Countdown to Constitution

It used to be said about the British that they acquired their colonial empire in a state of absentmindedness. This statement is obviously not true, but it is instructive.

It reveals the important fact that the British did not capture India through a single conquest. India’s take-over was gradual, and happened in stages. It was spread over a hundred years from mid-18th to mid-19th centuries. The time span was so long that it may not have occurred to the British that they had captured a civilisation much older and many times larger than Great Britain.

There is, however, some evidence that this realisation began to dawn upon them around the middle of the 19th century. The British policy makers began to seriously debate around the bases on which India was to be kept under control.

The Rebellion of 1857 proved beyond doubt that it was not easy to control such a large country through force and coercion. Sustaining that rule and going on ruling India was going to be even more difficult. ‘How to rule India’ was easily one of the most important and tricky questions facing British imperialists.

Rites of passage

All the rulers in history have maintained their rule with a combination of ‘force’ and ‘consent’, with a heavy stress on the former. Both were considered necessary ingredients in the maintenance of any stable empire. Force was needed to keep the society under check and also to protect the empire from attacks from outside. It was also necessary to acquire the consent of a segment of the population. Such consent would act as a buffer against protest or rebellion by the people.

With the arrival of Modernity, society became more complex, and so did the state system. The total volume of power increased and became much more diffused and scattered, instead of being concentrated in a single institution. Under modern conditions, it also became difficult to draw a line between state and society.

It was not very clear where the state ended and the society began. Under such conditions, the importance of force inevitably decreased and that of consent increased, in the armoury of the state systems. Even though both force and consent remained crucial elements in state policy, their relationship changed.

Modern state systems had to rely on consent more than force for their survival and continuation. State systems had to become self-consciously representative of the people and rule, at least in theory, in the interests of the people. In other words, democracy became the guiding principle for all modern state systems. This is almost a law of modern politics.

However, there also emerged a powerful exception to this equally powerful rule. The same Modernity which created conditions for democracy, also created colonialism and imperialism, i.e., imposition of alien European rule over large parts of the world. British rule in India was part of this larger system of imperialism and colonialism. The combination of democracy and imperialism created a historically unprecedented dilemma for the imperialist rulers.

The dilemma is as follows: the imperatives of the modern industrial economy necessitated the use of the resources of other countries. These resources could be effectively appropriated only by direct political domination over these countries. Modernity required that modern state should be representative of the people.

Colonial state was modern, but also alien. It was not easy for an alien state to be effectively representative of the people. Hence it was not possible for a colonial state to be a democratic one. It is a feature of Modernity to create contradictory, mutually irreconcilable conditions. What to do?

It soon became clear to the British that a handful of civil and military officers, numbering not more than one lakh at any point, could not possibly rule over a population of over 300 million Indians. It may have been relatively easy to establish British rule in India, but much more difficult to sustain it. Total force was ruled out and so was total consent. It had to be a combination of the two.

The entire history of British policy in India is a history of nebulous oscillation between these two poles of force and consent. It had become amply clear to the British that the Indian people could not be effectively ruled through force and coercion alone. Macaulay, law minister in the East India Company, argued in the 1830s that a successful military conquest was only half the battle won, and the “permanent and the most profitable form of conquest was the one over the minds” of the Indian people.

The battle for the mind had to be won by co-opting at least some Indians into the colonial ideology and system. Hence the focus on English language as the central plank of the educational policy of the British.

Trevelyan, another British official, made the point in his notes on Indian education: “The only means at our disposal... is to set the natives on the process of European improvement... They will then cease to desire and aim at independence on the old Indian footing.

A sudden change will then be impossible; and a long continuation of our present connection with India will even be assured for us... The political education of a nation must be a work of time and when it is in progress, we shall be as safe as it will be possible for us to be.” It was clear, to some Englishmen at least, that a gradual constitutional advance and a ‘Rule of Law’ were very crucial for a prolonged and a stable British Empire in India.



If a ‘rule of law’ (as against the rule of an individual) had to be created, it would require law-making, legislating institutions. Should Indians be included in it? If yes, should they be nominated or elected? If elected, how large or representative should be the electorate that should elect them? These were important questions and engaged the British policy makers in a sustained debate. The nature of constitutional initiatives taken by the British was a product of these debates.

Through these debates emerged the consensus that India was to be subordinated to British parliament. This meant that the British policy in India would also be shaped by the dominant political ideas in the British parliament and the British society.

Two principal ideas, ‘the liberal-democratic idea’ and the ‘conservative-imperialist idea’, competed with each other to shape the contours of the British colonial state in India. Both these ideas were also connected to the self-image of the British. In the liberal-democratic self-image, the British saw themselves as the leaders of the world who had the responsibility for promoting democracy and self-government in the world.

In the conservative-imperialist self-image, they saw the British empire at the centre of the British national identity. India figured very prominently in the British Empire, and it was considered absolutely essential to hold on to it. Nothing should ever be done which might weaken British control over India. They believed, rightly so, that without India, Great Britain would be easily reduced to a ‘little’ Britain.

These two visions clashed with each other in the short run. But they were both united in their belief in the general necessity of holding India to the British Empire. All the constitutional initiatives taken by the British in India were a product of dynamic interactions between these two ideas. They were also geared towards ensuring a prolonged British presence on the Indian soil.

