The twin test of constitutionalism, namely, ‘rule of law’ and ‘limited government’ are both visible when the governance is at work, in accordance with Sastra, and there is no occasion for the governance of the nation to degenerate into an arbitrary or tyrannical rule.
This is the second of a two-part response to Dr. M.P. Raju’s piece from earlier this year. Click here to see the previous part.
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IN Chota Nagpur, the village community owned the entire land. There was no system by which land could be owned as private property by any individual. In the Munda areas, the village headman was called the Munda, and the head of a killi, which links several villages together, especially for mutual help during war, was known as Manki, who was always elected by the village headman. The local chiefs received no rent; only assistance in war and ‘salami’ at festivals. In Oraon areas, community ownership of land was known as ‘bhuinhari’ held by the original settlers, and that was rent free; the raja of local chiefs had separate land known as ‘Majhas’.
The company bahadur in action in a remote tribal region
The company was regularly indulging in depriving these tribals of land, the only means of their livelihood. These agricultural workers began to be reduced to slaves in their own lands; the tribals began to object. The immediate provocation was the introduction of outsiders into the region, popularly known as ‘dikus’ or ‘sud’, by the company, for making it easy for them to collect the revenue.
William Blunt, a member of the governor-general-in-council, in his minutes of April 4, 1832, has referred to the tribal population of the area as “ignorant, poor, and uncivilized as they are, they have ever been regarded as a peaceful and inoffensive race of people who possess few wants, and who are patient and unresisting in an extra-ordinary degree”. And again, referring to Mundas and Oraons, he wrote that they were people who have a “character of truth and honesty beyond that of many of the people of India”.
But why did they take up arms? It was a reaction against the protracted exactions practiced by the native officers under the umbrella of the company officers, who were readily available with their might to assist these greedy officers as and when called, even with military force. Blunt had candidly admitted that their system of civil administration and of justice couldn’t be applied to these people, as those were injurious to the tribals. He lamented that the company and its military force enabled the powerful and the wealthy outsiders to commit acts of injustice and oppression, instead of trying to establish peace, which was necessary to implement the limited role the Emperor had bestowed upon them.
During the period of 25 years that preceded the great war of 1857, there were three major liberating revolts by the tribals of this region. Details of one of them are given below.
One Captain Maltby brutally massacred many of the tribals, a few of them hanged in public, their lands were restored to the mahajans;whatever grain and cattle they could carry they did, and the rest were destroyed. About 4,000 heads of cattle were seized and handed over to the dikus against receipts. Destroying the grain was so widespread that the officers justified their action on the pretext that starving the tribals was the best way to bring them to submission. Some of the officers believed that “without the total extermination of the Kols, there will be no security for lives and property in the region”. It was reported that continued campaigns were quite unnecessary, but Captain L. Wilkinson, a Joint Commissioners for Chota-Nagpur, was interested in prolonging the attack for the sake of his special salary of Rs. 3,000/-.
A report by ‘Miles’ in the India Gazette on November 23, 1832 should summarize the whole affair:
“What a ridiculous episode it will make In the history of British India !
How the future historian will laugh
As he tells the tale of the worse than useless Cole hunt !
Oh for the genius of a Gibbon to describe
‘With solemn sneer’ the magnanimous exploit !
“Oh shade of Napolean !
If I knew of any dak that could convey a parcel
In safety to thy present habitation in Elysium,
Most assuredly would I send thee
An account of the late events in the perturbed territory,
Which might perchance amuse the idle hour
And make thee ‘wreath a smile’
At the operations of that mighty Indo-British power,
Which it was thy fondest ambition to overthrow.”
(The text was in prose; since it sounds so poetic, liberty is taken to change the format into that of a poem.)
Proclamation of war by the emperor
The proclamation of war by the last Mughal Emperor on August 25, 1857 must be seen as a culmination of a situation where Indians were left with no other options but to resort to war with whatever little resources that were available to them. This proclamation was issued by the ‘last Emperor’, and called an ‘ishtahar’.
The reason for issuance of this proclamation was that many of the distressed Hindu and Mussalman chiefs, who had long since left their homes for the preservation of their religion and had been trying their best to root out the English from India, could approach him since he was already spearheading an Indian crusade against them. The present proclamation was for the information of the public, and the Emperor wished to impress upon them that it was the duty of the whole public that this proclamation should be given due consideration and abided by. All those who were willing to participate in this common cause, and at the same time did not have enough means to provide for themselves, would receive a daily allowance from the Emperor, for participation in this common cause:
“…Be it known to all that the ancient works, both of the Hindus and Mohammedans, the writings of the miracle-workers, and the circulations of the astrologers, pundits and rammals, all agree in asserting that the English no longer will have any footing in India or elsewhere…”
The proclamation further exhorted the people that it was their duty to give up any support to the English, and promote common good under the Emperor’s leadership, till they achieve the final goal; if not, they will one day repent that this golden opportunity had slipped out of their hands.
