the end of Company rule in India. The era of the new British Raj would last until Partition of India in August 1947, at which time all of the territory of the Raj was granted dominion status within the Dominion of Pakistan and the Union of India.

Indian Councils Act 1861

The Indian Councils Act 1861 was an Act of the Parliament of the United Kingdom that 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 separate department in Calcutta's government: home, revenue, government, law, finance, and (after 1874) public works. The military Commander-in-Chief sat in with the council as an extraordinary member. The Viceroy was allowed, under the provisions of the Act, to overrule the council on affairs if he deemed it necessary - as was the case in 1879, during the tenure of Lord Lytton.

The Secretary of State for India at the time the Act was passed, Sir Charles Wood, believed that the Act was of immense importance: "the act is a great experiment. That everything is changing in India is obvious

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enough, and that the old autocratic government cannot stand unmodified is indisputable.

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 good Government" of their respective presidencies.

Indian Councils Act 1892

The Indian Councils Act 1892 was an Act of the Parliament of the United Kingdom that authorised an increase in the size of the various legislative councils in British India. 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 universities, district board, municipalities , zamindars and chambers of commerce were empowered to recommend members to provincial councils. 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 put questions within certain limits to the government on the matter of public interest after giving six days' notice . Thus it prepared the base of Indian Democracy.

Indian Councils Act 1909

The Indian Councils Act 1909, commonly known as the Morley-Minto Reforms, was an Act of the Parliament of the United Kingdom 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

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Minto, believed that cracking down on terrorism 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 Indian upper classes and the growing Westernised section of the population.

They produced the Indian Councils Act of 1909 (Morley-Minto reforms), these reforms did not go any significant distance toward meeting the Indian National Congress demand for 'the system of government obtaining in Self-Governing British Colonies'.

The Act of 1909 was important for the following reasons:

It effectively allowed the election of Indians to the various legislative councils in India for the first time. Previously some Indians had been appointed to legislative councils. The majorities of the councils remained British government appointments. Moreover the electorate was limited to specific classes of Indian nationals;

The introduction of the electoral principle laid the groundwork for a parliamentary system even though this was contrary to the intent of Morley. As stated by Burke and Quraishi -

“To Lord Curzon's apprehension that the new Councils could become 'parliamentary bodies in miniature', Morley vehemently replied that, 'if it could be said that this chapter of reforms led directly or indirectly to the establishment of a parliamentary system in India, I for one would have nothing at all to do with it'. But he had already confessed in a letter to Minto in June 1906 that while it was inconceivable to adapt English political institutions to the 'nations who inhabit India...the spirit of English institutions is a different thing and it is a thing that we cannot escape, even if we wished...because the British constituencies are the

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masters, and they will assuredly insist.. .all parties alike.. .on the spirit of their own political system being applied to India.' He never got down to explaining how the spirit of the British system of government could be achieved without its body.”

Muslims had expressed serious concern that a ‘first past the 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 that Indian Muslims be allotted reserved seats in the Municipal and District Boards, in the Provincial Councils and in the Imperial Legislature; that the number of reserved seats be in excess of their relative population (25 percent of the Indian population); and, that only Muslims should vote for candidates for the Muslim seats ('separate electorates').

These concessions were a constant source of strife 1909-47. British statesmen generally considered reserved seats as regrettable in that they encouraged communal extremism as Muslim candidates did not have to appeal for Hindu votes and vice versa. As further power was shifted from the British to Indian politicians in 1919, 1935 and after, Muslims were ever more determined to hold on to, and if possible expand, reserved seats and their weightage. However, Hindu politicians repeatedly tried to eliminate reserved seats as they considered them to be undemocratic and to hinder the development of a shared Hindu-Muslim Indian national feeling.

In 1906, Lord Morley, the Secretary of State for Indian Affairs, announced in the British parliament that his government wanted to introduce new reforms for India, in which the locals were to be given more powers in legislative affairs. With this, a series of correspondences started between him and Lord Minto, the then Governor General of

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India. A committee was appointed by the Government of India to propose a scheme of reforms. The committee submitted its report, and after the approval of Lord Minto and Lord Morley, the Act of 1909 was passed by the British parliament. The Act of 1909 is commonly known as the Minto-Morley Reforms. The following were the main features of the Act of 1909:

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 people).

