Constitutional History and Development of India
Part I of the constitutional law series
The Indian Constitution was adopted on 26th November 1949 and enforced on 26th January 1950. But why was 26th January chosen as the day of enforcement of the Indian Constitution?
That is because the Indian National Congress declared Purna Swaraj, i.e. the declaration of Indian independence from Britishers, on 26th January 1929 during their Lahore session.
Prior to the constituent assembly that convened in 1948 to draft the Indian constitution adopted in 1950, the fundamental law of India was mostly embodied in a series of statutes enacted by the British Parliament.
Key among them was the Government of India Acts of 1919 and 1935.
The Government of India Act of 1919
Passed as a measure of gratitude for India’s role in the First World War, the primary purpose of the Government of India Act of 1919 was to expand native participation in the government.
Key reforms of the Act were the establishment of a dual form of government with limited powers for the major provinces. The imperial legislative council was transformed into a bicameral legislature for all of India.
Bicameral: a type of legislature, one divided into two separate assemblies, chambers, or houses.
Finally, the act established the position of a High Commissioner with residence in London to Represent India in the United Kingdom.
The Government of India Act of 1935
This Act was adopted in response to opposition and criticisms from the National Congress of India to the 1919 Act for doing too little in terms of granting autonomy.
Its key provisions included:
- Abolition of the dual form of government or diarchy and the granting of a larger degree of autonomy for the provinces;
- Establishment of a Federation of India (which never came into force though);
- Introduction of direct suffrage and extension of the franchise to 37 million people from the original 5 million;
- 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.
The Indian Constitution and Constituent Assembly
In 1946, the British decided to examine the possibility of granting independence to India.
As a result, a British cabinet mission was despatched to India to (1) hold discussions with the representatives of British India and the Indian States in order to agree on the framework for writing a constitution, and (2), set up a constituent body and an executive council.
Following this mission and the ensuing negotiations, a Constituent Assembly (CA) was indirectly elected by the provincial legislatures comprising 278 representatives and 15 women.
A Constituent Assembly was indirectly elected by the provincial legislatures comprising 278 representatives and 15 women.
Parties represented in the CA were the Congress Party which had a majority, Muslim League, Scheduled Caste Federation, the Indian Communist Party, and the Union Party.
The CA met for the first time in December 1946 and by November 1949 the draft constitution was approved. The constitution went into effect in January 1950 and the CA was transformed into a Provisional Parliament.
The Constitution which is still in force has been amended over 90 times making it one of the most frequently amended constitutions in the world.
It is also known to be one of the longest and most detailed in the world with 395 articles and 10 appendixes called schedules.
Extensively modelled on western legal and constitutional practice, its key features include:
- The establishment of a federal system with residual powers in a central government;
- A list of fundamental rights;
- A Westminster-style parliamentary system of government.
Key timelines in the constitutional process
- 1946 — Britain decides to grant independence to India and a cabinet mission is dispatched to India to discuss modalities for the transfer of power.
- 14th August 1947 — Proposal for the creation of committees is tabled.
- 29th August 1947 — The drafting committee is established.
- 6th December 1947 — Constituent Assembly formally convenes for the first time, following elections, to start the process of writing a constitution.
- 4th November 1947 — Draft is finalized and submitted.
- 1948–1949 — Constituent Assembly meets in sessions open to the public.
- 26th November 1949 — Constituent Assembly adopts final draft making it official.
- 26th January 1950 — Entry into force of the new constitution.
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