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

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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

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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.

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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.

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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?

2
Rajeev 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

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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
4
An 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.

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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.
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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. And it was more than evident that under the British colonial
rule, Indians were being denied the values of constitutionalism on which
the British government claimed to govern.

As the idea of constitutionalism in India began to take shape in the wake

of anti-colonial struggle since the late 19th century, it majorly took form of
the politics of constitutional means. It has to be constantly kept in mind
that the reforms and other administrative measures that British
introduced in India were always meant to consolidate their rule over
India. The Revolt of 1857 had already proved that continuation of British
rule in India would require some concessions to the Indians in form of
reform measures being demanded. Nevertheless, the manner in which the
politics of constitutional reform unfolded, it did gradually introduce in
India the modern constitutional state which was to become the
constitutional democratic state post-independence.

7
Sanjay Palshikar, 2008,Democracy and Constitutionalism, in Rajeev Bhargava ed,Ethics and Politics
of the Indian Constitution, New Delhi: Oxford University Press

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The early nationalists and Indian Councils Act of 1861 and 1892:

Any analysis of how constitutional politics was introduced in India would

have to go back to the Queen’s Proclamation of 1858 when the British
Queen took over the complete administration of India from the East India
Company. The Proclamation was in form of a promise by the Queen to her
subjects in India that they would be granted a status of equality with
other subjects within the British Empire. Slowly the idea of rights,
equality, were being introduced in theory, however, they were denied in
practice. This proclamation resulted in the Indian Councils Act of 1861
which extended the councils of Governor General and the Governors to
include some Indians through nomination. Though it only meant that
some Maharajas and landlords would be selected, it was still considered
an attempt at bringing in minimum representation.

The earliest of constitutional reforms coincided with the first phase of

national movement, the phase of liberal moderates. Their method was
that of petitions and moderate appeals to the British for gradual
legislative reforms. People like Dadabhai Naoroji, Surendranath Banerjee,
etc. after the formation of Indian National Congress started putting
pressures on the government for expansion of Legislative Councils to
make it more representative of the Indians. Their demand resulted in the
amendment to the 1861 Act in form of the Indian Council Act 1892. This
Act increased the number of Indians in the Legislative Councils as well as
the Provincial councils. It also revised the system of nomination; now
some of the nominated Indian members were elected by an electorate,
though the nature of the electorate remained extremely restricted.

Both these Acts left the Indian nationalists highly dissatisfied and the
movement for better legislative reforms became stronger. This also
concurred with the demand for some form of control of Indians over
money collected from taxation. Along the lines of American War of

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Independence they also upraised the slogan of ‘No Taxation without
Representation’8.

Expansion of the legislature was not the only demand made during this
time. The moderates also demanded reform in the administrative
structure. It is important to reiterate at this point that constitutionalism
being the idea of a government that is limited in power did not just mean
that more people are represented at the level of legislation. A
representative executive was as much a realization of the ideals of
constitutionalism as was a more representative legislature. The demand
came in form of the critique of a completely ‘White dominated’
administrative services. Hence, the moderates, also known as liberal
constitutionalists, asked for Indianization of administrative services.

There was also a strong demand for separation of powers, their rationale
was that the arbitrary power of the state increases because of the
conflation of the judicial and executive powers. This arguments lies at the
heart of the values that constitutionalism embodies. To ensure that
tyrannical power is restricted, power must be divided.

The moderate style of politics was instrumental in introducing ways of

politics in congruence with the ideals of constitutionalism. They brought in
the idea of constitutional agitation, the notion of public opinion, meetings,
resolutions and the defence of freedom of speech and expression.

However, the demands remained confined within these ambits and there
was at this stage no articulated demand for popular representation. The
moderate style of politics was serving to be too plodding to serve the
need of the hour and the support base among masses remained
limited.This phase witnessed the rising of many constitutional demands
but very few among them were actually met by the British. Nevertheless,

8
See Bipan Chandra, Amales Tripathi and Barun De, 2005 (re print), Freedom Struggle, NBT: New
Delhi, p.64.
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the demands that had been enunciated were to shape up the politics at
the turn of the century.

