DC-1 SEM-2 Paper: Nationalism in India Lesson: Beginning of constitutionalism in India Lesson Developer: Anushka Singh Research scholar, Political Science, University of Delhi 1 Institute of Lifelog learning, University of Delhi Content: Introducing the chapter What is the idea of constitutionalism A brief history of the idea in the West and its introduction in the colony The early nationalists and Indian Councils Act of 1861 and 1892 More promises and fewer deliveries: Government of India Acts, 1909 and 1919 Post 1919 developments and India’s first attempt at constitution writing Government of India Act 1935 and the building blocks to a future constitution The road leading to the transfer of power The theory of constitutionalism at work Conclusion 2 Institute of Lifelog learning, University of Delhi Introduction: The idea of constitutionalism is part of the basic idea of liberalism based on the notion of individual’s right to liberty. Along with other liberal notions,constitutionalism also travelled to India through British colonialism. However, on the one hand, the ideology of liberalism guaranteed the liberal rightsbut one the other hand it denied the same basic right to the colony. The justification to why an advanced liberal nation like England must colonize the ‘not yet’ liberal nation like India was also found within the ideology of liberalism itself. The rationale was that British colonialism in India was like a ‘civilization mission’ to train the colony how to tread the path of liberty.1 However, soon the English educated Indian intellectual class realised the gap between the claim that British Rule made and the oppressive and exploitative reality of colonialism.Consequently,there started the movement towards autonomy and self-governance by Indians. It is within the discourse of this movement that the idea of constitutionalism got 1 To read about this argument in detail, see Partha Chaterjee’s idea of the ‘colonial difference’ in his book The Nation and its Fragments. 3 Institute of Lifelog learning, University of Delhi shaped and started realizing itself in form of various constitutional reform measures under British rule. These measures were a consequence of demands made by the nationalists ultimately resulting in the Indian Independence Act and transfer of power. This chapter is an attempt to engage with the doctrine of constitutionalism as it originated in the West and particularly England and how it travelled to India and the changes it underwent. While tracing a history of constitutionalism, this chapter would engage with a series of constitutional reforms that the colonial government introduced and the response of the Indians to those reforms. The chapter begins with defining constitutionalism as an idea and in the second section goes on to discuss how it travelled from England to India. From the third section onwards, the analysis of constitutional measures undertaken by British government begins starting from Queen’s Proclamation to Indian Councils Act of 1861 and 1892. This is followed by a study of the 1909 and the 1919 Acts. All this is coincided with some observations on the nationalist movement in the corresponding period and their interactions with these reform measures. The next section discusses the rights based movement critical of repressive laws of the British government and the Nehru Report as the first experience of Indian s at constitution writing. The next two sections discuss the 1935 Act, its shortcomings and the gradual process leading up to the transfer of power. The lastsection is specifically on how the Constituent assembly was constituted and what it meant for the doctrine of constitutionalism. The purpose to study these constitutional reforms is to see how gradually the scheme of constitutional government and structure was introduced in India and the values it represented. Equally important is the task to see how the constitutional structure that colonial government represented negated the very constitutional values that it was founded upon. 4 Institute of Lifelog learning, University of Delhi Constitution, in ageneric sense would mean a set of rules and regulations that would prefigure how a society ought to be governed. In that sense, constitutions are binding, they bind the people but they also bind the governments and the states. The state and the government are also bound to act in accordance with the constitution. Hence, the general accepted understanding of having a constitution is that it restricts the exercise of power. They provide for those basic rules that would prevent the state from being tyrannical.2This is exactly what is meant by the doctrine of constitutionalism. This picture is of one of the processions demanding independence, symbolizes the idea of people behind any understanding of constitutionalism. What is the idea of constitutionalism? 