Republic Day commemorates January 26, 1950, the day when India became a constitutional democratic republic. A history of that moment would trace how contact with the British introduced constitutionalism into Indian public life from the late eighteen century onward. It would show how the East India Act of 1773, the Charter Act of 1833 and then the Government of India Act of 1858 produced a “Constitution” that governed British India. It would then observe how subsequent revisions of this “Constitution” via the Government of India Acts of 1919 and 1935 laid the foundation for the Constitution of India in 1949.
What this story would miss, however, is that long before 1949, there was on the table another constitution for another India. This constitution was drafted in March 1874. It was the product not of British India, but of Indian India – as the Princely States were termed. This fact will startle those who assume that the Princely States were exemplars of an unrelenting absolutism. But the reality is that it was in the Princely States that Indians had the chance to exercise a modest degree of self-government, which is why the first constitution drafted in modern India emerged there.
In December 1870, Khande Rao Gaekwad, the ruler of Baroda, died.
After briefly wringing their hands, the British sent for Malhar Rao, brother of the recently deceased ruler. They knew where to find him, Malhar Rao having long been incarcerated by Khande Rao for attempting regicide. Upon ascending to the gaddi, Malhar Rao wasted little time settling scores, imprisoning and then poisoning the principal officers of the previous regime.
The “depraved voluptuousness” only too typical of Princely States followed. The Gaekwad abducted married women to make them laundis (slaves) in his palace and permitted his vahivatdars (revenue collectors) to torture ryot (tenants) to deliver up rents. The administration, headed by his brother-in-law, Nana Khanvelkar, was predicated on nazaranas (tributes) and arbitrary taxes that had more in common with extortion. The Treasury, meanwhile, was made to bear the Maharaja’s ruinous expenditure on mistresses, astrologers, animal fights, jewellery, and even cannons cast in gold.
Malhar Rao’s fortune took a turn for the worse in March 1873 when Robert Phayre took over as Resident in Baroda. Possessing “more zeal than discretion”, Phayre began inundating his superiors with lengthy missives detailing Malhar Rao’s “career of crime”, including a particularly vivid account of that year’s Holi celebration, which apparently involved the Maharaja and his companions spraying colored water on prostitutes forced to participate while dressed in sheer clothing.
Not trusting Phayre’s increasingly manic dispatches, the Viceroy, Lord Northbrook, deputed Richard Meade, the most respected political officer of the era, to investigate. The Baroda Commission, headed by Meade, published its report in February 1874. It agreed with Phayre that Baroda was suffering from “general maladministration of a character urgently calling for reformation”. But it rejected his recommendation that Bombay ought to “resume the reins” in Baroda.
In its view, the introduction of “a few carefully selected men who have already received an adequate training in the British public services” would bring about “a more satisfactory state without entailing a minute and vexatious interference”.
The Commission’s recommendation did not sit well with Bombay, which oversaw Baroda. Two members of its Legislative Council – Henry Tucker and Alexander Rogers – placed striking dissents on record.
Tucker, a judge of the Bombay High Court, argued that since Malhar Rao had shown himself to be incorrigible, the Commission’s proposal would prove “inefficacious unless some limitation is placed on the arbitrary power of the Maharaja”. Hence, Calcutta ought, he said, to “force the Maharaja to give to his subjects a written constitution”. This might seem a “strange and inadmissible proposition”, Tucker conceded, but on “broaching the subject to an eminent Native administrator, who has successively held office in two large Native States in different parts of India” he had learnt that his interlocutor had come to the same conclusion “long ago”.
To wit, Tucker shared with Calcutta a “scheme of constitution” drawn up by “this gentleman who does not wish his name to be made public at present”. Though his interlocutor “had but little time” to outline his ideas, the draft was “so able and creditable”, Tucker said, that it deserved Calcutta’s careful attention.
Rogers, a long-serving Bombay civil servant, concurred with Tucker. The Commission’s proposal was, he argued, a “mere palliative” that would prove “practically useless”. To “effect any permanent good” Native States had to be relieved from “despotic rule, dependent on the character and disposition of a single man” and instead made “in some measure constitutional”. Such change was “feasible”, he insisted, adding that “he had been shown the draft of a Constitution drawn up by an eminent Native Statesman of great experience”, which he believed “with a few modifications” would work admirably.
Aware that his actions were being “jealously watched by all Native Rulers in India”, Northbrook deemed Tucker and Roger’s proposal to “go far beyond” what was “justifiable to adopt”. He instead decided to give Malhar Rao one more chance to reform. The Viceroy had some reason for optimism: panicked by the turn of events, the Gaekwad had appointed Dadabhai Naoroji the Acting Dewan in December 1873.
