Padma Shamsher And Constitutional Development In British India

The Ranas of Nepal, including Prime Minister Padma Shamsher, had a decent official and personal relationship with the rulers of British India. The Ranas were more exposed to British India than to any other government or people, including historical Tibet, China and the United Kingdom. As such, the Ranas had the opportunity to learn from the British due to historical military ties as well as trade and wartime collaborations. Disregarding the quality of democracy and the status of human rights in Britain, the British in India had created their own (usually inferior) constitutional legal subsystems befitting their colonial ambitions. Therefore, the quality of their laws, institutions and administration were compromised in the colonial territories.

Feb. 6, 2020, 2:59 p.m.

The Ranas of Nepal, including Prime Minister Padma Shamsher, had a decent official and personal relationship with the rulers of British India. The Ranas were more exposed to British India than to any other government or people, including historical Tibet, China and the United Kingdom.

As such, the Ranas had the opportunity to learn from the British due to historical military ties as well as trade and wartime collaborations. Disregarding the quality of democracy and the status of human rights in Britain, the British in India had created their own (usually inferior) constitutional legal subsystems befitting their colonial ambitions. Therefore, the quality of their laws, institutions and administration were compromised in the colonial territories.

The Battle of Plassey, fought in 1757, marked the British's first move to colonize the South Asian sub-continent, thus kick-starting the beginning of the imperial or colonial era. The Battle was fought between the British East India Company under the command of Robert Clive and Mir Jafar, the commander-in-chief of the Nawab of Bengal. The Company was an English, and later British, joint-stock company that received a charter from Queen Elizabeth in December 1600 to trade in the Indian Ocean region; initially, they were to trade just with Mughal India and the East Indies, but later, they traded with Qing China as well. In the Battle, Jafar and his forces betrayed and helped defeat the Nawab, and Jafar was placed on the throne as a British puppet ruler. The Battle transformed the British's perspective about colonizing India, as they realized their strengths and potentials in conquering smaller kingdoms in the sub-continent.

In 1765, after the Battle of Buxar, in the territory of present-day Bihar, the Company won the right to collect revenue of Bengal, Bihar and Orissa and took a large area of the subcontinent under its control. The Battle was fought between the forces of the Company and the combined army of an alliance of some states, including Bengal, Awadh, and the Mughal Empire. This Battle confirmed the British's power over Bengal and Bihar after its initial success at the Battle of Plassey. The Company also ended the rule of Bengal through a subservient Nawab.

Thenceforth, the Company took control of the territory with renewed confidence. The British government set up a secret committee to evaluate the affairs of the British East India Company, as it was making important strides in business as well as politics. The report submitted by the committee paved the way for the Regulating Act, which enforced British governmental control and regulated the Company's affairs, including its Indian territories. It also initiated the British Crown's takeover process of India, completed in 1858. The British government pursued several experiments to consolidate its position in India and develop the constitutional legal order for this purpose.

The Government of India Act 1919 was one of the important initiatives in this regard. It is also called the Montagu Chelmsford Reforms and covered ten years, from 1919 to 1929. The Act was passed to expand Indians’ participation in the government. This Act represented the end of benevolent despotism and began the genesis of responsible government. It was set to be reviewed by the Simon Commission in 10 years. The Act provided a dual form of government (a "diarchy") for the major provinces.

In each such province, control of some areas of government was given to a Government of ministers answerable to the enlarged Provincial Council by way of a "transferred list." The transferred list included agriculture, supervision of local government, health, and education. At the same time, all other areas of government (the “reserved list”) remained under the control of the Viceroy. This list included defense (the military), foreign affairs, and communications. The Imperial Legislative Council was enlarged, reformed, and became a bicameral legislature for all India. The lower house was the Legislative Assembly of 145 members, of which 104 were elected and 41 nominated, with a tenure of three years. The upper house was the Council of State, consisting of 34 elected and 26 nominated members, with a tenure of five years.

