The other side of freedom: India’s constitutional lawyers and the making of a nation

Independence Day inevitably reminds us of the freedom fighters who dedicated their productive years, if not their lives, to liberating India from British rule. Popular narratives about the freedom movement often focus on the attainment of freedom itself, while the question of the form of government is relegated to the background. It is taken for granted, as if India had been a parliamentary democracy anyway. But it is obvious that this is not a rational proposition.

The uprising of 1857 might have ousted the British, but it was not based on the principles of liberal democracy. This was not only because the uprising took place in the mid-19th century.^th It was not only a nascent movement in the 18th century, when democracy itself was still nascent in Britain, but also because it was detached from the political ideas being developed in Calcutta, Bombay and Madras in the 1850s. It was far removed from the British Indian Association (est. 1851), the Bombay Association (est. 1852) and the Madras Native Association (est. 1852). Thus, the uprising of 1857 lacked the political ideas that influenced the American War of Independence (1775-83) and the French Revolution (1789-99).

It was the forerunners and pioneers of the freedom movement who invested intellectual capital in the struggle. They were known as reformists, moderates or liberals in different eras and can be categorised as constitutionalists who advocated political reforms aimed at a more representative and progressive government in British India. This intellectual culture prevented India's freedom movement from becoming a mere crude power struggle. They formed organisations like the British Indian Association, the Indian Association, the Bombay Association and the Poona Sarvajanik Sabha, which eventually led to the formation of the Indian National Congress (est. 1885). Even the Congress, which was not an organisation initially but an annual event, was dominated by these constitutionalists for a long time.

Some of them, including Dadabhai Naoroji, Justice MG Ranade, Pherozeshah M. Mehta, Gopal Krishna Gokhale, Surendranath Banerjea, WC Bonnerji, Badruddin Tyabji and Pandit Madan Mohan Malaviya, are remembered as moderates, particularly in connection with the dispute between extremists and moderates within the Congress. They were unsuccessfully challenged by the extremists led by Lokamanya Tilak in Surat in 1907. The extremists were expelled and their challenge diminished after the imprisonment of Tilak and the departure of Aurobindo Ghose.

The moderates led by Surendranath Banerjea split from the Gandhian Congress in 1917. Their subsequent history under the name of Indian Liberal Party (1923), which also included politicians like Tej Bahadur Sapru, CY Chintamani, CH Setalvad and HN Kunzru, is less prominent as they were often dismissed as stooges of the British, although they boycotted the Simon Commission (1928) and made serious efforts for political reforms in India. By this time, however, constitutionalism had long ceased to be the property of a clique and had become the mainstream of Indian politics. Thus, Moti Lal Nehru and Sir Chettur Sankaran Nair, although not members of the Liberal Party, could be called constitutionalists. par excellenceWhile one drafted the Nehru Report, the other drafted the Central Committee Report, thus offering an alternative to the Simon Commission.

II

Why did British rule encourage the development of constitutionalism? First, the East India Company introduced a new form of government in India – impersonal government. The Company's rule was exercised by a corporation rather than an individual such as a Maharaja or Nawab. The Regulating Act of 1773 created the position of Governor-General who had to take decisions by a majority of an executive council. The same method was applied to the Governors of the Madras and Bombay Presidencies. They were all paid servants of the Company who received a monthly salary, served a limited term of office and exercised limited powers.

In the late 18th century, Indians had great difficulty in dealing with an impersonal government. They invented an imaginary personality that Bahadur Company. They were not entirely wrong, for a company is in fact a legal person in modern jurisprudence, capable of suing and being sued in its own name. The British evidently concluded that the rebellion of 1857 was due to the fact that a company could not command the loyalty of the Indian people as a monarch could. Sir Syed Ahmed Khan wrote in his The causes of the Indian uprising (1873) attributes the revolt in part to the inadequate and infrequent number of durbars held by the governors-general, which led to a decline in loyalty in a country accustomed to the grandeur and ceremonial of rulers. Durbars (Page 45).

That the British saw this psychological disconnection (from an impersonal government) as a factor in the outbreak of the 1857 rebellion is amply demonstrated by the fact that Queen Victoria appeared in India in 1858 with the proclamation of Queen. She was later elevated to the strange status of “Queen-Empress” by Benjamin Disraeli's government in 1876. Subsequently, three Durbars were held during British rule – in 1877, 1903 and 1911. The intention was to show Indians that their ruler was a real person who lived and breathed and had a family. The ruler was not merely a collective entity like the bureaucracy – a two-headed demon with the Secretary of State based in London and the Governor-General based in Calcutta and Simla, both holding office for limited terms at the pleasure of the monarch.