More promises and fewer deliveries: Government of India Acts, 1909 and
1919:

The beginning of the 20th century had the political configurations change.
While the Moderate phase of nationalism was slowly being belittled and
the extremists were on rise, in England, the Liberals were in power and
Lord Morley, an eminent liberal thinker was the Secretary of the State.
Such were the political equations that the liberal nationalists in India were
expecting some concession from the British.9 In the wake of all this, The
Indian Councils Act 1909, popularly called the Morley-Minto Reform was
announced.

The nationalist historiography’s reading of the Morley-Minto Reforms is

that it was part of the British policy of ‘Divide and Rule’ because for the
first time it introduced the idea of separate electorates for the Muslims.
However, this is only one of the theories, though the most popular one.
Other readings also say that the Liberal leadership in England was
instrumental in getting this Act passed and also that the extremist style of
politics had already become popular by then and some reforms bending
towards some kind of direct representation of Indiansin legislation process
was now the need of the hour to prevent them from revolting.

Whatever may be the accepted theory about introduction of 1909

Reforms, from the vantage point of the notion of constitutionalism, this
Act for the first time officially established the system of elections at the
levels of Legislative Council and provincial councils.Simultaneously, the
system of separate electorates was established at these levels. However,
9
For a discussion on the impact of political leadership of England on constitutional reforms in India,
see Sumit Sarkar, 1983, Modern India (1885-1947), New Delhi: Macmillan, pp. 137-140.
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the system of separate electorate was not introduced for the first time in
India. In 1883, under the Ripon Reforms, separate electorates were
introduced at the level of local self-governance. But this time it was at
national level allowing for separate representation for Muslim community.
It meant that only Muslims can vote for candidates on seats reserved for
Muslim candidates.

As part of the provision of the Act, an Indian member was to be appointed

at the Governor General’s Executive Council and at all provincial executive
councils. Two Indians were to be nominated to the Council of the
Secretary of State for Indian Affairs. The Secretary of the State could if
willing, increase the number of Executive Councils of Madras and Bombay
from 2 to 4.

The number of seats at the Legislative Council was increased to 60 but

out of that only 27 members were to be elected by a restricted electorate.
There were mainly three types of electorates for the Central Legislative
Council: general, class and special. The general electorate consisted of
non-official members of the provincial legislative councils. The class
electorate consisted of Muslims and landlords. The special electorate
consisted of Universities and Chamber of Commerce. The seats at the
provincial legislative councils were also increased.

The Act of 1909 allowed more powers to Indian members over discussion
on budget. They could put up questions, ask supplementary questions
during legislative proceedings and sponsor resolutions to members of
Legislative Council and suggest amendments. These were some of those
few features of the Act that can be considered a step ahead in the
constitutional direction. It did mean some sort of a representative and
inclusive government however, not much was achieved through the highly
restrictive provisions of this Act.

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Features that actually meant a negation of values of constitutionalism
were present in majority in this Act. Women got no votes and though
discussion and voting was allowed on separate sub parts of the budget,
same was not allowed on the whole of the budget. Only those members
could ask a supplementary question who had already asked a question.
Areas such as Army, Native States, etc. were not allowed to be debated
by Indian members and they could not pass a resolution on these. The
most arbitrary feature of this Act was that it empowered the Governor
General to exclude any member for reasons he best knew.

The Reform proved to be a failure. It was beingvisualized in form of a

liberal promise from British government but it turned out to be a
complete farce in the name of reforms. It created communal electorates
and gave weightage to corporate and sectional interests dependent upon
wealth and power. Motilal Nehru denounced the reforms saying ‘Morley’s
long promised reforms have been published…they are…just the opposite
of reforms’.10The extremists critiqued the effort of any constitutional
reform without having a wider franchise base and territorial
representation.

Nonetheless in limited ways, these constitutional reforms were slowly

entrenching a new way of doing politics. It signified a relationship
between the government and the people where people affirmed that they
have a right to demand from the government and the government will
have to sooner or later pay heed. This was how progressively
constitutionalism was finding roots in India.

The failure of the 1909 Act had to be soon revised as it was unsuccessful
in both its task: to appease the moderates and to create Hindu-Muslim
political diversions. Hence the revision came in form of the Government of

10
Ravinder Kumar and D N Panigrahi ed, 1982, Introduction, in Selected Works of Motilal Nehru, Vol.
I, 1899-1918, New Delhi: Vikas Publications.