The proclamation was divided into five sections: the first was addressed to the zamindars; the second, to the merchants; the third, to the public servants; the fourth, to the artisans; the fifth, to all the learned men, including the pundits and the fakirs, the guardians of the Hindu and Mohamedan religions respectively, and exhorted to treat all British as enemies of both the religions.
The proclamation ended with a warning to all those who would disregard this ishtahar and side with the British, that all their estates would be confiscated, property plundered, and they, along with their whole family, would be imprisoned, and ultimately put to death. In fact, the Emperor was defeated on June 20, 1858 and deported; his two sons, who were the heirs apparent, were murdered; all possessions of the Company Bahadur in India were annexed by the Crown, which reluctantly announced the colonization of India by a formal proclamation, to take effect from November 1, 1858.
It is evident from what is stated above, with reference to the misrule of the company bahadur, the introduction of Mayor’s Court, the exploitation of the tribals for advancing their economic interests, and the reaction of the last Emperor, who declared an all-out war on the East India Company, that the colonial psyche may not be defended nor justified even partially for incorporation as a feature that advances the constitutionalism of India in whatsoever manner.
The Indian masses were not in a state of freedom, which is an essential precondition for the development of constitutionalism in any country. The Indian mass did not have a common interest born in freedom, to protect and promote by creating and using the existing political mechanism. The company incorporated in the United Kingdom, that was indulged in depriving millions of Indians their livelihood and basic human rights, cannot assume any constitutional powers in India, nor can the acts of mismanagement of a company be seen as acts of constitutional relevance.
One of the apprehensions Dr. Raju expressed was that Indianisation is not going to advance constitutionalism in any manner; rather, it will be a retrogressive step. This seems to spring from the apprehended notion of what constitutionalism actually means, and how that was developing in India.
There is a marked difference between a Constitution and constitutionalism; a constitution consists of the fundamental laws, customs, conventions, rules and regulations, involved in the governance of a State, while constitutionalism is not just a constitution, but that which ensures rule of law with limitations on the government, so that the governance may not go haywire. It is equated with the ideas of ‘rule of law’, and that a government can and should be legally ‘limited in its powers’, to save the governance of a State from tyranny and autocracy.
A cursory survey of the literature on constitutionalism goes to show that at the root of all lies what is attributed to American statesman, diplomat and former President James Madison:
“But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
There have been some attempts to distinguish constitutionalism as a conception of political limits from the classical appeal to natural law and to the cosmic order of political limits, but they are always wrongly labelled as ancient and medieval constitutionalism. The West has admittedly failed to recognize the call of ‘natural law’ to seek political limits, and that of the cosmic order for a sustainable political stability, both of which were rightly considered as marks of ancient Indian constitutionalism.
Due to the West’s over-anxiety to fit in the political reality of the times to the best theory of constitutionalism as a justification or legitimization, most western writers on modern constitutionalism were unanimous in acknowledging the inner contradiction or logical incoherence with the theory. They tried to explain and impose limits on the supreme political authority without denying its existence and sought to accord a place of absolute sovereignty to popular sovereignty, which enabled them to tolerate popular sovereignty together with its contradictions. English political theorist Sir Robert Filmer best expressed this contradiction:
“There never was, nor ever can be any people governed without a power of making laws, and every power of making laws must be arbitrary: for to make a law according to law, is contradictio in adjecto.”
Constitutionalism in substance, therefore, is now more or less agreed to be a political process by which political power is gradually institutionalized, on the one hand to gain control over the governed, and on the other hand, the governed adopts ways and means to ensure that the process of institutionalization of power would not become arbitrary. It is in this conception of constitutionalism that many find that there exists a contradiction in the process.
Is it because this process necessarily presupposes certain external and prior principles out of which constitutionalism usually emerges? What is it that renders legitimacy to such pre-existing principles for the growth of constitutionalism? History at different periods and in different regions has witnessed emergence of such external factors for legitimacy, such as evolving factors from ‘natural law’, dependence on the ‘might of one particular charismatic leader’, dependence of any single ‘enlightened personality who faces bitter experience’ in the early years, principles arising out of the ‘perceived self-sustainability of the nature itself’, and the like. It is in this context that the process of Indianisation in the correct perspective cannot be altogether rejected.