Given this situation, it was inevitable that the British would carry out constitutional developments in India as a kind of ‘deferred instalment payment’. There were six such instalments — in 1858, 1861, 1892, 1909, 1919, and in 1935. Each was an advance over the previous one; each was inadequate and unsatisfactory. In 1858, the British set up the legislative councils at the centre and in provinces.

In 1861, it was decided to nominate some Indian in the councils. In 1909, the British introduced the principle of election to the legislative bodies. However, the voting rights, based on wealth, property, status and education, were restricted to very few people. In 1909, only 4,000 Indians had voting rights.

By 1919, this increased to around 3 per cent of the population, and by 1935, around 14 per cent of the population got voting rights. Moreover, the Act of 1935 also created provincial autonomy. This meant that each province was opened up for an elected representative government. Any political party could contest the elections and whichever party got a majority could form a government in that province.

Under this arrangement, first general elections were held in 1937. After some hesitation and internal debate, Congress contested these elections and formed governments in 8 out of 11 provinces in British India. These briefly were the constitutional initiatives undertaken by the British. How did the Indians approach the question of constitutional development?

Contrary to popular beliefs, the initiative for the democratisation of Indian society came from the Indians, and not from the British. Many British officials felt in the 19th century that the Indian society was fit only for ‘enlightened despotism’, not for democracy. By contrast, the early Indian nationalist leaders constantly put forward demands both for a democratisation of the India society and the Indianisation of the administrative structure. Quite often the British made concessions in the light of the demands put forward by the Indians.

It was in the 1920s that a qualitative shift occurred in the Indian thinking on constitutional issues. Instead of demanding a better constitution from the British, Indian leaders decided to take the initiative in making a constitution for India and present it to the British.

All the major political parties in the country convened an all-parties political conference under the leadership of Congress. The conference requested Motilal Nehru and Tej Bahadur Sapru, arguably the best constitutional experts of the times, to create the framework for a constitution of India. This was to be the first Indian Constitution made by Indians. It was called ‘Nehru Report’, and was submitted to the British in 1928.

Nehru Report was a remarkable document in many ways. It was a precursor to the Indian Constitution made in 1950 under the leadership of Ambedkar. Many features of the Indian Constitution were inspired by the Nehru Report. It recommended fundamental rights for the people, a parliamentary form of government, a bi-cameral legislature, universal adult franchise, administrative units to be formed on linguistic basis and an independent judiciary with a Supreme Court at the apex. 

Nehru Report was qualitatively different from the British efforts in some crucial respects. The British made no reference to any fundamental rights for the people and created a very restricted franchise. Nehru Report argued for universal adult franchise.

The British had created a system of separate electorates, according to which the entire electoral process was divided on the basis of religion, particularly between Hindus and Muslims. Voters, candidates and constituencies were all divided on the basis of religion. There were separate voting lists of Hindus and Muslims, separate constituencies of Hindus and Muslims, and of course, separate candidates. If a Hindu wanted to vote for a Muslim, or vice versa, it was simply not possible under the British system.

Renewed effort

The system of separate electorates was easily the most pernicious feature of the democratic principle introduced by the British. This was indeed a curious feature of British initiatives. Democratisation was connected to communalisation of Indian society and politics. The more the democratisation, the more the communalisation. As the voting rights were extended to more and more people, it enlarged the possibility of communalism.

It is not a co-incidence that the forces active for Indian’s partition got maximum impetus during the period of the two general elections held under separate electorates, in 1937 and 1946. The makers of the Nehru Report were aware of the divisive potentials of separate electorates and therefore stipulated joint electorates. The British, however, rejected the Report and went on to release the next constitutional instalment in the form of the Government of India Act of 1935.

The constitutional initiatives by Indians reached new heights in the 1930s under the leadership of Jawaharlal Nehru. Nehru decided to marry the constitutional principle with the democratic principle that had previously proceeded along parallel lines.

He argued that a constitution for India should be made, not by a few experts, but by a large Constituent Assembly elected by the Indian people. Throughout the 1930s and 40s, this remained the central demand of the Indian national movement. It was under this imperative that the Constituent Assembly was created towards the end of 1946. It was this Assembly which gave the country its own Constitution on January 26, 1950.

How do the two documents — The British Act of 1935 and the Constitution of India — compare with each other? Purely at a superficial level, the two might resemble each other in some details. At a deeper level, however, the Indian Constitution marks a sharp break from the British constitutional practices. Fundamental rights, completely missing from all British constitutional documents, are an integral part of the Indian Constitution.
The Indian Constitution advocates a form of democracy based on universal adult franchise. The British Acts went only as far as giving voting rights to 14 per cent of the population, chosen on the basis of wealth, status and property. The British had divided voters on the basis of religion. The Indian Constitution did away with the divisive and pernicious system of separate electorates.

But the most important difference lies in the fundamentally different guiding principles behind the two documents. All the British constitutional initiatives were motivated by the imperative of preserving and perpetuating the British colonial rule in India. By contrast, the Indian Constitution was mandated to prepare the blueprint for the transformation of Indian society along modern and egalitarian lines.
The preamble of the Indian Constitution clearly establishes the collective aspiration of the Indian people of developing India into a sovereign socialist secular democratic republic. It is, above all, in its transformative potentials that the Indian Constitution needs to be distinguished from all the British constitutional documents prepared for India.

(The writer teaches history at the Ambedkar University Delhi)