This Act had a separate Preamble that declared that the objective of the British Government was to gradually introduce responsible government in India. Apart from defining diarchy, the Act created a provision for classifying central and provincial subjects. It maintained that the Income Tax was the source of revenue for the central government. However, for Bengal and Bombay, to meet their objections, a provision assigned them 25 percent of the income tax. No bill of the legislature could be deemed to have been passed unless assented to by the Viceroy. The latter could, however, enact a bill without the assent of the legislature, thus creating the central legislature bicameral. The Act provided for the establishment of a Public Service Commission for the first time. It also created a provision that a statutory commission would be set up at the end of the 10 years after the Act was passed and which would inquire into the workings of the government. Thus, the Simon Commission for constitutional reform in 1927 was an outcome of this provision.

Communal representation was extended, and Sikhs, Europeans, and Anglo-Indians were all included. The franchise (right to vote) was granted only to a limited number of those who paid a minimum "tax" to the government. Additionally, property was one of the main bases to determine a franchisee, and those who had property, taxable income and paid land revenue of Rs. 3000 were entitled to vote.

The seats were distributed among the provinces, not upon the basis of population but upon the basis of both their importance as determined by the government and communities. The financial powers of the central legislature were also very limited. The budget was to be divided into two categories: votable and non-votable. The votable items covered only a third of the total expenditure. Even in this sphere, the Governor-General was empowered to restore any grant refused or reduced by the legislature if, in his opinion, the demand was essential for the discharge of his responsibilities. Thus, the Government of India Act provided for a partial transfer of power to the electorate through the system of diarchy. It also prepared the ground for Indian federalism, as it identified the provinces as units of fiscal and general administration.

The Government of India Act 1935 was the next effort to address the demand of the Indian people for constitutional reforms. Until 1999, it was the longest Act of the British Parliament to ever be enacted.[1] The Act was the outcome of the Simon Commission Report, deliberation at roundtable conferences, and the white paper introduced in the British Parliament. The Act granted a large measure of autonomy to the provinces of British India (thus ending the system of diarchy introduced by the Government of India Act 1919). It contained the provision for the establishment of a "Federation of India" to be comprised of both British India and some or all of the "princely states." It introduced direct elections, thus increasing the franchise from seven million to 35 million people.

The Act also partially reorganized the provinces.[2] Membership to the provincial assemblies was altered so as to include any number of elected Indian representatives, who were now able to form majorities and gain appointment to form governments. However, the degree of autonomy introduced at the provincial level was subject to important limitations: The provincial Governors retained important reserve powers, and the British authorities also retained a right to suspend responsible government. The parts of the Act intended to establish the Federation of India never came into operation, due to opposition from rulers of the princely states. The remaining parts of the Act were enforced in 1937, when the first elections under the Act were held.

Unlike the British statues and their Acts, the Government of India Act had no preamble setting out the broad philosophy of its objectives. Like the Commonwealth constitutional legislation of the time, the Act did not include a "bill of rights" within the new system that it aimed to establish. However, in the case of the proposed Federation of India, there was a further complication in incorporating such a set of rights, as the new entity would have included nominally sovereign (and generally autocratic) princely states. However, a different approach was considered by some, given that the draft outline constitution in the Nehru Report of the All Parties Conference of 1928 included such a bill of rights. A close reading of the Act reveals that the British Government equipped itself with the legal instruments required to reassume total control any time it deemed necessary.

The Act divided British India into two categories: two governor provinces and five chief commissioner provinces. The Act enlarged the legislature in the provinces as well. Six provinces (Assam, Bengal, Bihar, Bombay, Madras, and the United Province) were to have bicameral legislatures (i.e., the Legislative Council and the Legislative Assembly). Diarchy, which was abolished in the provinces, was established at the center. This meant that the Reserved Subjects (defense, external affairs, tribal affairs, etc.) were to be administered by the Viceroy and the Governor-General. The Act also separated Burma from India. Sind and North West Frontier Province were given the status of province.