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.

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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.

Government of India Act 1919

The Government of India Act 1919 was an Act of the Parliament of the United Kingdom. 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. This retraction of British imperialism was a result of India's enthusiastic participation in World War I.

The Act provided a dual form of government (a "diarchy") 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.

The Imperial Legislative Council was enlarged and reformed. It became a bicameral legislature for all India. The lower house was the Legislative

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Assembly of 144 members, of which 104 were elected and 40 were nominated 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.

Simon Commission

The Government of India Act 1919 had introduced the system of diarchy to govern the provinces of British India. However, the Indian public clamored for revision of the difficult diarchy form of government, and the Government of India Act 1920 itself stated that a commission would be appointed after 10 years to investigate the progress of the governance scheme and suggest new steps for reform. In the late 1920s, the Conservative government then in power in Britain feared imminent electoral defeat at the hands of the Labor Party, and also feared the effects of the consequent transference of control of India to such an "inexperienced" body. Hence, it appointed seven MPs (including Chairman Simon) to constitute the commission that had been promised in 1919 that would look into the state of Indian constitutional affairs. The people of the Indian subcontinent were outraged and insulted, as the Simon Commission, which was to determine the future of India, did not include a single Indian member in it. The Indian National Congress, at its December 1927 meeting in Madras (now Chennai), resolved to boycott the Commission and challenged Lord Birkenhead, the Secretary of State for India, to draft a constitution that would be acceptable to the Indian populace. A faction of the Muslim League, led by Mohammed Ali Jinnah, also decided to boycott the Commission.

An All-India Committee for Cooperation with the Simon Commission was established by the Council of India and by selection by the Viceroy The Lord Irwin. The members of the committee were: Sir C. Sankaran

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Nair (Chairman), Sir Arthur Froom, Rajah Nawab Ali Khan, Sardar Shivdev Singh Uberoi, Nawab Sir Zulfiqar Ali Khan, Sir Hari Singh Gour, Sir Abdullah Al-Mamun Suhrawardy, Kikabhai Premchand and Rao Bahadur M. C. Rajah.

In Burma (Myanmar), which was included in the terms of reference of the Simon Commission, there was strong suspicion either that Burma's unpopular union with India would continue, or that the constitution recommended for Burma by the Simon Commission would be less generous than that chosen for India; these suspicions resulted in tension and violence in Burma leading to the rebellion of Saya San.

The Commission’s recommendations were:

Future Advance - The first principle was that the new constitution should, as far as possible, contain within itself provision for its own development. It should not lay down too rigid and uniform a plan, but should allow for natural growth and diversity. Constitutional progress should be the outcome of practical experience. Where further legislation is required, it should result from the needs of the time, not from the arbitrary demands of a fixed time-table. The constitution,while contemplating and conforming to an ultimate objective, should not attempt to lay down the length or the number of the stages of the journey…. It has been a characteristic of the evolution of responsible government in other parts of the British Empire that the details of the constitution have not been exhaustively defined in statutory language. On the contrary, the constitutions of the self-governing parts of the British Empire have developed as the result of natural growth, and progress has depended not so much on changes made at intervals in the language of an Act of Parliament, as on the development of conventions, and on the terms of instructions issued from time to time to the Crown's

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representative. The Preamble to the Government of India Act declares that progress in giving effect to the policy of the progressive realisation of responsible government in British India can only be achieved by successive stages; but there is no reason why the length of these successive stages should be defined in advance, or why every stage should be marked by a commission of enquiry."Almost Responsible Government at the Provincial Level – Diarchy should be scrapped and Ministers responsible to the Legislature would be entrusted with all provincial areas of responsibility. However, safeguards were considered necessary in areas such as the maintenance of peace and tranquility and the protection of the legitimate interest of the minorities. These safeguards would be provided, mainly, by the grant of special powers to the Governor.

· Federation – The Report considered that a formally federal union, including both British India and the Princely States, was the only long-term solution for a united, autonomous India.