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India Act 1919. The world scenario was undergoing sea change during
this period. Britain was involved in the First Great War and its brunt was
being borne by the Indian exchequers. On the other hand, Gandhi had
emerged as a leader of the massesand Indian national movement was
entering a completely new domain of mass movement. In the wake of all
this, the 1919 reforms came as another effort by the British to placate the
Moderates and distance the Extremists from the scene.

On the face of it, the Montagu-Chelmsford Reform, popularly termed the

Montford Reform was a constitutional breakthrough. Till now, the
justification of all the previous reforms had been instituting some form of
a representative government in India by allowing some Indian members
to be a part of various councils. However, there had been no concept of a
responsible government. It meant that the elected legislators had no
control over the executive. The Montford reforms for the first time, tried
to address the issue of responsible government, another crucial feature of
constitutionalism. This was ensured through Dyarchy. Under Dyarchy,
provincial subjects were divided into two lists: reserved and transferred.
The reserved list had important subjects like Finance, Revenue, Jails, etc.
which were under only the Governor General and his Executive Council.
But the transferred list had subjects like education, health, sanitation,
industries, etc. These subjects were transferred to certain ministers who
were made responsible to provincial legislative councils. It meant that
certain ministers were made responsible to the provincial legislatures
which had Indian members on matters appearing in the transferred
list.11This may have been the minimum guarantee to ensure responsible
government; nevertheless, it was a first.

The reform for the first time provided for a system of general elections
and the elected government at provincial level could now administer the

11
Sumit Sarkar, 1983, Modern India (1885-1947), New Delhi: Macmillan, p. 166.
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transferred subjects. Theoretically, this Act tried to address another vital
constitutional doctrine, the idea of devolution of power.It meant that
power was to be divided between Centre and provinces. Those subjects
that were of provincial importance were now transferred to provinces. The
provinces could now run the administration through revenues collected by
provinces themselves.However this should not be confused with any kind
of a federal arrangement. The powers were not transferred to provinces
to solely control the transferred list. The Central Legislative Council
retained the power to legislate for the whole of India. Also the
departments transferred to the provinces were of far less political
weightage. A new feature for Indian legislative politics was introduction of
bicameral legislature at the Central Legislative Council. Though it did not
mean much at that time, in future it was to define the legislative structure
of India.

In theory the 1919 Reforms critiqued the communal electorate model of

its predecessor but in practice, it largely retained the system. In fact on
popular demand, to appease a section of the population it extended the
reserved electorate for non-Brahmins in Madras.

The Montford reforms were a reluctant move to introduced limited

responsible government in India. However, in practice it guaranteed next
to nothing. Most parties rejected it and demands were made for better
reform proposal. In reaction however, the British legal regime became
more repressive withCriminal Law Amendment Act providing for indefinite
detention on mere grounds of suspension, etc. It was quite evident that
the on the one hand, the British governance structure was showcasing
what it meant to be a constitutional government in theory through
gradual introduction of reform measures and the political values they
claimed to represent. But on the other hand, more blatantly, the farce
provisions of these measures accompanied with more repressive laws and
restriction of civil liberties highlighted how a constitutional government
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makes a mockery of values of constitutionalism itself. Nevertheless, it is
pointless to hold that the British rule in India was a constitutional rule. It
was an unconcealed oppressive colonial rule which tried to unsuccessfully
garb itself under liberal constitutional justifications. By then these garbs
had been uncovered. Nonetheless, the learnings for the Indian freedom
movement were greater. While it was being introduced,though in a limited
way, what was constitutional government in theory, it was also being
exposed what must not be a constitutional government.

Post 1919 developments and India’s first attempt at constitution writing:

The task of tracing a history of the development of constitutionalism in

Indiadoes not mean a study of only the legal constitutional reforms. The
idea is to see the demands of the people for constitutional measures and
the British government’s reform proposals and Acts, in reaction to each
other. The true spirit of constitutionalism, the idea of a limited
government was represented in the very fact that people were becoming
aware of their rights, the oppression on them and were gradually coming
to demand the right to self-government. From this vantage point, the
protest and boycott by the Indians of the farce reform provisions and
other repressive colonial laws was as much a part of the realization of the
doctrine of constitutionalism. In this regard, the opposition to Rowlatt Act,
introduced in 1919, comes foremost.