Lastly, the Indian Independence Act 1947 provided for India’s partition and the establishment of two dominions, India and Pakistan, on 15 August, 1947. All laws enforced in British India would remain applicable until amended by the dominion legislature. Each dominion and all provinces were to be governed per the Government India Act 1935 until the adoption of a new constitution. The Act provided the termination of the suzerainty of the British Crown over the princely states. All treaty and functions exercised by the Crown over the princely states and the rulers would lapse from August 15, 1947.

Additionally, the Constituent Assembly of India was elected to write the Constitution of India, which, following India's independence, served as the nation's first parliament. During the First World War, a few Indian nationalists demanded that the people of India be given the right to framing a constitution for themselves. However, the British government did not concede to the Indian demand, popularized by the Swaraj Party, which was newly established, during the Council elections of 1924. Many leaders of the Indian National Congress considered the Constituent Assembly to merely be an enlarged edition of an all-party conference or an Indian roundtable of sorts. Later, Mr M. N. Roy, a revolutionary and a founder of Communist Party of India, put forth this idea. However, in 1933, when the white paper proposals as issued by the British government were discussed, the issue of the people framing their own constitution came to the center of politics. Although the Congress accepted the Constituent Assembly’s method of drafting a new constitution in 1934, many congress leaders continued to believe in the Conference. After the promulgation of the 1935 Act, as noted above, the Congress reiterated its entire rejection and clarified that it would only recognize a constitutional structure that had been framed by its own people.

When the Second World War broke out and India declared war against Germany, the Indian National Congress withdrew all cooperation for the British government. The Congress asked Britain to define its aims in the War and recognize India's independence and right of its people to frame their constitution through a constituent assembly. C. Rajagopalachari, who would be the last Governor-General of India, voiced the demands for a constituent assembly based on adult franchise on 15 November, 1939, a demand that was finally accepted by the British in August 1940.

On 8 August 1940, Viceroy Lord Linlithgow released a statement about the expansion of the Governor-General's Executive Council and the establishment of a War Advisory Council. This offer, known as the August Offer, included lending full weight to minority opinions and allowing Indians to draft their own constitution. Britain did not acknowledge the right of Indians to frame their own constitution until the 1942 Cripps Declaration, following the failed attempt to secure full Indian cooperation and support for the British's efforts in the Second World War.

Under the Cabinet Mission Plan of 1946, which aimed to transfer the British government’s powers to the Indian leadership, at the initiative of Prime Minister Clement Attlee, elections were held for the first time for the Constituent Assembly. It worked for the benefit of Indian unity, together with the Congress and Muslim League, to keep from dividing the country between India and Pakistan. The members of the Constituent Assembly were elected by the provincial assemblies by a single, transferable-vote system of proportional representation.

The Constituent Assembly met for the first time on 9 December, 1946, reassembling on 14 August, 1947 as a sovereign body and as the successor to the British Parliament's authority in India. As a result of the partition, under the Mountbatten Plan, a separate Constituent Assembly of Pakistan was established on 3 June, 1947. The representatives of the areas incorporated into Pakistan ceased to be members of the Constituent Assembly of India. The Constituent Assembly drafted and adopted the Constitution of India in less than three years. It was framed by a Constituent Assembly, although elected on a limited franchise, but is believed to be one of the most successful constitutions of the world. The Constitution of India came into force on 26 January 1950, the day when the republic of India was born.

Apparently, these British Indian experiments, positive or negative, were known to Padma Shamsher and the Rana elites. These experiments certainly influenced them in their course of constitutional reform in Nepal, especially given that Padma Shamsher brought in Indian constitutional experts during the constitution-writing process of Nepal.

[This article is part of the research work the author is conducting on the first Constitution of Nepal, issued in 1948]

Dr Bipin Adhikari 357 (1).jpg

Dr. Bipin Adhikari

Dr Adhikari is a senior constitutional expert and the founding dean of the Kathmandu University School of Law). He can be reached at [lawyers_inc_nepal@yahoo.com]

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