BY M. VENKATARANGAIYA, M.A.,

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India has become a laboratory for Englishmen to make constitutional experiments. They have developed a special technique for this purpose. Every experiment is being preceded by an exhaustive enquiry by commissions and special committees, by voluminous reports from the Government of India and provincial governments, and by representations from interested parties and groups. Piles of data are collected, and with the help of experts final conclusions are drawn from them to form the basis of a fresh scheme of government. But it is curious to find that in spite of these mountains of labour a solution to the constitutional problem has not been discovered. Within a short period of twenty-five years two constitutions were framed for the country, tested, and finally given up as hopelessly inadequate. Englishmen are now engaged in framing a third constitution. The Minto-Morley Reforms were introduced in 1909 and extraordinary claims were made for them, even though they were condemned by the politically-minded classes of India as unsuited to the requirements of the country. Their criticism was then brushed aside–as is being done now-as originating from political extremism. But within eight years after the inauguration of these reforms, Parliament itself had to come out with a new policy enunciated in the famous declaration of August 1917 and pass a new Government of India Act in 1919. This Act was put into effect with a blow of trumpets and the new machine of Diarchy began its work. Its shortcomings became clear within a very brief period of its existence, and a Statutory (Simon) Commission had to be appointed in 1927 and entrusted with the work of making an exhaustive enquiry into the whole subject of the form of government best suited for the people of India. The conclusions of their report have been examined and re-examined during a period of five years, and their essence is to be found in the Report of the Joint Parliamentary Committee, on the basis of which a new scheme of government is shortly to be introduced.

There is nothing, however, to show that the latest experiment is going to succeed any better or have a longer lease of life than its predecessors. For it is the outcome of a series of reports which start with the same hypothesis, elaborate the same set of arguments, and arrive fundamentally at the same conclusions as the reports that preceded the legislation of 1909 and 1919. Everyone of these reports contains a chapter on ‘The Conditions of the Indian Problem’ which forms the starting point for constitution-making. The analysis of these conditions made in 1907 is not different from that contained in the Montagu-Chelmsford Report of 1918, or the Simon Commission Report of 1930, or the Joint Parliamentary Committee Report of 1934. The Montagu-Chelmsford Report, for instance, st~tes thus: ‘Two dominating conditions will be quickly apparent to anyone who turns to the records and reports. One is that the immense masses of the people are poor, ignorant and helpless, far beyond the standards of Europe; and the other is that there runs through Indian society a series of cleavages of religion, race and caste–which constantly threaten its solidarity, and of which any wise political scheme must take serious heed.’ The Simon Commission has not a different tale to tell after the lapse of twelve years. ‘The immense area and population of India, the diversities of race, creed and caste, the existence of the Indian States, the predominance in numbers of the rural population, the high percentage of illiteracy, and the standing menace of the North-West frontier, are all facts which no person, British or Indian, who has to deal with the constitutional problem of India can possibly ignore.’ The Joint Parliamentary Committee echoes the same idea: ‘It is inhabited by many races and tribes, speaking a dozen main languages and over two hundred minor dialects, and often as distinct from one another in origin, tradition and manner of life as are the nations of Europe.’ These are the factors of the Indian situation that count with Englishmen and nothing else impresses them. The under-lying unity of India, and the growth of political consciousness and of national aspirations do not appeal to them as being really significant. It is their blindness to the new facts in the situation that is really responsible for the failure of the constitutional experiments that they have so far made. From these failures one is forced to conclude that their analysis of the relevant facts is wrong, that they have not made the right approach to the problem, and that they may not have even the capacity to see the more important facts. Otherwise there is no reason why the constitutional superstructure which they have been raising is found to require such frequent remodelling.

Nothing like this has happened in those other parts of the British Empire like Canada, Australia, South Africa and Ireland where the constitutional problem was similar in character, so far as the relations between them and England were concerned. Canada and Australia are vaster in size than India; there is much diversity of race, language and religion in Canada as well as in South Africa. But the Canadian Constitution is as old as 1867. No need has arisen to bring about a change in it. The Australian Constitution goes back to 1900 and the South African Constitution to 1910.

One conclusion that emerges from this brief survey is that, until the time is ripe for the making of an Indian Constitution in India itself instead of in London–and the constitutions of Canada, Australia, South Africa and Ireland were not made in London–the stage of experimentation will not be over and stability cannot be introduced into any scheme of government that may be framed. The problem in India at present is entirely political. The question that requires an answer is, ‘Who should have the ultimate political power?’ Until an answer is found for this, the question of constitution making which concerns itself with the devising of a satisfactory machinery for the exercise of political power cannot be said to really arise.