The Rowlatt Committee investigated and reported on the nature and

extent of the criminal conspiracies connected with the revolutionary
movement in India, and to devise legislations necessary to ‘deal’ with
them. The result was the Rowlatt Act. It authorized the government with
arbitrary powers of detention upto two years without trial on the mere
ground of suspension. It also provided for more stringent methods of
restriction over freedom ofpress, arrests without warrant and juryless in-
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camera trials for certain political offences. The accused was denied the
right to know the accusers and the evidence used in the trial. 12 The
infamous Act was an absolute ridicule of all liberal and constitutional
rights that English government claimed to embody and it was met with
extreme opposition by Indians. One of the opposition demonstrations also
witnessed the Jalianwala Bagh massacre when fire was opened at the
gathering of people in Punjab protesting the repressive legislations.

Demonstrations against the Simon Commission

These protests used constitutional means of demonstrations, strike, etc.

to demand for a repeal of constitutional legislations that were nothing but
a negation of the values of constitutionalism. This is why such protests
become crucial for the study of constitutionalism as this is how Indians
were defining in their own ancillary way, the notion of constitutional rights
and measures to ensure them. Another such effort was the opposition to
the Sedition Law which was widely used to suppress any form of critical
opinion against the British government. C.R. Das in 1922 in his
undelivered presidential address at Congress party session at Gaya
opined that Prevention of Seditious meeting Act itself leads to breach of

12
Ranbir Vohra, 2001,The Making of India: A Historical Survey (2nd edition), Armonk, New York:
M.E, p. 126.

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law and order. One of the more diligent efforts at seeking amendment to
Indian Penal Code in relation to section 124A (defining the offence of
sedition) was made by Satyamurti in 1936 after his election to the Central
Legislative Assembly. Satyamurti was persuading British bureaucracy
governing India to repeal all repressive laws.13

If the protest against legal measures were one of the ways of ensuring
that constitutional principles are met with, the national movement also
experimented with another form of politics to meet the same end. This
was the politics of using constitutional structures to press for the
demands of the Indians. This was the style of politics represented by
Motilal Nehru, C. R. Das and the likes.

They desired that the course of struggle should be taken at the level of
the legislative councils. The idea was to strategically use the reformed
legislatures under Govt. of India Act 1919 and use them to weaken the
British rule. In 1923 along with C.R. Das, Motilal Nehru formed the
Congress Khilafat Swaraj Party. The party owed allegiance to Gandhi but
disagreed that satyagrah was the only means to achieve independence.
They believed that it is by entering into the councils and obstructing the
business of the legislatures that the British rule can be weakened. He was
also instrumental in in bringing about some kind of an alliance between
the Muslim and the Moderate members in the legislature. This resulted in
the coalition of the Nationalist Party which allowed Congress to press for
its demand for a dominion status.

The nationalist frame during that time was undergoing a transformation.

Young nationalist were coming to the fore and the ideology of democratic
socialism was becoming dominant. Given the background, the British
government decided to send an ‘all white’ commission to India to review

13
See K. G. Kannabiran, 2004. Personal Liberty after Independence, in Wages of Impunity: Power,
Justice and Human Rights, New Delhi: Orient Longman Pvt Ltd. pp. 30-62.

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the reforms of the 1919. This was called the Simon Commission
exclusively constituted of all Englishmen.

The Simon Commission was opposed by all sections and ideologies of the
Indian National Movement. To this boycott, the Secretary of the State
threw an open challenge to the nationalists in India to draft a constitution
that would be acceptable to all classes and communities. The assumption
was that the leadership in India was inherently incapable of leading up
the task to completion. This challenge was accepted by the nationalists to
culminate into what was called ‘the draft constitution’.

The decision was taken at the Madras Session of the INC in 1927 to draft
the constitution following which an All Parties Conference was called. A
sub-committee was constituted under the leadership of Motilal to draft the
constitution known as the Nehru Report.14 Nehru Report is considered to
be a landmark in constitutional philosophy in India for not just
comprehensively laying down a draft constitution, pushing forward for
Dominion status as the first step towards political independence but also
providing for a complete list of central and provincial subjects and
fundamental rights. It was also radically progressive and ahead of its time
in trying to argue for minority rights. It rejected separate electorates but
granted the right to language, script, culture and religious practices to all
religious communities.15

The Nehru Report though met with criticisms especially from leaders like
Jawaharlal Nehru and Subhash Bose for laying the demand for dominion
status as opposed to complete independence. Nonetheless, within the
limited constitutional scheme that the British had allowed to Indians at

14
Ravinder Kumar and D N Panigrahi ed, 1982, Introduction, in Selected Works of Motilal Nehru, Vol.
I, 1899-1918, New Delhi: Vikas Publications.
15
Neera Chandhoke, 2002, Individual and Gropu Rights, in Zoya Hasan, E Sridharan, R Sudarshan
eds, India’s Living Constitution. Delhi: Permanent Black.