Northbrook’s hopes were soon dashed, however. Undercut by the darbaris (courtiers) surrounding Malhar Rao, Naoroji made little headway and resigned in disgust in December 1874. Later that same month emerged evidence linking Malhar Rao to an attempt to poison Phayre, prompting Northbrook to suspend the Gaekwad while a Commission investigated. A hung verdict followed, but Malhar Rao was nonetheless deposed in April 1875 on grounds of gross misgovernment.
So, who was this “gentleman” who did “not wish his name to be made public”?
His name was Sir Tanjore Madhava Rao, then the Dewan of Indore. Born in 1828 in Kumbakonam, Rao was among the first graduates of Madras High School, the precursor to Presidency College. Renowned for his mathematical skills, Rao was inducted into the Madras Accountant General’s office in 1846. He did not remain a clerk for long though. In 1849 the ruler of Travancore, Uttaram Tirunal, was persuaded to provide his nephews and heirs – Ayilyam Tirunal and Vishakham Tirunal – with a “good English education”. When the Resident, William Cullen, wrote to Madras for recommendations, the University Board promptly offered up Rao’s name.
Lauded for his probity and intellect, and valued for his English oratory and writing, Rao shot up the ranks in Travancore. In less than a decade he progressed from tutor to Deputy Peishcar (Magistrate) to Dewan Peishcar (Divisional Magistrate) until he became, at the age of thirty, the Dewan (Prime Minister) in December 1857.
Over the next fourteen years, with Ayilyam now the Maharaja, Rao enacted a stunning series of reforms that transformed Travancore into a “Model State” and made his name familiar to the good and the great. From the verge of bankruptcy in 1857, Travancore emerged by 1871 as one of the most prosperous parts of India, brimming with trade and industry, owing to hundreds of carefully calibrated public investments in everything from canals and bridges to schools and dispensaries.
A simple statistic captures the scale of the change: prior to 1860, Travancore’s principal road was a poorly maintained 50-mile-long road. By 1871, it had nearly a thousand miles of roadways. Little wonder, then, that when a prominent Anglo-Indian official wrote to John Stuart Mill in 1866 with news of Rao’s knighthood, the latter responded that he was “not a stranger to Rao’s meritorious career”.
Though feted in Calcutta and London as “the highest development of the Hindoo intellect”, Rao’s position in Travancore became increasingly perilous with the passage of time.
His policies, which included radical land reform, the introduction of modern education for boys and girls alike, and his refusal to sanction caste discrimination and extravagant religious ceremonies, earned him powerful enemies. For a period, Rao’s achievements and fame, and Madras’ paternal gaze, protected him from reprisals. Then suddenly it was all over. In December 1870 Rao followed up a little too vigorously on a case of embezzlement in the Treasury. The inquiry exposed one of Ayilyam’s favorites, leading the humiliated Maharaja to threaten abdication if Madras did not sanction Rao’s dismissal, which eventually followed in February 1872.
It did not take Rao long to find his feet. Francis Napier, the Acting Viceroy, promptly offered Rao a coveted seat on the Viceregal Council. To the amazement of his contemporaries, Rao declined the offer, uninterested in what was then a merely symbolic appointment. He requested Napier to consider him instead for a position in Mysore where he might help prepare the State for its impending return to native rule.
Rao had a very particular idea in mind.
A few months prior, the recently retired Chief Commissioner of Mysore, Lewin Bowring, had published his memoir, Eastern Experiences. In it, Bowring observed that those “who sympathise most with Native States, and who have seen how they are administered, are conscious of the great risk to which their stability is subjected by idle or headstrong rulers seeking to set aside all law, and to act on the impulse of the moment”.
Rao’s ears pricked up when he read Bowring’s proposed remedy. Though the Maharaja of Mysore must of course be “highly educated”, Bowring advised, it was no less essential that he “should be guided by the law, and by a fixed system”, the key feature being that “there shall be a written law, which judges and other functionaries shall not be at liberty to set aside, and that even the Raja shall be bound by it”.
This proposal was not original to Bowring. It originated with Evans Bell, a retired British officer and prominent advocate for Princely States, who had vigorously argued in favor restoring Mysore to its hereditary rulers, the Wadiyars. That the Princely States were capable of constitutional government was borne out, Bell argued, by the revolutionary measures enacted in…Travancore. As Bell put it in The Mysore Reversion, which was published in 1865:
It is the complete separation of judicial and executive functions, the promulgation of a Code, and the limitation of the Prince’s power over the public revenue – all of which have been established in Travancore—that tend to transform an Asiatic despotism into a constitutional monarchy.