· Immediate Recommendations at the Centre - to help the growth of political consciousness in the people, the franchise should be extended; and the Legislature enlarged. Otherwise, no substantial change was recommended in the Centre. The Report strongly opposed the introduction of Diarchy at the Centre. It should be noted that Simon set great store on having a unanimous report. This could only be done if he recommended no change at the centre as: the diehards were opposed to any Indian responsibility at the Centre: the Conservative leadership would oppose any responsibility at the Centre which did not build in conservative-pro-British control (as they tried to do in the Government of India Act 1935; and, Labor would oppose the type of gerrymandering at the Centre necessary to meet the requirements of the Conservative leadership.

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Protest and death of Lala Lajpat Rai

Almost immediately with its arrival in Bombay on February 3, 1928, the Simon Commission was confronted by throngs of protestors. The entire country observed a hartal (strike), and many people turned out to greet the Commission with black flags. Similar protests occurred in every major Indian city that the seven British MPs visited. However, one protest against the Simon Commission would gain infamy above all the others.

On October 30, 1928, the Simon Commission arrived in Lahore where, as with the rest of the country, its arrival was met with massive amounts of protesters and black flags. The Lahore protest was led by Indian nationalist Lala Lajpat Rai, who had moved a resolution against the Commission in the Legislative Assembly of Punjab in February 1928. In order to make way for the Commission, the local police force began beating protestors with their lathis (sticks). The police were particularly brutal towards Lala Lajpat Rai, who died later on November 17, 1928.

Aftermath

The Commission published its 17-volume report in 1930. It proposed the abolition of diarchy and the establishment of representative government in the provinces. It also recommended that separate communal electorates be retained, but only until tensions between Hindus and Muslims had died down. Noting that educated Indians opposed the Commission and also that communal tensions had increased instead of decreased, the British government opted for another method of dealing with the constitutional issues of India. Before the publication of the report, the British government stated that Indian opinion would henceforth be taken into account, and that the natural outcome of the constitutional process would be dominion status for India. The outcome

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of the Simon Commission was the Government of India Act 1935, which established representative government at the provincial level in India and is the basis of many parts of the Indian Constitution. In 1937 the first elections were held in the Provinces, resulting in Congress Governments being returned in almost all Provinces. In September 1928, Mr. Motilal Nehru presented his Nehru Report to counter British charges that Indians could not find a constitutional consensus among themselves, it advocated that India be given dominion status of complete internal self-government.

Members of the Commission

Sir John Simon (chairman)

Clement Attlee

Harry Levy-Lawson, 1st Viscount Burnham

Edward Cadogan

Vernon Hartshorn

George Lane-Fox

Donald Howard, 3rd Baron Strathcona and Mount Royal

Government of India Act 1935

The Government of India Act 1935 was originally passed in August 1935, and is said to have been the longest (British) Act of Parliament ever enacted by that time. Because of its length[citation needed], the Act was retroactively split by the Government of India (Reprinting) Act 1935 into two separate Acts:

The Government of India Act 1935

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The Government of Burma Act 1935

Overview

The most significant aspects of the Act were: the grant of a large measure of autonomy to the provinces of British India (ending the system of dyarchy introduced by the Government of India Act 1919) provision for the establishment of a "Federation of India", to be made up of both British India and some or all of the "princely states" the introduction of direct elections, thus increasing the franchise from seven million to thirty-five million people a partial reorganization of the provinces:

Sindh was separated from Bombay

Bihar and Orissa were split into separate provinces of Bihar and Orissa

Burma was completely separated from India

Aden was also detached from India, and established as a separate colony membership of the provincial assemblies was altered so as to include more elected Indian representatives, who were now able to form majorities and be appointed to form governments the establishment of a Federal Court

However, the degree of autonomy introduced at the provincial level was subject to important limitations: the provincial Governors retained important reserve powers, and the British authorities also retained a right to suspend responsible government.

The parts of the Act intended to establish the Federation of India never came into operation, due to opposition from rulers of the princely states. The remaining parts of the Act came into force in 1937, when the first elections under the Act were also held.