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Constitutional experiments became necessary in India during this century because of the failure of those in power to discharge their responsibilities properly. It is this that has brought about an agitation for the transfer of power into the hands of other people, who may be reasonably expected to make a better use of it. The English bureaucracy in India has been in undisputed control over the affairs of the country for at least a century. No bureaucracy in the world had at any time the same splendid opportunities for promoting the welfare of the masses. Its sway was unquestioned; people had implicit faith in it. There was no opposition to it till very recently. There was no politically-minded class to contest with it for popular favour. The century during which they enjoyed all this unquestioned authority has been the most progressive century in the history of mankind. In their own home, England, liberal ideas were exercising their utmost influence. Mechanical inventions were being made use of to develop the material prosperity of the nation. Education became widespread. The standard of life was raised. The power-State became transformed into the welfare-State. This was the work of Englishmen in England. What about their work in India? The English bureaucracy of India who were the products of English Public Schools and English Universities, and who were imbued with the high traditions of English public life, satisfied themselves merely with the preservation of order in this country. Here is the picture of India drawn by the Joint Parliamentary Committee: ‘The great majority of the people of India derive their living from the soil and practise for the most part a traditional and self-sufficient agriculture. . . .

The average standard of living is low and can scarcely be compared even with that of the more backward countries, of Europe. Literacy is rare outside urban area and even in these the number of literates bears but a small proportion to the total population.’ No stronger evidence is required to point out the complete failure of the present holders of power to avail themselves of the glorious opportunities they had during all these years. This is at the root of all contemporary political agitation in India.

It is the common opinion held by most Englishmen that the backwardness of the people is the result of the peculiar geographical, social and economic conditions of the country and not of the system of government, that no government can control these conditions, remove the defects in them and do away with the backwardness of the people. But this is a wrong reading of the place of politics in the well-being of a community. Progress is always the result of a harmonious working of political, economic and social factors in a country. Each of them helps the others and is helped by them. None by itself is self-sufficient. For the better ordering of society and for the removal of social and economic ills, the State is essential. It represents force and power without which the opposing and conflicting elements in the community which stand in the way of progress cannot become reconciled. Historians are fond of praising the doctrine of neutrality observed by certain governments–especially imperialistic governments. But no doctrine has proved so harmful as this. In most cases it is only a euphemism for indifference and for toleration of social abuses and for a love of ease and comfort on the part of those in authority. The State has a positive duty in promoting the country’s well-being. If countries in the West and a country like Japan in the East have attained such a high level of progress, it is not because all of them had no social or economic drawbacks but because governments in them have been energetic in removing those drawbacks and developing the countries in the right direction.

It is a matter for congratulation that the Joint Parliamentary Committee has realised this. It points out that, ‘In the sphere of social administration, it is evident that a point has been reached where further progress depends upon the assumption by Indians of real. responsibility for Indian social conditions.’ But the Committee does not go far enough. It has taken only a limited view of the requirements of the situation. For, what is true of Indian social conditions is equally true of Indian economic and Indian political conditions. Progress in everyone of these fields–and not merely in the social sphere–depends entirely on the assumption of real responsibility by Indians themselves. All these are mutually interdependent. To set up one authority to regulate social conditions and another to regulate economic conditions and a third to regulate political conditions is to make the governmental system weak and inefficient, introduce mutual conflict among the different authorities and prevent their action from producing right results. The life of the community is an organic unity. Different kinds of action are required to properly regulate it. Governmental action is one of them, and unless there is a unified government set up for this purpose the very objects of regulation are sure to be defeated.

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The central defect of the constitutional experiment outlined by the Joint Parliamentary Committee–and this it shares with the previous experiments–lies essentially in this attempt at the compartmentalisation of government. It creates an artificial division where what is required is unity; and the basis on which it has brought about the division is an irrational one. It proceeds to set up two governments–one to be the custodian of power and the other to be held responsible for the promotion of social and economic welfare. The custodians of the instruments of power–the army, the navy, police, etc.–are the Governors and the Governor-General, assisted as of old by the civilian bureaucracy. The responsibility for welfare is laid on the Ministers and legislatures in the provinces and at the centre. There is no need to point out that government is an effective instrument for promoting the well-being of the community, only to the extent to which it possesses coercive authority and the prestige which that authority brings along with it. That is the reason why where voluntary organisations and persuasive appeals fail, government succeeds. If those that are expected to undertake measures for furthering the material and social welfare of the community are denied this ultimate authority to coerce and use the instrument of compulsion, there is no prospect whatever of their obtaining success in their efforts. In the past the bureaucracy possessed the power to coerce as well as the responsibility for promoting welfare. Constitutional experiments in India are being made only with a view to transfer responsibility to Ministers while power is kept by the bureaucracy.