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that juncture, dominion status seemed to be the only workable goal for
most nationalists.16Most of all, while till now it had been undisputed that
Indian constitutional development would only be authored by the British;
the draft constitution contended it and served to be India’s first
experiment at constitution writing.In a landmark statement, it affirmed
that ‘all powers of the government are derived from the people’, in true
constitutional soul.

The Nehru Report, along with the report prepared by the Simon
Commission was tabled in the three Indian Round Table Conferences
1930-1932. All this eventually culminated into another set of
constitutional reforms and perhaps the most important one, the
Government of India Act 1935. Needless to say the Government of India
Act 1935 owed much to the Simon Commission report and marginally, if
nothing to the Nehru Report.

By then, Congress had decided that if the Nehru Report is not accepted by
the end of 1929, it would call for a new campaign of civil disobedience
stating purna swaraj as its goal. Same happened and Congress at the
Lahore session in 1929 gave a call for complete independence. Under
such scenarios, the 1935 Act was to unveil another set of political tussles.

Government of India Act 1935 and the building blocks to a future

constitution:

The process initiated with the setting up of Simon Commission finally

halted in 1935 when the Government of India Act was finally passed by
both houses of British Parliament. The Act fell completely short of its
expectations and could not make much revision to the 1919 Act.
Nevertheless, in theory the Act introduced a very important feature of
16
Shekhar Bandopadhyay, 2004, From Plassey to Partition: A History of Modern India, New Delhi:
Orient Longman, p. 316.
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constitutionalism that was the federal features. It introduced a federal
government at the centre and the new Federal Union was to now
comprise of Provinces of British India as well as princely states. However
this federal central government could have only become operational once
50% of the princely states agree to join the Union. Many of the states
refused to join so the federation never came into being.

Although in theory it introduced responsible government at provincial

level by abolishing Dyarchy but the practice of it was quite different. The
Governors in each province retained power over provinces through a
number of provisions like they had'discretionary powers' to summon the
legislatures, and administer certain special regions (mostly tribal). They
had the power to assent the bills passed in the provincial legislature. On
these matters Ministers were not entitled to give advice.The governors
enjoyed special powers through a specific provision under which they
could take over the administration of a province for indefinite period of
time.17The electorate was increased to 30 million but the criteria of high
property allowed only 10% of the Indian population to count as the
electorate. Separate electorate continued to feature in the Act and 1/3 rd

17
Sumit Sarkar, 1983, Modern India (1885-1947), New Delhi: Macmillan, p. 338

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Muslim representation in the Central Legislative Council was guaranteed.
Seats were also reserved for the Scheduled Castes in the Central and
Provincial legislatures.

The Act did not provide for a Dominion status to India as had been
demanded all through. What it did was to transfer control from the
Secretary of the State to the Governor General by transferring a lot of the
functions of the former to the latter. It was called nothing but a ‘paper
federation’.18

However, for the present purpose, it is of significance to note that on

paper, the provisions and specially the federal provisions that the Act
provided for went on to become a reference point while constituting the
Union of States in India post-independence. Besides the federal
provisions, there are striking similarities between our Constitution and the
Govt. of India Act 1935. The vast emergency powers given to the
President in our Constitution resonates with the special powers of the
Governor General in the 1935 Act. The post of the Governor was said to
be an elected post in the first draft of the Constitution but in the final
draft it was modelled on the 1935 Act and reverted back to a nominated
post by the centre.19Similar was the case of the powers given to the
Governor to take over the administration of a province, it translated into
the powers of the Governor in a state post-independence.