Knowing only too well that Englishmen only counted as knowledge what Englishmen declared to be so, when Rao wrote to Napier in March 1872 to decline the seat on the Viceregal Council, he appended the relevant sections from Bowring’s Eastern Experiences, adding that nothing could be more interesting than participating in the development of “something like a constitution” wherein “a Native Administration” might be brought under “a system of fundamental principles, derived from the advanced political wisdom of Europe” albeit “carefully adapted to the conditions of the Native society”.
Such a constitution, Rao declared, would permit a Native State a “healthy existence” that “combined regard to the dignity of its Sovereign and the happiness of its numerous subjects”. “Indeed, a model Native Government in every sense of the phrase could be founded”, he enthused, which “might operate in the character of an example to all other Native States in India”.
Napier eventually forwarded Rao’s letter to Lord Northbrook, who took over as Viceroy in May 1872. Entirely unwilling to consider such a radical step, Northbrook quietly let the matter drop. Taking the hint, Rao accepted Maharaja Tukoji Holkar’s offer to become Dewan of Indore and moved up country. And that might have been the end of it – had it not been for Malhar Rao in Baroda whose indiscretions gave Rao an unexpected opportunity to put his thoughts on paper.
What did Rao propose? The Dewan claimed that, owing to the suddenness of Tucker’s request, and the exigencies of his position, he could only offer “a mere outline”. As he wrote in a preface to Tucker:
Though deriving assistance from notes I made some years since, I have been writing this under extreme pressure for time…All I profess to do is to put forth a sketch.
In fact, with his unmatched and ultimately bitter experience, Rao understood better than anyone else why the Princely States needed a constitution, and what such a document ought to say. Per the Queen’s Proclamation in 1858, British India had undertaken not to annex Princely States. But this policy left British India facing an awkward problem: how to deal with Princely States experiencing “gross maladministration”?
Rao opposed returning to the ways of Lord Dalhousie, that avid consumer of Native States. In his view, “the remedy of annexation” was “much like cutting the throat as a remedy for cough”. Nor would imposing British officers help, as this would constitute “annexation in effect, though not in name”. There was only one option. “If I may venture to submit a reply”, Rao wrote to Tucker, “I would say that the British Government should prescribe a body of fundamental principles for the guidance of the Native State – in short, a constitution or plan of Government, which the Prince should be bound to conform to on pain of his being set aside in favour of his next heir”.
To this end Rao then laid out – in a numerical list, his favoured style – the relevant fundamental principles. The draft, which is appended below, had four especially noteworthy features. First, it sought responsible administration with decision-making to proceed in an orderly fashion under public servants led by a Dewan who could only be dismissed upon a showing of impropriety. Second, it sought the rule of law by requiring British India to concur in the appointment of well-qualified judges enjoying high pay and life terms, subject to checks against conflicts of interest. Third, it sought to impart a public character to the State, for instance by compelling the Maharaja to fund personal expenses from a privy purse and by eliminating opportunities for favoritism. Finally, it recognised that human frailty would lead Maharajas astray. Thus, Rao’s draft made British India the backstop – Calcutta’s concurrence being required before a Maharaja could amend the constitution’s provisions.
As an eminently practical man, Rao was under no illusion that his proposal could be affected “at one stroke”. What was crucial, he thought, was to establish “a standard” toward which reform in the Princely States might be directed.
The British, he urged, ought not to see the proposed standard as unsuited to Indian conditions. Though the fundamental principles he advocated drew much from American and especially British constitutional practice, these principles were, Rao argued, of “universal applicability”, because they were founded “in reason and practical experience”.
Besides, there was no alternative to adopting such “salutary restraint”, he stressed, for “if unqualified personal and arbitrary rule” were to continue in the Princely States, “they must inevitably collapse one after another, the event being only a question of time”. Hence, the British ought not to worry that imposing a constitution would violate the Princely States’ sovereignty, Rao urged, the British would in fact be acting “in the best interest of these States themselves”.
Though Northbrook declined Rao’s advice in 1873, he did appoint him the Dewan of Baroda in 1875, following Malhar Rao’s dismissal. Sternly instructed by the Viceroy to focus on the kind of administrative and financial reforms for which he was well-known, the Dewan kept his peace. Then, toward the end of his time in Baroda, Rao tried his luck with Northbrook’s successor, Marquis Ripon. But when the Maharaja of Baroda, Sayaji Rao Gaekwad, made clear his opposition to any interference with his regal authority, Ripon’s officials quickly back tracked, leaving Rao to fend off the brickbats.