Another feature of these experiments is that, where there is a conflict between the custodians of power and the promoters of general welfare, it is the latter that have to yield to the former. Power becomes the end and not the means for bringing about progress. Moreover, conflicts arising between these two authorities are not submitted for arbitration by an impartial judicial tribunal, or by the electorate of the land who are the parties that are really affected by the conflict, but are settled by the custodians of the coercive authority. They have the controlling power over the actions of the ministers of welfare and the latter should so conduct themselves that they never come into clash with the former. It is in the light of these general observations that the Report of the Joint Parliamentary Committee has to be studied.

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The Report is regarded as making a definite step in advance of the present system of government for its advocacy of ‘provincial autonomy.’ The question that has to be considered is the extent of the reality of autonomy that it recommends. There have been two conflicting views of provincial autonomy ever since the beginning of constitutional agitation in India on this subject–the view of the Pandits in the service of the Government of India, and the view of the leaders of Indian political thought. The freedom of the provincial governnent, in a sphere of its own, from the control of the central government of India, irrespective of the form of provincial government, is the essential characteristic of provincial autonomy from the point of view of the Pandits. In the view of Indian political leaders, the technical freedom from the control of the central government is not the essence of provincial autonomy, but it is the exercise of power in the’ provinces by a responsible ministry and an elected legislature. The autonomy that the Indian leaders have in mind is not autonomy to the Governor under which he becomes practically a dictator, but the autonomy of the ministry. The Pandits do not agree with this view. The (Muddiman) Reforms Enquiry Committee of 1924 stated that, ‘No particular form of constitution whether in the central government or in the provinces is a necessary implication of the term. In their own spheres the constitution of the central government and of the provincial governments may be autocratic or democratic and the provincial governments may vary inter se as to their constitutions.’ Sir Frederick Whyte also states in his book on ‘India, A Federation’ thus: ‘Most Indian controversialists employ it to describe both the freedom of the provincial government from external control by the Government of India and the internal political condition of representative and responsible government. The true meaning of the word lies in the former interpretation.’ The Report of the Joint Parliamentary Committee practically agrees with the Pandits when it draws a distinction between ‘provincial autonomy’ and the manner of exercising it. It defines ‘provincial autonomy’ as the scheme’ whereby each of the Governors’ provinces will possess an executive and a legislature having exclusive authority within the province in a precisely defined sphere, broadly free from control by the central government and legislature. This we conceive to be the essence of provincial autonomy, though no doubt there is room for wide differences of opinion with regard to the manner in which that exclusive authority is to be exercised.’ The Report describes the way in which it should be exercised and an analysis of it makes it clear that it should be exercised by the executive and legislature subject to the ultimate control of the Governor. Real power in the province is lodged with him and all other organs of government are made subordinate to him. There has always been a suspicion that this would be the kind of autonomy that the provinces are likely to get and this has been confirmed by the Report.

The real position of the Governor of a province is that of a representative of the central government. He is there to watch its interests, to receive instructions from it and to carry them out. There cannot therefore be real autonomy to the province so long as he is the person on whom this autonomy is conferred. The Report itself admits that, ‘Where the Governor is exercising his special powers, is acting in his discretion, he must be constitutionally responsible to some authority, and that responsibility will be in the first instance to the Governor-General acting in his discretion, and through him to the Secretary of State and ultimately to Parliament.’

No elaborate argument is needed to show that the Governor will be the main spring of action and the real motor force in driving the machinery of provincial government in the proposed constitution. The Report itself says thus: ‘We concur with everything which has been said by the Statutory Commission on the part which the Governors have played in the working of the Reforms of 1919, and we do not think that the part which they will play in the future will be any less important or valuable.’ There can be no real responsible government in the provinces unless the part played by the Governor becomes less important and less valuable, but such a change is not under contemplation. Critics have pointed out the unreality of the so-called transfer of ‘ Law and Order’ to the Ministers, to their not having any control over the Civil Services, to the possibility of their administrative actions and legislative policies being vetoed by the Governor in the exercise of his special responsibilities, and the numerous other direct and indirect ways in which he can take advantage of the communal groupings in the legislature and manipulate them with a view to keep his grip on the provincial government as a whole. The Governor will continue to be the pivot of provincial administration in future as he was in the past.