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Cabinet Mission to India 1946

The British Cabinet Mission of 1946 to India aimed to discuss and plan for the transfer of power from the British Raj to Indian leadership, providing India with independence under Dominion status in the Commonwealth of Nations. Formulated at the initiative of Clement Attlee, the Prime Minister of the United Kingdom, the mission consisted of Lord Pethick-Lawrence, the Secretary of State for India, Sir Stafford Cripps, President of the Board of Trade, and A. V. Alexander, the First Lord of the Admiralty. However, Lord Wavell, the Viceroy of India, did not participate.

Purpose and proposals

The Mission's purpose was to: Hold preparatory discussions with elected representatives of British India and the Indian states in order to secure agreement as to the method of framing the constitution. Set up a constitution body. Set up an Executive Council with the support of the main Indian parties.

The Mission held talks with the representatives of the Indian National Congress and the All-India Muslim League, the two largest political parties in the Constituent Assembly of India. The two parties planned to determine a power-sharing arrangement between Hindus and Muslims to prevent a communal dispute, and to determine whether British India would be better-off unified or divided. The Congress party under Gandhi-Nehru nexus wanted to obtain a strong central government with more powers compared to state governments. The All India Muslim League under Jinnah, wanted to keep India united but with political safeguards provided to Muslims such as 'guarantee' of 'parity' in the legislatures. This stance of the League was backed up by the wide belief of Muslims that the British Raj was simply going to be turned in to a

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'Hindu Raj' once the British departed; and since the Muslim League was the sole spokesman party of Indian Muslims, it was incumbent up on it to take the matter up with the Crown. After initial dialogue, the Mission proposed its plan over the composition of the new government on May 16, 1946:

Plan of May 16

Promulgated on 16 May 1946, the plan to create a united dominion of India as a loose confederation of provinces came to be known by the date of its announcement: A united Dominion of India would be given independence. Muslim-majority provinces would be grouped - Baluchistan, Sind, Punjab and North-West Frontier Province would form one group, and Bengal and Assam would form another. Hindu-majority provinces in central and southern India would form another group. The Central government would be empowered to run foreign affairs, defense and communications, while the rest of powers and responsibility would belong to the provinces, coordinated by groups.

Plan of June 16

The plan of May 16, 1946 had envisaged a united India in line with Congress and Muslim League aspirations. But that was where the consensus between the two parties ended since Congress abhorred the idea of having groupings of Muslim majority provinces and that of Hindu majority provinces with the intention of 'balancing' each other at the Central Legislature. The Muslim League could not accept any changes to this plan since the same 'balance' or 'parity' that Congress was loath to accept formed the basis of Muslim demands of 'political

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safeguards' built in to post-British Indian laws so as to prevent absolute rule of Hindus over Muslims.

Reaching an impasse, the British proposed a second, alternative plan on June 16, 1946. This plan sought to arrange for India to be divided into Hindu-majority India and a Muslim-majority India that would later be renamed Pakistan, since Congress had vehemently rejected 'parity' at the Centre. A list of princely states of India that would be permitted to accede to either dominion or attain independence was also drawn up.

The Cabinet Mission arrived in India on March 23, 1946 and in Delhi on April 2, 1946. The announcement of the Plan on May 16, 1946 was preceded by the Simla Conference of 1945 in the first week of May.

Reactions and acceptance

The approval of the plans would determine the composition of the new government. The Congress Working Committee had initially approved the plan. However, on 10 July, Jawaharlal Nehru, who later became the first prime minister of India, held a press conference in Bombay declaring that the Congress had agreed only to participate in the Constituent Assembly and "regards itself free to change or modify the Cabinet Mission Plan as it thought best." The Congress ruled out the June 16 plan, seeing it as the division of India into small states[citation needed]. Moreover, the Congress was a Centralist party. Intellectuals like Kanji Dawarkadas criticized the Cabinet Plan. Congress was against decentralization and it had been under pressure from Indian capitalists who wanted a strong Center. The plan's strongest opponent was the principal Indian leader Mohandas Gandhi, due to the reason that the territories had been grouped together on the basis of religion.[citation needed]

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The Muslim League gave its approval to the plan for 2 reasons:

1:grave issues were involved and Muslim league sincerely desirous for a peaceful solution.