2Rajeev Bhargava, 2008, Outline of a Political Theory of the Indian Constitution, in Rajeev Bhargava ed,Ethics and Politics of the Indian Constitution, New Delhi: Oxford University Press, p. 14 5 Institute of Lifelog learning, University of Delhi In the most general sense, constitutionalism refers to an overarching frame of authoritative values according to which a society should be governed, a frame that defines the ambit of legality in any society. It is ‘a set of rules of a higher order with reference to which law is identified’3. A constitution, in this sense consists of set of rules defining the limits of governmental power and authority as it maps the contours within which government and its organs need to function. The implication of this view entails prefiguration of how the society ought to be governed where the reference point stands to be the binding constitution. Hence in the most nonspecific sense, constitutionalism means governance as per the constitution. However, the basic idea of constitutionalism means the idea of a limited government. Governance as per the constitution is one of the ways in which the idea of a limited government can be ensured. Although this idea of constitutionalism was intrinsic to pre-modern times particularly in Ancient Greece4, but with the coming of modernity with the development of the apparatus of the modern nation-state, things began to change. The modern nation-state on the one hand claimed monopoly over coercion on the other hand; its development alongside the social system of capitalism was paved way through a struggle for liberal ideas protecting rights and liberties of people against the arbitrary use of power by state. Constitutionalism as a doctrine owes its development to the notion of individual rights as a distinguishing feature of modern world as oppose to pre-modern5. If constitutionalism as a frame in pre-modern times served as a source of structuring society through prescribed rules 3 Pratap Bhanu Mehta, 2002, The Inner Conflict of Constitutionalism: Judicial Review and the ‘Basic Structure’, in Zoya Hasan, E Sridharan, R Sudarshan eds,. India’s living Constitution. New Delhi: Permanent Black 4An example is Solon who wanted his constitution to be abided by in totality for ten years. 5 Carl. Friedrich, 1966, The Development of Modern Constitutional Government in Theory and Practice, in Constitutional Government and Democracy. Calcutta, Bombay, New Delhi: Oxford and IBH Publishing Co. 6 Institute of Lifelog learning, University of Delhi and regulations defined in the language of legality, then constitutionalism in modern times essentially came to embody the idea of check. In this notion of check, constitution was to act as fixed frame in accordance with which the state power had to be exercised. A brief history of the idea in the West and its introduction in the colony: The fixed frame of the constitution believed in the idea of the present generation writing the constitution for generations to follow; it was the idea of pre-commitment by the future to the document being legislated by the present. England, which had an unwritten constitution also fitted into this frame very well. British constitutionalism has relied from time to time on written documents like the Magna Carter, Habeas Corpus Act of 1679, Bill of rights, etc.6 which is to say Britain has a constitution which is written in parts. The idea of these documents serving as reference points for future actions brought in the idea of an inherited constitutional framework. Such developments took place in the colonized India as well to mark out the beginning of constitutionalism. However, the legal documents and particularly the constitution as the only source of governance, gives an incomplete idea of constitutionalism. Constitutionalism meant the ‘check’ on the exercise of arbitrary state power ensuring the idea of limited government. Within this framework then, the written legal documents are not the only ways of keeping the government in check and making it responsible to people but there are also the notions of rights of the people that act as checks on the government. It is this idea of constitutionalism that became prominent in the wake of national movement in India demanding a responsible, accountable government. 6 G. Sartori, 1962, Constitutionalism: a Preliminary Discussion,American Political Science Review, Vol. 56, pp. 853-864. 7 Institute of Lifelog learning, University of Delhi The debates on constitutionalism vividly discussed law as not the only check on government, in fact the right to free speech and expression would serve as a bigger check that citizens can exercise to ensure their rights. Constitutionalism understood as theory and practice of substantive and procedural curbs on government dates back to the western liberal philosophies of Locke, Hume, and Rousseau.7 Based on an understanding of such philosophies that the Indian elite class gathered from the British provided English education, constitutionalism came to be understood as a frame of ensuring democracy. It was about defining rights, placing limits on powers of the British state which must include people’s participation.It then stood for rights of the Indians, rule of law, equality, representative and accountable government, separation of power, etc.