The legal and constitutional history for many starts from Surat, where sometimes in 1672, the company bahadur obtained some trading rights from the local authorities, confirmed by the then Mughal Emperor; but those rights were limited to trade, hiring a house, and have self-government of their own people and not beyond.
Why did they take up arms? It was a reaction against the protracted exactions practiced by the native officers under the umbrella of the company officers, who were readily available with their might to assist these greedy officers as and when called, even with military force.
Ultimately the Emperor had to issue a Proclamation of War on August 25, 1857 against the company. By the end of the Great War of Independence (1857-58), the last Mughal Emperor was defeated and banished, and his two sons, who were the heirs apparent, were murdered. The Queen-in-Council made a second Proclamation on November 1, 1858 and converted all the possessions of the company bahadur, situated in India, to herself, treating India as a British colony.
During the freedom movement, the first traits came from Gandhji in the form of his ‘Hind Swaraj’, which incorporates basic ideals, such as the indigenous culture and civilization, on which the future constitution of India should be based; the ‘Congress-League Scheme’ of 1916 followed this. The Scheme was a sincere attempt to frame a satisfactory constitution acceptable to both the Hindus and the Muslims.
Next came the ‘Outline Scheme of Swaraj’, which was prepared by freedom fighter, political activist and lawyer Deshbandhu C.R. Das, and theosophist and public figure Dr. Bhagwan Das after the Gaya Congress in 1922.
Thereafter, it was British women’s rights activist, writer and educationist Dr. Annie Besant who brought out a pioneering work, in consultation with many prominent Indian leaders, ‘The Commonwealth of India Bill’, in 1924-25. Basically, this was a proposal for the formation of a self-governing Dominion but remaining within the British Empire, at the same time upholding the ideal of the ancient village panchayat system as the basis of our future constitution.
In 1928 came the ‘Nehru Report’ by lawyer, activist and politician Motilal Nehru. The new Constitution of the Aundh State was framed in 1939, under the guidance of Mahatma Gandhi.
The colonial psyche may not be defended nor justified even partially for incorporation as a feature that advances the constitutionalism of India in whatsoever manner. The Indian masses were not in a state of freedom, which is an essential precondition for the development of constitutionalism in any country. The Indian mass did not have a common interest born in freedom, to protect and promote by creating and using the existing political mechanism.
Another effort in constitution making came in the form of ‘Report of the Conciliation Committee’ under the chairmanship of freedom fighter, lawyer and politician Sir Tej Bahadur Sapru. Then came the Objectives Resolution introduced by our first Prime Minister Jawaharlal Nehru in the Constituent Assembly, and finally the Constitution of India itself. All these developments can rightly be considered as factors of Indian constitutionalism.
During the years when our leaders were busy preparing a Constitution for India, a section of the leaders wanted the forthcoming Constitution in accordance with the ideals of Gandhiji, expressed during the years of freedom struggle. Even though, Gandhiji himself did not write any ‘Gandhian Constitution’, Shriman Narayan Agarwal, a former Governor of Gujarat and the then Principal of Seksaria College of Commerce, Wardha, had tried to prepare a constitution in accordance with the principles Gandhiji had been advocating.
Gandhiji himself wrote the foreword to the Constitution, while he was traveling by train to Calcutta, on November 30, 1945. It transpires from the foreword that the entire work cannot be said to represent Gandhiji’s view in every detail; rather the framework is that of Agarwal himself, based on a study of Gandhiji’s writings. He had gone through the draft twice, and concluded that Agarwal had made every effort to make it as accurate as he could. He wrote: “There is nothing in it which has jarred on me as inconsistent with what I would like to stand for”, and that “the author was good enough to make such alteration as I thought were necessary.” He has further noted that “the merit of his attempt consists in the fact that he has done what for want of time I have failed to do.”
The principal mantra of the Gandhian Constitution is ‘Non-violence, Democracy and Decentralisation’. According to Gandhiji, true democracy has to be based on non-violence; so long as democracy is sustained by violence, the weak will not be protected. His notion of democracy is that under it, the weakest should have the same opportunity as the strongest; and that can never happen through violence. According to him, the western democracy as practiced then was nothing but diluted Nazism or Fascism; at the best, it was merely a cloak to hide the Nazi or Fascist tendencies of Imperialism.
A constitution consists of the fundamental laws, customs, conventions, rules and regulations, involved in the governance of a State, while constitutionalism is not just a constitution, but that which ensures rule of law with limitations on the government, so that the governance may not go haywire.