The Report proceeds to defend the controlling position of the Governor on the specious plea that the vital importance in India is that of a strong executive. This doctrine of a ‘strong executive’ as put forward by the Committee is a dangerous one and requires refutation. It is no doubt true that in the evolution of modern democracy a stage has been reached in most countries where it is found necessary to make the executive less dependent on the legislature than was the case in earlier times. Democracies originally started as protests against the arbitrary rule of the executive and therefore made the elected legislatures omnipotent. But experience has shown that the executive should not be quite at the mercy of parliaments, as that would lead to cabinet instability and inefficiency. As a matter of fact the Cabinet is now the controlling factor in England. Parliament has become really subordinate to it instead of being supreme over it. The movement for constitutional reform in France, which desires to give the Cabinet the power to dissolve the legislature, has for its object the strengthening of the executive. Most of the post-war democratic constitutions of Europe have made provision for strong executives independent of legislatures. But the conclusion which the Report tries to draw from movements like these is not warranted by facts. For, in everyone of these cases the executive that is strengthened is an elected executive, an executive that commands the confidence of the people at large or of the legislatures themselves. It is not the strengthening of an executive that derives its authority from outside the State. There would be meaning in some constitutional machinery being devised for strengthening the provincial cabinets but not for strengthening the Governor. Referring to the safeguards, the Report states that ‘they represent on the contrary (to quote a very imperfect but significant analogy) a retention of power as substantial, and as fully endorsed by the law as that vested by the Constitution of the United States in the President as Commander-in-chief of the Army.’ But it forgets that the President derives his authority from the people while the Governor of a province is not elected by them. A strong executive is absolutely necessary, but it is an executive that commands the confidence of the people that requires to be strengthened.

It is from this standpoint that one has to examine the real significance of the abolition of Diarchy which is regarded as one of the cardinal features of the Report. When we look beneath the surface, we will have to say that either Diarchy has not been completely abolished, or, if it is abolished, it is in favour of al1 authority being concentrated in the Governor as was the case before 1919. The unity of provincial government is not the result of the provincial cabinet being made solely responsible for the whole field of administration. Has Diarchy been really abolished? The essence of Diarchy is the existence of two governments side by side, each controlling a certain numbe0r of departments. In the new provincial constitution the control over certain departments is vested in the Governor and of other departments in the Ministers. ‘Law and Order,’ the ‘Police,’ the ‘Public Services,’ the ‘Department of Minorities,’ are reserved to the Governor. The other departments are transferred. This is the practical effect of the limitations that have been imposed on the authority of Ministers in regard to matters relating to the Police and of the special responsibilities conferred on the Governor. The only difference between Diarchy in its old form and Diarchy in its new form is that, in the exercise of his powers in the reserved departments, the Governor will not in future be fettered by an executive council. He is the sole monarch of the situation, except for the possibility of the influence that may be exercised over him by the super-secretary. The additional powers conferred on the Governor, under which he can permanently place on the statute book his own Acts and appropriate revenues to discharge his special responsibilities and pass ordinances, amount to establishing in each province two governments instead of one. And this is the real meaning of Diarchy.

The only sense in which therefore Diarchy may be said to have been abolished is that in future the real authority in the province will be in the hands of the Governor. This is the ultimate significance of the special responsibilities conferred on him. These responsibilities have to be looked at as standards by which the Governor is to judge whether the provincial government is carried on well or ill by the Ministers. They give him a power of general review of the whole field of administration. This is one of the ingenious discoveries in , the field of Indian constitutional experiment. These constitute what may be called the purposes of good government as conceived by the J.P.C., and they may be used for criticising the actions of the Ministers and the legislature, whatever be the department to which they relate. Referring to the scope of the Governor’s special responsibility for the prevention of any grave menace to the peace or tranquility of the province, the Report says: ‘Still less can we see any justification for restricting the Governor’s action to the department of Law and Order, by which we suppose the Police department. There are many other branches of administration in which ill-advised measures may give rise to a menace to the peace or tranquility of the province; and we can readily conceive circumstances in connection with land-revenue or public health, to mention no others, which might well have this effect.’ Even in regard to public health, Ministers cannot have freedom of action. His responsibility for the safeguarding of the legitimate interests of minorities is of the same indefinite character and gives him any amount of scope for interference with Ministers’ policies. In this land where every community is made to feel that it is a minority community, and where the list of such communities has shown a tendency to expand, there will be nothing to prevent the Governor from taking every community under his beneficent control. The word ‘legitimate’ again is so very vague that it can be made to include a multitude of things. What legislation is there which will not affect the majority in one way and the minority in another? His special responsibility for the prevention of commercial discrimination is vaguer still. Even after drawing a distinction between administrative discrimination and legislative discrimination, between bills which are discriminatory in fact and those which are so in form, the Report feels that the discretion to be left to the Governor in this matter should not be restricted by any kind of mere statutory prohibitions. In their indefiniteness and the consequent all-comprehensiveness these ‘special responsibilities’ are like the ‘due process’ clause in the American Constitution. The net result of their presence in the provincial system is the abolition of Diarchy in favour of a unitary government under the sole control of the Governor.