There are two ways of reading these provisions. One way is to say that
these provisions were part of constitutional reform agenda and were
means of ensuring constitutional governance. However, a second reading
would say that though these provisions were part of constitutional
governance structure they were not necessarily in consonance with the

18
Shekhar Bandopadhyay, 2004, From Plassey to Partition: A History of Modern India, New Delhi:
Orient Longman, p. 323
19
Dietmar Rothermund, 1962, The Journal of Asian Studies Vol. 21, No. 4, pp. 505-522.
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values of constitutionalism. Overriding powers of the Executive over the
Legislative structure is not in sync with the separation of power doctrine
that constitutionalism embodies. If this argument can be made about the
1935 Act, to an extent this also holds true of the Constitution of the
independent India. Though these debates are outside the purview of this
paper, it still has to be acknowledged that the Constitution of the
independent India struggled a lot to transform the undemocratic part of
its colonial baggage and it did not succeed always. Nevertheless, any
attempt at analysing the constitutional history of India would have to take
into account these criticisms as well.

Since the last of the hopes to be granted the Dominion status was
shattered, Indian National Movement rose to a new vigour to achieve
complete independence. The journey henceforth was no longer limited to
securing minimal constitutional reforms but it was about the possibility of
having a constitution of own.

The road leading to the transfer of power:

The Government of India Act 1935 was rejected by Congress and also by
Muslim League however, when the elections were held in 1937 in
accordance with the Government of India Act 1935, both parties
participated in elections to provincial legislatures. Congress formed
ministries in major provinces. With these developments, in 1938 Congress
found itself placed well enough to put forth a demand for a self-
constituted constituent assembly for Indians to draft a constitution for
themselves. However, the political intentions of the British government in
England were not exactly inempathy and they were only willing to meet
compensatory proposal of offering a Dominion status for the first time.
Against this background, the Cripps Mission came to India in 1942.

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Cripps Mission had a draft declaration initially that offered a Dominion
status with right of secession. In the daft there were also provisions for a
'constitution-making body' elected by provincial legislatures, and princely
states being invited to appoint representatives. The individual provinces
were given the right to not join it. It meant the states and provinces had
been given the right to remain independent of the Indian Union.However,
when the Cripps Mission finally came to India with this draft, it was felt by
some Englishmen like Lord Wavell back home that Cripps was offering too
much real power to Congress.

When the talks actually started with Congress, Cripps was made to
change the tone of the negotiation and withdrew a lot of provisions earlier
part of the draft declaration.20Congress in any case had already stated its
goal as complete independence and with the changing tendency of talks
within the Cripps proposal it had no choice but to reject it. Cripps Mission
failed and the proposal of India as a dominion to England was rejected.
Indian National Movement gave its final call of ‘Quit India’. The idea of
constitutionalism at this juncture was going through a transformation.
While so far the idea of limited government was attempted to be ensured
by the Indians through gradual constitutional reform measures leading up
to a responsible government, thingswere waiting to take a great leap
now. The freedom movement now was convinced that the values they had
struggled for could only be realized outside the frame of colonialism. The
right to self-determination hence was crucial, everything else would
follow.

While all these developments were taking place, Britain was waging the II
World War. With the increasing brunt of the war and the determined Quit
India movement, rise of Indian National Army, and the consistent demand
of Muslim League, by the middle of 1940s Britain realized that it could no

20
Sumit Sarkar, 1983, Modern India (1885-1947), New Delhi: Macmillan, pp. 386-389.

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longer rule by repression. In 1946 then a Cabinet Mission under Sir P.
Lawrence was sent to India to devise a constitutional scheme of transfer
of power that would be based on a consultation with all parties in India.

The Cabinet Mission had a plan for constituting the Constituent Assembly
for India that would comprise of elected members of provincial
legislatures and representatives of princely states. Other colonies of
Britain at the time of transfer of power had prepared a draft constitution
andpresented to the British Parliament for ratification. It was planned that
in case of India as well, the Governor General would summon the
Constituent Assembly and the draft would be tabled in the British
Parliament.21

The Cabinet Mission started working by grouping different provinces

together on communal basis marking out the Hindu dominated areas and
the Muslim dominated areas. The initial plan was of a united dominion of
India with Muslim-majority provinces and Hindu-majority provinces. But
later Congress objected to the grouping on the ground that some non-
Muslim dominated areas being grouped under the Muslim majority
province. The Muslim majority province was grouped in a manner that
exactly reflected the League’s demand of Pakistan. Congress demanded
changes in the grouping and League was not ready for any kind of
change.