2:The basic and foundation of Pakistan are inherent in the mission plan, by virtue of the compulsory grouping, of the 5 Muslim provinces (Punjab, Sindh, Balochistan, NWFP, Bengal & Assam) Jinnah, in his speech to the League Council, clearly stated that he recommended acceptance only because nothing better could be obtained.[citation needed] However, on declaration from the Congress President that the Congress could change the scheme through its majority in the Constituent Assembly, this meant that the minorities would be placed at the mercy of the majority. The Muslim League Council met at Bombay on 27 July. "Mr. Jinnah in his opening speech reiterated the demand for Pakistan as the only course left open to the Muslim League. After three days' discussion, the Council passed a resolution rejecting the Cabinet Mission Plan. It also decided to resort to direct action for the achievement of Pakistan."

However, the plan had its advocates. Maulana Azad, a nationalist Muslim leader, said that while the groupings were a major concession to the theme of religious separatism, it would also force the League to accept a framework for a united India. While assuring minority rights and participation, an independent India would be free to do away eventually with the groupings arrangement. Gandhi criticized the Maulana's views for ignoring practical considerations and League ambitions. Cabinet Mission plan had similar recommendations already in news and intellectual circles from 1940. Ambedkar, Maulana Ubaidullah Sindhi and Maulana Azad already gave such recommendations. Ambedkar wrote his book in 1940, Maulana Sindhi

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gave his manifesto of new party in 1939 based on decentralize India while Azad ABC plan was also similar to Cabinet Mission. Azad's position was very tricky yet Gandhi ji and Patel at that moment changed AZAD and installed Jawahar Lal Nehru as president. Kanji Dawarka Das in his famous book "Ten Years to freedom 1937-47" and Jaswant singh in his recent book "Jinnah India-Independence-Partition" writes all details of congress working committee debates and untimely press conference by JLN in which congress rejected the last effort to avoid partition.

Formation of a government

The Viceroy began organizing the transfer of power to a Congress-League coalition. But League president Muhammad Ali Jinnah denounced the hesitant and conditional approval of the Congress and rescinded League approval of both plans. Thus Congress leaders entered the newly styled Viceroy's Executive Council: Jawaharlal Nehru became the head - vice president in title, but possessing the executive authority. Vallabhbhai Patel became the Home member - responsible for internal security and government agencies. Congress-led governments were formed in most provinces - including in the NWFP, in Punjab (a coalition with the Shiromani Akali Dal and the Unionist Muslim League). The League led governments in Bengal and Sind. The Constituent Assembly was instructed to begin work to write a new constitution for India.

Coalition and breakdown

Jinnah and the League condemned the new government, and vowed to agitate for Pakistan by any means possible. Disorder arose in Punjab and Bengal, including the cities of Delhi, Bombay and Calcutta. On the League-organized Direct Action Day, over 5,000 people were killed

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across India, and Hindu, Sikh and Muslim mobs began clashing routinely. Viceroy Wavell stalled the Central government's efforts to stop the disorder, and the provinces were instructed to leave this to the governors, who did not undertake any major action. To end the disorder and rising bloodshed, Wavell encouraged Nehru to ask the League to enter the government. While Patel and most Congress leaders were opposed to conceding to a party that was organizing disorder, Nehru conceded in hope of preserving communal peace.

League leaders entered the council under the leadership of Liaquat Ali Khan, the future first Prime Minister of Pakistan who became the finance minister. But the council did not function in harmony - separate meetings were not held by League ministers, and both parties vetoed the major initiatives proposed by the other, highlighting their ideological differences and political antagonism. At the arrival of the new (and proclaimed as the last) viceroy, Lord Mountbatten of Burma in early 1947, Congress leaders expressed the view that the coalition was unworkable. This led to the eventual proposal, and acceptance of the partition of India. The rejection of cabinet mission plan led to a resurgence of confrontational politics beginning with the Muslim League's Direct action day and the subsequent Bihar killings. The portioning of responsibility between the League, the Congress and the British Colonial Administration for this breakdown continues to be a topic of fierce disagreement.