Democracy and violence cannot go together; the States that are nominally democratic have either to become frankly totalitarian, or, if they are to become democratic, they must become courageously non-violent, he believed. Further, the view of Gandhiji was that the capitalist society is exploitation personified, and the essence of all kinds of exploitation is violence; in order to root out exploitation, a non-violent society has to be established; that alone can ensure economic freedom and equality, without which there can be no real political democracy.
Violence necessarily leads to centralization, and the essence of non-violence is decentralization, that is, decentralization of economic and political power. According to Gandhiji, self-sufficient and self-governing village communities are models of non-violent organizations. These village republics, which contain the germs of an ideal organization in the form of decentralized economy and local self-government, need to be reformed in tune with modern, changed circumstances and needs. Therefore, the future constitution of the country should be essentially based on the organization of the well-knit and co-coordinated village communities with their positive and direct democracy, non-violent cottage economy and human contacts, according to him; the State will be the best which is governed the least; Aperfect unit of self-government is a familiar environment in which people can know one another’s character, Gandhiji said.
Village communes existed in our country from times immemorial. They were considered as the basic units of the administration, even during the Vedic as well as Post Vedic Age. (For instance, the Rigveda refers to the ‘gramani’ to denote the headman of the village.) Indian rural republics also flourished during the Hindu, Muslim and Peshwa governments; they survived the disappearance of dynasties and downfall of Empires. During colonial years also, these village republics flourished.
But the inordinate and unscrupulous greed of the colonizers caused a gradual disintegration, inaugurated by the introduction of the ryotwari system replacing the village tenure system. (In modern India, it is happening due to the division of states on the lines of language, and the involvement of party politics along religious and criminal lines.) Yet these village republics reformed in line with modern technological advances can still become the smallest unit in a decentralized system of governance. They will furnish the basis of a new type of polity, which in its co-ordination of diverse local and functional groups, will be more satisfying in the State constructions of the future than any centralized structures. Of course, the evil of caste and its practice with all its disabilities must be curtailed.
There is a marked difference between a Constitution and constitutionalism; a constitution consists of the fundamental laws, customs, conventions, rules and regulations, involved in the governance of a State, while constitutionalism is not just a constitution, but that which ensures rule of law with limitations on the government, so that the governance may not go haywire.
Dr. Raju has rightly observed that “in order to ‘Indianize’ justice delivery systems, we must follow the Gandhian way.” At the same time, he ignores that Gandhian way of Indianisation consists mainly of the principles of non-violence and decentralisation; the latter is visualised by recognising the village republics, which is an anathema for Dr. Raju, who follows the opinion of Dr. B.R. Ambedkar, for whom the village republics have been the ruination of India, as they are “a sink of localism, a den of ignorance, narrow mindedness and communalism.”
Why such a marked difference between Dr. Ambedkar and Gandhiji? It seems, for the British, Dr. Ambedkar was a blue-eyed boy and Gandhiji, a troublesome and avoidable evil. For the British, both have served their pet theme, ‘divide and rule’. The differences between them had surfaced from the time of the Poona Pact, and continued throughout, all to the liking of the British, of course.
Tracing Constitutionalism from the fifth century B.C.
From the above lines, it has been made clear, that nothing that belonged to the rule of the company bahadur, nor that of the colonial masters, can be considered as relevant for advancing in any manner, the constitutionalism in India. It is the ideas that emerged from the freedom struggle that will have to be considered as that could advance constitutionalism in India.
But the present writer had been searching for any relevant traits in the past, including ancient literature. I struck gold, when I started studying the ‘Arthashastra’of the ancient polymath Kautilya, and pursued it for the last about 15 years or so; I found that there were series of Arthashastra that preceded the present one. All these were lost until one old manuscript came to light in the beginning the 20th century. I was able to bring out a serious study and now the manuscript is under publication under the caption: Katilya’s Arthasastra, 2020.
(This manuscript is an abridged form of a report the author had submitted to the Indian Council of Social Science Research (‘ICSSR’) as a requirement of a grant received for a major research project, entitled ‘Origins of Indian Constitutionalism: An Enquiry whether the Arthasastra of Kautilya was the First Written Constitution of India.’ The report submitted runs into more than 1,000 pages. Since the study is based on the Arthashastra traditions beginning from the sages, Brihaspati and Sukracharya, a further study is proposed to include the Dharmashastra traditions as well, and accordingly, another research proposal to ICSSR entitled: ‘Administration of Justice in Ancient India’ is pending consideration. The writer is also assisting the Gujarat National Law University to organise a Diploma Course ‘Legal History in Ancient India’, with three papers: Dharmashastra and present Legal System, (2) Survey on Indian Legal History and Literature, and (3) Crime and Punishment in Ancient India.)
