Imperative omissions in the Constitution

Revisiting sources and influences in the making of the founding document of India

Yashraj Wade | January 26, 2022


#Constitution   #Dr B. R. Ambedkar   #colonialism   #British rule   #history  
Dr B. R. Ambedkar, the chairman of the Drafting Committee of the Constituent Assembly
Dr B. R. Ambedkar, the chairman of the Drafting Committee of the Constituent Assembly

The making of the Indian Constitution and its subsequent adoption on January 26, 1950 required the founding members to go through several pieces of the legal document that the country already had during the British rule, let alone the Constitution of other countries. Until 1857, these laws, although applied during the Company rule, were promulgated by the British parliament at the behest of the Crown.

The Constitution is known for carefully borrowing a few principles that were deemed fit for India from other constitutions. The parliamentary form of government, ‘Directive Principles of State Policy’ and ‘Fundamental Rights’ are borrowed from the British, Irish and the US Constitutions, respectively, to name a few. Similarly, there were instances of borrowing from the Acts/laws passed in the undivided India under British rule. It was hence criticised for being a ‘bag of borrowings’ and a ‘hotch-potch Constitution’. Answering to this criticism Dr. B.R. Ambedkar, the Chairman of the Drafting Committee of the Constituent Assembly, said “...Given these facts, all Constitutions in their main provision must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country. The charge of producing a blind copy of the Constitutions of other countries is based, I am sure, on an inadequate study of the Constitution.”

Dr. Ambedkar’s answer finds merit because the rationale behind selection and omission in the framing of the Constitution has stood the test of time for more than seven decades since its adoption.

However, there is no harm in revisiting the sources and the omissions in the formulation the Constitution that were once the law of the land in the British era. On the contrary, it becomes all the more important to understand the origin, intent, background, and history behind the colonial laws and policy as it helps us arrive at the rationale behind the careful omission and selection of the tone and tenets from these laws starting 1773.

After the Battle of Buxar in 1764, the Company gained exclusive Diwani, i.e., revenue rights and Nizamat, i.e., police and judicial functions in the erstwhile Bengal. Thus began the process of formulating laws that have considerably influenced India’s Constitution and polity. This article only highlights the significantly influencing tone and tenets of the laws during the Company rule (1773-1858) and its subsequent effects.

The features of the Regulating Act of 1773 provided for the first Governor of Bengal, Warren Hastings, a Supreme Court of Calcutta (1774), prohibited bribes and private trade and, more importantly, increased the influence and control of the British government over the Court of Directors (the governing body) of the Company. While it created a strong system to exploit India in a mercantilist pragmatic way, it also laid the foundation of the direct influence of the British Parliament which was exercised via laws to further the policy of colonialism over India.

Pitt’s India Act of 1784, named after the then British PM William Pitt, allowed the Court of Directors to formally delve into political/public functions and distinguished between the Company’s commercial and political functions. It was also the first time that the Company territories were called ‘British possessions in India’ and allowed significant control over the Company’s activities. Thus, it established stronger influence and leverage of the British Parliament over the Company’s affairs, especially ones involving a political consequence. As a result, the Crown in 1813 called its territories in India as “undoubted sovereignty”.

Subsequently, the Charter Act of 1813 strengthened the seeds of coloniality in the Indian subcontinent. It allowed Christian missionaries to spread the evangelical gospel to the ‘heathens’ practising idolatry to a ‘false religion’ and show them the path of the White European coloniser as the Indian natives were violent, backward and needed ‘moral improvement’. This intent is categorically stated in Section 33 of the very Act itself, debates of the British parliament and the clergy in Britain. Not only was this harmful to the indigenous identity and native Indic consciousness, but it also created a perverse exaggeration of their traditional practices.

Western education was another instrument to ‘civilise’ Indians and build ‘scientific temper’. Proponents of western education like Immanuel Kant consciously wrote supporting the racial hierarchy theory in his works. Pointing out that the Africans, Indians and Native Americans lacked mental capacity and were weak and hence occupied the lowest rung. This highlights the hypocrisy around terms like scientific, modern, civilised, etc. used and propagated by the coloniser.

Setting an inferiority complex for one’s own traditional belief and traditional knowledge system is nothing but coloniality at play. For coloniality is the mindset and motivation that drives colonisation, whereas colonisation is a process for building necessary infrastructure through the agents that are colonisers.

It also had a direct effect on the tribal communities of India which began to call colonisers as ‘diku’ or outsiders because of their imposition of alien rule and interference with their traditional customs. This situation was further aggravated due to the exploitative revenue and taxation system which caused widespread revolts and rebellion. The Act’s role in the 1857 sepoy mutiny as a domino effect can also not be discounted as it was caused due to several political and religious factors. Through the passing of the Act, the intention of the colonisers was officially crystallised and written in stone.

The following Charter Acts of 1833 and 1853 collectively provided for the first Governor of India, an attempt to introduce an open competition for civil servants and then finally throwing it open to Indians in 1853. This was the final Act under the Company rule after which the Crown took over the powers of government and exercised territorial and revenue functions.

The Constituent Assembly has done an excellent job of selectively borrowing which could not have been possible without examining the origin of the sources, significant credit also goes to the freedom struggle. Moving forward, it is critical for India to carve its unique path and perspective which is free from colonial lenses, as answers to its unique challenges.

Yashraj Wade is a BA Economics Graduate from St. Xaviers's College, Mumbai. He tweets @wade_yashraj  

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