Rao’s proposal was championed, for a time, by prominent liberals based in British India.
The most vocal was Rao’s sometime protégé and collaborator, Mahadev Ranade, whose essay, “A Constitution for Native States”, which was published in the Quarterly Journal of the Poona Sarvajanik Sabha, generated much debate and discussion. It eventually prompted a series of remarkable works detailing indigenous forms of constitutionalism.
The most prominent of these works was Kashinath Telang and Ranade’s Rise of the Maratha Power, which carefully explained how much Shivaji’s success owed to the ‘constitutional’ nature of his rule (and concomitantly, how much Maratha decline owed to Shivaji’s descendants departing from such constitutional rule).
All this learned reflection made not one whit of difference. For the conservatives in the Princely States, there was nothing to debate. In their view, extinguishing the “arbitrary will” of the Maharaja would do away with precisely what was culturally and politically distinctive about a Princely State. As the Amrita Bazaar Patrika loudly complained when Rao’s desire to give Baroda a constitution became public knowledge – the subjects of Princely States “would prefer the sympathetic rule, though it might be despotic rule of the Prince, to the methodical but unsympathetic rule of a Dewan”.
The British were equally unmoved. Desperately worried about Russia and Turkey finding allies in the Princely States, they remained wholly unwilling to test the Indian aristocracy’s patience.
Starting with the 1892 Indian Council Acts, the British did, however, show a willingness to engage in constitutional reform in British India. In the event, the generation of liberal constitutionalists that followed Rao and Ranade, most notably Gopal Gokhale and Motilal Nehru, moved on to a greener pasture – the newly emerged Congress. The agitations that followed led to the 1909 Indian Councils Act (better known as the Minto-Morley Reforms) and then the 1919 Government of India Act (better known as the Montagu-Chelmsford Reforms). Left by the wayside, and eventually forgotten, was the first constitution drafted in modern India.
Rahul Sagar is Global Network Associate Professor of Political Science at NYU Abu Dhabi. He is completing a definitive biography of Raja Sir Tanjore Madhava Rao, the most celebrated Indian statesman of the nineteenth century.
The full text of the Constitution
CHARTER OR CONSTITUTION
1. The Maharaja as Sovereign is the highest authority in his dominions.
This requires no explanation.
2. The happiness of the people, as the foundation of the strength, durability, and happiness of the ruling Dynasty, shall be the paramount object of the Government of the country.
This may seem trite. Nevertheless, the full recognition of this important principle is of the highest use in Native States, where sovereigns are sometimes apt to forget if not controvert it. Hence, it is thus prominently laid down and, in a manner, to imply that the best interests of the Dynasty depend upon its faithful observance.
3. The Government of the country shall be carried on according to laws and customs, whether at present in force or established hereafter.
The object of this is obviously to do away with arbitrary Government altogether, and to induce the Government to conform its action to laws deliberately enacted and to customs established, in reference to public good alone.
4. A Darbar for making laws shall be organised, composed of men of wisdom, virtue, property, and patriotism, and such Darbar shall assist in the framing of useful laws from time to time and under rules to be hereafter laid down.
As the Government is to be carried on according to law, something like a properly constituted machinery for making laws becomes at once a necessity. I reserve the details as to the construction of this Darbar, only remarking at present that, without much difficulty, a body may be constituted which, though far from perfect, may be practically competent to frame useful laws.
The Prime Minister will, of course, have to preside in this Darbar.
The Darbar will be only a consultative body, and nothing framed by it can pass into law unless assented to by the Sovereign on the recommendation of the Dewan or Prime Minster after consultation with British Resident. Thus, no bad law can issue unless the Sovereign, the Dewan, the British Resident, and the Darbar all fail in their duty, a combination not likely to happen.
5. The laws in force at any time shall not be altered, modified, suspended, abolished, or in any way interfered with, except by other regularly enacted laws duly promulgated.
The object aimed at is the most important one of putting it out of the power of the Sovereign or the executive Government to interfere summarily or arbitrarily with the laws, by means of special orders, proclamations, &c., merely to suit a temporary or sinister purpose at the dictation of caprice, passion, or interest.
This provision is absolutely necessary to ensure Government according to law.