Chapter Three

While the lay people might have found impersonal government strange, it was like a fish in water for the more advanced sections of society. They generally represented the emerging educated class in England. They realised that for the first time, one could criticise a government without being branded an enemy. They had a voice and could express their opinions without fear of prosecution (unless they called for the abolition of British rule). The Constitutionalists were fascinated by the English institution of the House of Commons.

Raja Ram Mohan Roy (1772-1833), though strangely despised by many nationalists today, could be considered the founder of the constitutional movement in India. He attended the House of Commons when that chamber of the British Parliament was debating the Representation of the People Bill of 1831. The first prominent constitutional lawyer, however, was the father figure of the moderates, Dadabhai Naoroji. He began as a professor of mathematics at Elphinstone College, Bombay, and reached his peak when he became a member of the British Parliament in 1893. Before that, he had been President of the Calcutta Congress in 1886. Dadabhai, a mathematician by profession, made statistics an integral part of political discourse. Some of his essays in Poverty and un-British rule in India (1901) read like dissertations in applied economics. His famous theory of the “drain of wealth” remains a popular argument against British colonialism in India.

Constitutional lawyers laid great emphasis on the study of facts and figures from government documents and other sources. Justice Mahadev Govind Ranade (1842-1901), the brain behind the Poona Sarvajanik Sabha, was Gopal Krishna Gokhale's (1866-1915) mentor as a young man. TK Shahani (1919) in an early biography of Gokhale tells how strict Ranade was. Gokhale was instructed to study the Blue, Green and Red Books issued by the government from time to time; cumbersome statistics, masses of evidence, voluminous correspondence, various statements and commentaries on proceedings from different sources (Gopal Krishna Gokhale: A Historical Biography, p. 59). It is no wonder, then, that Gokhale rose to become one of the master speakers in the Imperial Legislative Council and that his speeches on the annual budget were able to put the Viceroy, Lord Curzon, on the defensive.

Surendranath Banerjea (1848-1925), formerly of the Indian Civil Service, was not an economist. His trademark was his advocacy for introducing an elective element in the Legislative Councils to make them more representative of the people. A co-founder of the Indian Association (est. 1876), he rose to prominence when he coordinated a national agitation in 1877 against the lowering of the minimum age for candidates to the Indian Civil Service. This unpopular decision of Her Majesty's Government had a negative impact on the prospects of candidates from India. Long before Shashi Tharoor, he was the first Indian to win a debate at the Oxford Union (1890), where he defeated Lord Hugh Cecil with a speech calling for the replacement of nomination by elections as the principle for filling the Legislative Councils.

Lawyer Pherozeshah M. Mehta (1845–1915) emphasized the responsibility of local government based on the electoral principle, simultaneous examinations for the ICS in Britain and India, and the separation of judicial and executive functions in government.

In independent India, a less than favorable opinion developed of these constitutionalists. Their methods of prayer, petition and appeal were considered subservient and totally inadequate to the cause of freedom. We tend to overemphasize “freedom,” the expropriation of British sovereignty, when the freedom movement was much more than just the acquisition of sovereign power. We often pay little attention to the substance of freedom, such as the form and policy of government. The constitutionalists were masters of economics, law and ideas of representative government. They made us aware that in law every sentence was important and every word counted. They schooled us in parliamentary democracy long before India became a full-fledged democracy.

It was not until the Lahore Congress in 1929 that the demand for Purna Swaraj (complete independence) was officially decided. However, constitutional lawyers stressed the ideal of self-government (Swaraj was first used by Dadabhai Naoroji on the Congress platform in 1906) and dominion status, which would have made India comparable to self-governing British dominions such as Australia, New Zealand or Canada.

The constitutionalists abhorred the dramatic moments generally associated with revolutions and believed in the development of the real political content of an independent nation. They were guided by reason rather than passion and were in fact astute critics of British policy. The idea that they submitted to British rule is only partially true. They realised that the matrix of rule offered a way of enforcing Indian claims which was not possible under the personal rule of a potentate. Without their promotion of the ideas of constitutionalism, India's freedom movement could not have found its way into the constitution.

The writer is the author of the book 'The Microphone Men: How Orators Created a Modern India' (2019) and an independent researcher based in New Delhi. The views contained herein are his personal. The views expressed in the above article are personal and solely those of the author. They do not necessarily reflect the views of News18.