Cripps' mission MARCH 1942

The Cripps mission was an attempt in late March 1942 by the British government to secure Indian cooperation and support for their efforts in World War II. The mission was headed by Sir Stafford Cripps, a senior

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left-wing politician and government minister in the War Cabinet of Prime Minister Winston Churchill.

Background

In 1939 the Viceroy, Lord Linlithgow, declared India a belligerent state on the side of the Allies without consulting Indian political leaders or the elected provincial representatives. This caused considerable resentment in India and provoked the resignation en masse of elected Congress Party Provincial Governments, giving rise to the prospect of public revolt and political disorder in India. The British feared the destabilizing of India which could be fatal to discouraging further advances in Asia by the Japanese, as well as detrimental to obtaining much-needed resources and manpower to fight the war in Europe.

After December 1941 the situation for Britain in Asia became critical with the entry of Japan into the war, and the rapid Japanese conquest of Malaya and the military bastion of Singapore, plus the Dutch East Indies. Japanese invasions of Burma and India seemed next. The British government wanted the cooperation and support of Indian political leaders in order to recruit more Indians into the British Indian Army, which was fighting in the Middle East theatre, and which expanded to over 2½ million men, the largest volunteer army in history.

Debate over cooperation or protest

The Congress was divided upon its response to India's entry into World War II. Angry over the decision made by the Viceroy of India, some Congress leaders favored launching a popular revolt against the British despite the gravity of the war in Europe, which threatened Britain's own freedom. Others, such as Chakravarti Rajagopalachari, advocated

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offering an olive branch to the British, supporting them in this crucial time in the hope that the gesture would be reciprocated with independence after the war. The major leader, Mohandas Gandhi, was opposed to Indian involvement in the war as he would not morally endorse a war and also suspected British intentions, believing that the British were not sincere about Indian aspirations for freedom. But Rajagopalachari, backed by Sardar Vallabhbhai Patel, Maulana Azad and Jawaharlal Nehru held talks with Cripps and offered full support in return for immediate self-government, and eventual independence.

The leader of the Muslim League, Muhammad Ali Jinnah, supported the war effort and condemned the Congress policy. Insisting on a Pakistan, a separate Muslim state, he resisted Congress's calls for pan-Indian cooperation and immediate independence.

Cripps meeting Mahatma Gandhi during the Second World War

Upon his arrival in India, Cripps held talks with Indian leaders. There is some confusion over what Cripps had been authorized to offer India's nationalist politicians by Churchill and Leo Amery (His Majesty's Secretary of State for India), and he also faced hostility from the Viceroy, Victor Hope, 2nd Marquess of Linlithgow. He began by offering India full dominion status at the end of the war, with the chance to secede from the Commonwealth and go for total independence. Privately, Cripps also promised to get rid of Linlithgow and grant India Dominion Status with immediate effect, reserving only the Defense Ministry for the British.

However, in public, he failed to present any concrete proposals for greater self-government in the short term, other than a vague commitment to increase the number of Indian members of the Viceroy's Executive Council. Cripps spent much of his time in encouraging

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Congress leaders and Jinnah to come to a common, public arrangement in support of the war and government.

There was little trust between the British and Congress by this stage, and both sides felt that the other was concealing its true plans. The Congress stopped talks with Cripps and, guided by Gandhi, the national leadership demanded immediate self-government in return for war support. Gandhi said that Cripp's offer of Dominion Status after the war was a "post-dated cheque drawn on a crashing bank".

Quit India Movement

When the British remained unresponsive, Gandhi and the Indian National Congress began planning a major public revolt, the Quit India movement, which demanded immediate British withdrawal from India. As the Imperial Japanese Army advanced closer to India with the conquest of Burma, Indians perceived an inability upon the part of the British to defend Indian soil. Japan set up the Indian National Army, led by Subhas Chandra Bose, to fight the British. It comprised Indians, most of them prisoners captured with the fall of Singapore in early 1942. The British response to the Quit India movement was to jail most of the Congress leadership.