The two largest parties active on the political scene of India could not
come to an agreement on the territorial divisions. Muslim League gave a
call for a ‘Direct Action’ to achieve its goal of Pakistan. Congress only
agreed to the proposal of electing a Constituent Assembly in the manner
devised earlier by Cripps and later by Cabinet Mission Plan. Nehru made
the declaration that Congress would participate in the 1946 elections to

21
S. K. Chaube, 2009, Antecedents, in The Making and Working of the Indian Constitution, New
Delhi: NBT
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constitute the Constituent Assembly. Out of the Constituent Assembly, an
Interim Government was formed in 1946 to assist the process of transfer
of power. Muslim League also joined the Interim Government initially but
the call for ‘Direct Action’ was kept on.

With political deadlocks between Congress and League and devastating

communal riots, partition seemed to be inevitable. After Lord Mountbatten
took over as the Governor General, partition was conceived as the final
event preceding the independence of India and Pakistan. Mountbatten
came with his 1947 plan, the Indian Independence Act, partitioning India
into the independent dominions of India and Pakistan under the office of
respective Governor Generals. The Governor Generals would be the
representatives of the Crown in the two dominions. However the
Constituent Assembly of India took a revolutionary step and did away
with the office of Governor General post-independence, a colonial remain
and opted for an elected head of the government.22

22
Ibid p. 13

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Times of India reporting on 15th August 1947.

From the vantage point of a historical exploration of the idea of

constitutionalism in India, an analysis of the above laid down events is
called for. The events leading up to the transfer of power to Indians needs
to be seen as not just a realization of the values of constitutionalism but it
also needs to be seen as a transformation of colonial
constitutionalism.Colonial constitutionalism means those constitutional
frames that were introduced to Indian as part of the colonial structure. In
theory they represented liberal constitutional values but in practice they
were part of the political project of colonialism. Here the authors of the
constitutional design were the rulers whereas the followers of those

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constitutional rules and laws were the subjects.23In that sense colonialism
in itself was a negation of the values of constitutionalism.

Hence the moves of the nationalists in constantly putting forth the

demand for self-government and after a point refusal to reject the
dominion status, has to be seen in this light. The effort towards struggling
to have a constitution making body constituted of Indians meant that the
Indians would themselves frame the laws that would govern them rather
than being imposed upon them from external sources. Equally imperative
for realization of constitutionalism was the idea of sovereignty. Self-
governance is incomplete till the achievement of sovereignty. Hence the
rejection of dominion status for complete independence was the final step
in this direction.

The theory of constitutionalism at work:

The Constituent Assembly was constituted in December 1946 that worked

for nearly three years on the draft of a constitution. Though in a limited
way, it tried to bring on board all parties and interests. However Congress
remained in majority being joined by some members from smaller
parties, such as the Scheduled Caste Federation, the Communist Party of
India, and the Unionist Party. There are mixed responses about the
nature of Constituent Assembly of India. One of the views believes that it
represented a radical step for taking on to a mighty colonial government
and being able to produce a constitution for a sovereign nation without
succumbing to the demands of British interference. However, another

23
Ranabir Samaddar introduces the debate over the theory of constitutionalism as always being
colonial as it always maintains the distinction between ‘authors of laws and subjects of law’. This
view is explicitly reflective of the idea of constitutionalism in praxis within the colonized world where
the authors of the law (the colonizers) and the subjects of the law (the colonized) always formed
separate categories. See, Ranabir Samaddar, 2007. The Materiality of Politics, The Technologies of
Rule (Vol. I). New York: Anthem Press, pp. 19-58.

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view claims that the Constituent Assembly did not represent the whole of
India, it was not a body elected on the basis of universal adult franchise
as had been promised. For the present purpose, both viewpoints need to
be analysed.

The White colonies of Britain who later got self-government had prepared
their draft constitutions and sent to the British Parliament for enactment.
The Indian Independence Act had also planned similarly. It had given the
power to the Governor General to give assent to the constitution once
drafted.24 However, the Constituent Assembly did not follow the intentions
of the British and the constitution was not sent to the Governor General.
It was only proclaimed by the President in 1950. After the issue of
partition had been decided upon, the Governor General was never made
to intervene in the constitution making process. Hence this was a clear
move representing a progressive constitution that was trying to transform
its colonial past.