The origins of Indian constitutionalism can be dated back to the fifth century B.C.
Village communes existed in our country from times immemorial. They were considered as the basic units of the administration, even during the Vedic as well as Post Vedic Age.
The basic structure of Sastra, for short, is evolved from Prakriti,and Prakriti-sampad as a whole, that is, with all its constituent elements in the political sense constituting the structure of governance (“Raja rajyamiti prakritisamkshepa:”)Sastra is that document which consists of these structural elements with elaborate rules. It has:
(1) an identifiable ‘Preamble’with 18 clauses,
(2) rules for the ‘sage-like ruler’ (Swamy),
(3) a well-structured administrative service of Amatyas,
(4)a Mantriparishad headed by a Mahamatra,
(5) an administration of the country (Janapada)headed by Samaharta and cities (Durga),which included the capital as well as the boundary-forts headed by a Nagarika,
(6) a ‘revenue (kosha) department’ under the care of Prasástre,
(7) a ‘vigilance department’ consisting of an efficient institutional set-up with various types of secret agents,
(8) a system of ‘administration of justice’ (Dandaniti) with two divisions, one headed by Dharmastha and the other by Pradestre,and
(9) a ‘department for external relations’ comprising of envoys (duta-pranidhi).
This Sastra may not have been composed as a constitution; it nevertheless has all the trappings of a constitution in the modern sense of the term. The features were in practice during the Maurya Empire. It has all necessary attributes that a constitution should have. It consists of Rules and stipulations evolved from the pre-existing customs and usages for the governance of a nation. It ensures limitations on the government with fixed rules, norms and principles binding on the Ruler, to have effective controls in place for the exercise of political power. The rule of law on all four scores are visible throughout, and they are all designated as the fundamental law of the polity. The twin test of constitutionalism, namely, ‘rule of law’ and ‘limited government’ are both visible when the governance is at work, in accordance with Sastra, and there is no occasion for the governance of the nation to degenerate into an arbitrary or tyrannical rule.
There are many other characteristics visible therein, to hold that the sastra was indeed a perfect constitution. They are:
(a) It resolves the apparent contradiction, seen while applying the twin principles of ‘limited government’ and ‘rule of law’;
(b) It is based on sound basic concepts/theories, written in a understandable language (“Sukhagrahanavigneyam tatvarthapadanishchitam kautilyeya kritam sastram vimuktagranthavistharam”/);
(c) It is based on the social and cultural past (“Prithvibhya labhe palane cha yavantyarthhasaarthani purvacharyaih/Prasthapitani prayashsthani samhrityaikamidamarthhasaastram kritam /1/);
(d) It was a classic of the time (“sastramidamyuktamethabhistantrayuktibhi: …”);
(e) It is established for a definite purpose (“Drashtva vipratipathhim bahudha shastreshu bhashyakaranam / Swayameva vishnuguptashchakar sutram cha bhashyam cha //74//”);
(f) It is a constitutional device to establish ‘Truth’ (Satye sthito dharma) (“Dharmarthham cha kamam pravarthayati pathi cha/“Adharmanarthavidveshanindam sastram nihanti cha”//72//);
This Sastra may not have been composed as a constitution; it nevertheless has all the trappings of a constitution in the modern sense of the term.
(g) What is laid down should never be altered, except by rajasasanas issued by the Ruler meet the present need;
(h) It declares that the Ruler must wield the power of dandaniti);
(i) It prescribes definite rules for rajasasana;
(j) The making of this constitution has been compelled by necessity;
(k) It is conceived by an enlightened personality who had faced bitter experience (“Yena shastram cha shastram cha nandarajagatha cha bhuh/Amarshenodhrithanyashu thena shastramidam kritham”//73//);
(l) It is independent of a theory of divine origin;
(m) It is not evolved from natural law;
(n) It is based on the perceived self-sustainability of the nature itself;
(o) It depends upon a powerful but sage-like ruler;
(p) It establishes an obligation-based system; and
(q) It has a structure befitting any written Constitutions of the world. The Sastra was actually written addressing the then known India, namely, the Chakravartikshetra.
Even though many more research studies are still required, Indianisation surely would take care of the clauses (5) and (6) of the Objectives Resolution introduced by Jawaharlal Nehru in the Constituent Assembly: “(5) WHEREIN shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and (6) WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes”.
These lofty principles has the capacity to contain all the evils of the British practice of ‘divide and rule’.
(Part I and Part II of Dr.M.P.Raju’s response to this article can be accessed here and here.)