Jinnah's Muslim League condemned the Quit India movement and participated in provincial governments as well as the legislative councils of the Raj. It encouraged Muslims to participate in the war. With this cooperation, the British were able to continue administering India for the duration of the war using officials and military personnel where Indian politicians could not be found. This would not prove to be feasible in the long term, however.

Causes of Failure

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Gupta points out that three reasons have been given for the failure the Cripps mission: 1) Gandhi's opposition led the Indian National Congress to reject the British offer; 2) Cripps' modification of the original British offer, which provided for no real transfer of power; 3) the behind-the-scenes efforts of the Viceroy and Secretary of State for India to sabotage the mission. Gupta concludes that documents released in 1970 support the third interpretation. Messages between Viceroy Lord Linlithgow and Secretary of State L. S. S. Amery reveal that both opposed the Cripps Mission and they deliberately undercut Cripps. While the British government utilized the Cripps Mission as evidence of its liberal colonial policy, personal and private correspondence reveals contempt for the mission and elation over its failure.

Long term impact

The long-term significance of the Cripps Mission really became apparent only in the aftermath of the war, as troops were demobilized and sent back home. Even Churchill recognized that there could be no retraction of the offer of Independence which Cripps had made, but by the end of the war, Churchill was out of power and could do nothing but watch as the new Labor government gave India independence. This confidence that the British would soon leave was reflected in the readiness with which Congress politicians stood in the elections of 1945–1946 and formed provincial governments. In retrospect, this unsuccessful and badly-planned attempt to placate the Congress in return for temporary wartime support was the point at which the British departure from India became inevitable.

Indian Independence Act 1947

The Indian Independence Act 1947 was as an Act of the Parliament of the United Kingdom that partitioned British India into the two new

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independent dominions of India and Pakistan. The Act received the royal assent on 18 July 1947, and the two new countries came into being on 15 and 14 August respectively.

The legislation was formulated by the government of Prime Minister Clement Attlee, after representatives of the Indian National Congress, the Muslim League, and the Sikh community came to an agreement with the Viceroy of India, Lord Mountbatten of Burma, on what has come to be known as the 3 June Plan or Mountbatten Plan.

The background to the Act

Attlee’s announcement The Prime Minister of the United Kingdom, Clement Attlee, announced on 20 February 1947 that: British Government would grant full self government to British India by June 1948 at the latest, The future of Princely States would be decided after the date of final transfer is decided 3 June Plan The British government proposed a plan announced on 3 June 1947 that included these principles:

Principle of Partition of India was accepted by the British Government

Successor governments would be given dominion status

Implicit right to secede from the British Commonwealth

The Indian Independence Act 1947 was the implementation of June 3 Plan.

The Act's provisions

The Act's most important provisions were:

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the division of British India into the two new and fully sovereign dominions of India and Pakistan, with effect from 15 August 1947;

the partition of the provinces of Bengal and Punjab between the two new countries;

the establishment of the office of Governor-General in each of the two new countries, as representative of the Crown;

the conferral of complete legislative authority upon the respective Constituent Assemblies of the two new countries;

the termination of British suzerainty over the princely states, with effect from 15 August 1947, and recognized the right of states to accede to either dominion

the dropping of the use of the title "Emperor of India" by the British monarch (this was subsequently done by King George VI by royal proclamation on 22 June 1948).

The Act also made provision for the division of joint property, etc. between the two new countries, including in particular the division of the armed forces.

It is a general impression that the Indian Independence Act 1947 is just an act that was passed by the British Parliament and if the same Parliament passes similar other act over-riding the act, India will become a part of the Britain. Thus, India is still a subject for British Parliament under Indian Independence Act, 1947.

Aftermath

Dominion of India

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Lord Mountbatten of Burma, the last Viceroy, was retained as the Governor-General of India. Jawaharlal Nehru became the Prime Minister of India and Sardar Vallabhbhai Patel became the Deputy Prime Minister of India. Over 560 princely states, including Jammu and Kashmir, acceded to India, with the states of Junagadh and Hyderabad annexed after military action.