24
S. K. Chaube, 2009, Antecedents, in The Making and Working of the Indian Constitution, New
Delhi: NBT, p. 13

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Jawaharlal Nehru moves the resolution for an independent sovereign republic in the
Constituent Assembly in New Delhi (See more related pictures at:
http://www.caravanmagazine.in/books/indias-constitutional-
anxiety?page=0,1#sthash.EjForimR.dpuf)

However, the biggest criticism levelled against the Assembly is about its
representation. Nehru had claimed earlier that the demand for
Constituent Assembly represented ‘a collective demand for full self-
determination’. In criticising the Government of India Act 1935 he had
said that it failed to represent the will of Indians. He believed that a
democratic state can only be created by Indians themselves through a
Constituent Assembly elected on the basis of an adult suffrage.25 But
when the Assembly was constituted it was not based on universal adult
franchise. However, there are defences given to this argument that given

25
Rajeev 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 pp.
15-18.

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the political exigencies setting up of a body through elections based on
universal adult franchise would have taken the amount of time India did
not have. Nevertheless, it can’t be overlooked that not being a directly
elected body was the biggest shortcoming of the Constituent assembly.

Those viewpoints who have criticised the unrepresented nature of the

Constituent Assembly have argued that those who believed that the
Constituent Assembly represented the whole of India actually assumed
the oneness of the nation, the Indian nation.26 While this was still a
contested fact whether India was one constituted nation as there were
groups and communities that challenged it and resisted integration to the
Indian Union.

In spite of the criticisms, the Constituent Assembly in the real sense of

the term represented the doctrine of constitutionalism at work. It was
about the right to self-government, the right to self-determination. It
represented the struggle against colonialism that may have showed us
what constitutionalism in theory meant but in practice completely negated
it. It was about deliberations and public opinions as means of realizing
constitutionalism. And most importantly it was about people’s right to
form a state and the government which in turn would guarantee those
rights. The clear attempt was to transform to a post-colonial
constitutional frame where colonialism would be transformed into
democracy and subjects into citizens.

Conclusion

26
Aditya Nigam, 2008, A Text Without Author, in Rajeev Bhargava, ed, Ethics and Politics of the
Indian Constitution, New Delhi: Oxford University Press

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This chapter has tried to argue that constitutionalism as an idea travelled
to India as a western construct through colonialism and through colonial
mechanisms gradual constitutional scheme was laid down. But the
scheme repudiated the values of constitutionalism. As the doctrine of
constitutionalism says that the entire rationale behind having rules and
regulation in form of a constitution is to ensure that government power is
restricted. But within the colonial frame the effort by the rulers was
constantly on the opposite direction, ie, to exercise unbridled power over
the colony.

However, the response of the Indian freedom movement in interaction

with the colonial government ultimately led to the realization of the values
of constitutionalism. The pressures and demands for reforms, rights of the
people, responsible and representative government to the final demand of
self-government with complete independence, is how slowly
constitutionalism as a doctrine got entrenched into Indian politics. It has
to be acknowledged that constitutionalism in India structurally is some
ways entwined with the colonial structure as many of the reform
measures introduced by the colonial state were retained as part of
governance structure post-independence.

But the gap between constitutionalism in theory and practice that existed
in the colonial period was only bridged once colonial character of
constitutionalism was transformed by post-colonial
constitutionalism.27Though it has to be duly acknowledged that the
working of Indian democracy at all occasions has not been in accordance
with the values of constitutionalism and there have been instances of

27
For further debates on nature of postcolonial constitutionalism see Upendra Baxi 2008. Preliminary
Notes on Transformative Constitutionalism. BISA Conference: Courting Justice 2, Delhi.
Upendra Baxi argues that the nature of post-colonial constitutionalism is transformatory and he puts
Indian Constitution in the same category of transformatory constitutionalism along with Brazil and
South Africa arguing that the task of constitutions in these countries was to transform the regressive
remains of colonialism.
32
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arbitrary use of state power by successive governments and occurrences
of rights violation. However, the post-colonial transformation ought not to
be discredited.

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G. Sartori, 1962, Constitutionalism: a Preliminary Discussion,American
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35
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