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Within the short space of an article it is not possible to deal with the other aspects of the Report. Credit is given to it for its recognition of the principle of ‘central responsibility.’ But here again it is the mere shadow of responsibility that is granted to the Ministers. Defence and External Affairs are a reserved subject under the direct control of the Governor-General and remain outside the ministerial sphere. The Report does not hold out any hopes of the early Indianisation of the army, and in its absence there is no prospect of the transfer of these departments in any conceivable future into the hands of Ministers. The special responsibility of the Governor-General for the safeguarding of the financial stability and credit of the Federation, gives him complete and effective control over the finances of the country and consequently over all the transferred departments. Every one is aware of the dependence to which the transferred departments in the provinces were reduced to the reserved departments in consequence of Finance having been made a reserved subject. The Reserve Bank is the custodian of India’s banking and currency system which the Ministers cannot touch. Railway policy and rates are to be controlled by the Statutory Railway Board over which the Ministers have no control. The industrialisation of the country which all the well-wishers of the land have been looking to, and which can be carried out only through a policy of protection, has been made impossible owing to the ‘prevention of commercial discrimination’ having been included among the special responsibilities of the Governor-General. This gives him an all-over riding authority on tariff legislation. An impossible task is imposed on the Ministers whenever they wish to alter the tariff policy. They should be able to prove that the alteration will promote the economic interests of India and not merely injure the interests of the United Kingdom. No economist, however painstaking he may be in collecting and analysing all the available data, can succeed in this. A policy of protection is sure to injure the interests of England; there, is no guarantee that it will promote the interests of India. The latter is only a probability; the former is a matter of certainty. In such a situation the Ministers cannot be said to have any responsibility in industrial and commercial matters. Even when a trade agreement with a third party is more advantageous to India than a similar agreement with England, the Report lays down that regard must be paid to the general range of benefits secured by the partnership with England and not merely to the usefulness of the partnership in relation to the particular commodity under consideration at the moment. Who will have the boldness to deny that India is not in general benefited by her partnership with England–whatever that partnership may mean?

In the light of the recommendation for the separation of Burma, one should be thankful to the Committee for not recommending the separation of any other part of India and placing it under the direct control of the Home Government. The agitation set up for a province of Pakstan made up of the Punjab, Sind, North-West Frontier, Baluchistan ‘etc., to be constituted into an entirely separate territory might have been taken advantage of for such a purpose. As much support could have been obtained for such a scheme from a certain section of Indians as for the other recommendations in the Report. It is therefore a matter for gratitude that the boundaries of India have been kept intact except for the separation of Burma. An All-India Federation is one of the promises held out by the Report, although it is not known when it will be achieved.

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There has been a good deal of comment on safeguards. Properly understood, the essence of a constitution is the safeguards it embodies. No one need be frightened by the term. Written constitutions have come into vogue because of the distrust entertained about the way in which political power would be exercised. In every age and in all countries the tendency has been for these in power to abuse their authority, sometimes consciously and at other times unconsciously. They have also a tendency to regard what is good for them as being necessarily good for all. The provisions in a constitution act as a check against such misuse of authority. The incorporation of a list of fundamental rights, universal franchise, separation of powers, judicial independence etc., have been traditionally regarded as some of the necessary safeguards. What is however to be noted is that the actual safeguards that are included in any particular constitution depend on those parties and groups that obtain a hand in the making of that constitution. In the making of the proposed Indian Constitution the dominant hand is that of the British, although they had a band of faithful allies in the Indian Princes and the communalists. The safeguards therefore that it contains are safeguards which the British have found necessary to prevent any abuse of authority by the Indian executives and the Indian legislatures, supplemented by a few others in the interests of the Princes, the communalists, and those sections of Indians who, like the Zamindars, have acquired certain vested interests. It is therefore wrong to assume that the new constitution has no fundamental rights included in it. All these safeguards are the fundamental rights which the makers of the constitution thought it essential to provide for. It may be that, from the point of view of nationalist opinion in India, there is even greater need for safeguards against the abuse of power by the British and very little has been done to include them in the constitution. This is the tragedy of the whole affair, though there is no mystery about it. The struggle in India is between nationalism and the ideals of general welfare on one side, and communalism and vested interests on the other. For the moment nationalism has suffered a severe defeat, and it is this defeat that is registered and recorded in the Report of the Joint Parliamentary Committee and the constitution that it has recommended.

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