Dominion of Pakistan

Muhammad Ali Jinnah became the Governor-General of Pakistan, and Liaquat Ali Khan became the Prime Minister of Pakistan.

Three princely states geographically inalienable to Pakistan joined the Dominion.

Partition

Main articles: Partition of India and Radcliffe Line

There was much violence as many Muslims from what would become India fled to Pakistan; and Hindus from what would become Pakistan fled to India. Many people left behind all their possessions and property, to avoid the violence and flee to their new country.

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Drafting of Indian Constitution

On the 14 August 1947 meeting of the Assembly, a proposal for forming various committees was presented. Such committees included a Committee on Fundamental Rights, the Union Powers Committee and Union Constitution Committee. On 29 August 1947, the Drafting Committee was appointed, with Dr Ambedkar as the Chairman along with six other members assisted by a constitutional advisor.These members were K M Munshi (Ex- Home Minister, Bombay),Alladi Krishnaswami Iyer (Ex- Advocate General, Madras State), N Gopalaswami Ayengar(Ex-Prime Minister, J &K and later member of Nehru Cabinet),B L Mitter (Ex-Advocate General, India), Md. Saadullah (Ex- Chief Minister Assam,Muslim League member) and D P Khaitan (Scion of Khaitan Business family and a renowned lawyer).The constitutional advisor was Sir Benegal Narsing Rau.(Who became First Indian Judge in International Court of Justice,1950-54). Later B L Mitter resigned and was replaced by Madhav Rao (Legal Advisor of Maharaja of Vadodara).Due to death of D P Khaitan, T T Krishnamachari was chosen to drafting committee.A Draft Constitution was prepared by the committee and submitted to the Assembly on 4 November 1947.Draft

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constitution was debated and over 2000 amendments were moved over a period of two years. Finally on 26 Nov. 1949,the process completed and Constituent assembly adopted the constitution. 284 members signed the document and the process of constitution making was complete.

The architects of India’s constitution, though drawing on many external sources, were most heavily influenced by the British model of parliamentary democracy. In addition, a number of principles were adopted from the Constitution of the United States of America, including the separation of powers among the major branches of government, the establishment of a supreme court, and the adoption, albeit in modified form, of a federal structure (a constitutional division of power between the Union (central) government and state governments)

The Assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution. After many deliberations and some modifications over 111 plenary sessions in 114 days, the 308 members of the Assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950. The original Constitution of India is hand-written with beautiful calligraphy, each page beautified and decorated by artists from Santiniketan including Beohar Rammanohar Sinha and Nand Lal Bose. Two days later, on 26 January 1950, the Constitution of India became the law of all the States and territories of India.Rs. 63,96,273 was official estimate of expenditure on constituent assembly.

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Conclusion

The idea of constituent assembly had always been linked with the growth of the freedom movement in India. the concept of the Constituent assembly is an implied right of the people to determine their own future and to decide the nature and type of the polity under which they desired to live. It was perhaps for this reason that during the last few centuries it was reorganized all over the world that the people had an inherent right to give themselves, through a representative assembly of then own, a Constitution made according to their own peculiar culture and history serving in their best interests.

It took the Constituent Assembly nearly three years to frame the Constitution of India. It was no mere accident that it was written in English. The British Constitution is an unwritten unitary Constitution, and it is based on the doctrine of the supremacy of the British Parliament. Its main feature was a cabinet forming representative government, with a monarch as it Constitutional head. The form had been adapted in a modified form for the federal government envisaged in the government of India act. The supreme court of India has held that the

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Indian Constitution is based on the Westminster model of cabinet government, incorporating most of its characteristic feature. The gradual introduction of representative government had familiarized political parties in the British India with the working of the cabinet form of the representative government. The study of admiration for, the Constitutional history of England made the British form of government adapted to a federal Constitution, appears to be the most appropriate for of government under Indian Constitution. That form of government had increasingly demanded high standards of character and conduct from members of legislature, the judiciary, and the civil services.

References

Introduction to the Constitution of India by Dr. Durga Das Basu

Constitutional law part 1 Introduction

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