The student of the Political History of even England knows how important this provision is. I have framed this provision in reference to the following clause in the Bill of Rights or Declaration, delivered by English Lords and Commons to the Prince and Princess of Orange, 13th February 1688, namely, “that the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal.”
If such provision is required in England itself it is á fortiori[*] required in Oriental States, where there is a perpetual impatience of restraint and constant tendency to arbitrary rule.
The effect of this provision will be that no laws will suffer alteration &c., unless by means of laws. In short, a character of fixity will be imparted to all existing laws, and a guarantee established that they shall not be altered, or in any manner interfered with, except for a really good and approved purpose.
6. No law shall be passed except after the draft of it, together with a brief and clear statement of its objects and reasons, shall have been published in the Official Gazette for at least ___ months.
This is, of course, intended to prevent hasty or rash legislation, and to afford opportunity for the expression of public opinion.
This provision might be thought more properly to appertain to the rules and regulations which will have to be framed for the working of the Darbar for making laws. Still it forms so important a guarantee in behalf of public interest, that too much attention cannot be drawn to it thus inserting it prominently.
7. When however, public inquiry would not admit of this course, a law may be passed at once by the Sovereign under the advice of his Dewan, who will have duly consulted the British Resident. But such law shall not be valid for more than ___ months from the date of its promulgation, unless re-enacted in due course.
Occasions, through rare, may be easily conceived, in which such a power as that given by this provision will be needed. The law thus passed is either good or bad. If good, it will be certainly re-enacted; if bad, it will of itself cease to be law after a short period, if not rescinded earlier. The period allowed may suffice for considering necessary amendments.
8. No proposed law shall be submitted to the Sovereign by the Dewan for final approval, unless after due consultation with the British Resident.
The object of this is to secure the advantage of the wisdom and experience of the British Resident in the important work of legislation. It will be a great advantage. The Resident represents the friendly interest of the British Government, and may well give his advice in such matters. His objections to unsound legislation will generally carry weight with the responsible Prime Minister of the Prince. The effect, whether positive or negative, will prove very beneficial. I mean, it will lead to good or prevent evil.
9. The Sovereign shall act through his responsible Minister the Dewan, selected by himself with the approval, and not removable without the concurrence, of the British Government. And it shall be understood that in public affairs this is the only legal and valid mode in which the Sovereign gives expression to his will.
This embodies a most valued principle of the British Constitution. It is intended to prevent the direct action of the Crown without anyone being responsible for such action. It will prevent the vast amount of confusion and consequent irresponsibility usually arising in Native States from anyone issuing orders in the name of the Sovereign. It will fix responsibility on the Dewan, and will cut off the scope for many abuses which occur in Native States.
The Dewan’s office is the most important in Native States. On him much of the character of the administration depends. He ought, therefore, to be a properly qualified man in every respect. The approval of the British Government will secure this. This provision will prevent unworthy men getting hold of the helm. It will cut off many dangerous intrigues for power. If the Sovereign makes a really good nomination, the British Government will, of course, approve of it. The provision will, therefore, be a standing inducement on the part of the Sovereign to make a right choice of his Dewan.
Similarly, the Dewan ought not be removable without the concurrence of the British Government. His very position exposes him to the storms of faction. In the conscientious discharge of duty, he will, not unfrequently have to incur considerable though perhaps temporary, odium. Unless his tenure of office is secured by rendering it necessary to obtain the concurrence of the British Government for his removal, there will be constant changes of Dewans; there will be perpetual Court intrigues; there will be no steady attention to business; there will be every inducement for a servile subserviency on the part of the highest officer of the State. In such an important matter as a change of the first Minister, the Sovereign will always do well to consult the British Government, which can judge calmly and apart from local prejudices and passions.
The latter part of the provision under explanation implies that orders issued by the Sovereign, otherwise than through his responsible Minister, are illegal and invalid.
10. The Dewan shall be personally responsible if he refuses to take part in any act which he considers unadvisable or improper, without referring to the British Government for advice and instruction.
Without such a provision the Dewan cannot be held responsible in the manner contemplated, for he might plead that he was compelled to carry out the order of the Sovereign, though unadvisable or improper.[†]
11. The Dewan shall have free access to the British Resident, and may take his advice on all measures of importance.
As so much responsibility will be devolved on the Dewan, he will gladly avail himself of such a provision. The wisest Maharajah and the wisest Dewan might look for benefit from the advice of the British Resident. The more they are sincerely anxious for a good administration the more readily will they seek to consult with the Resident.
12. If any unlawful act is done, the agent instrumental in the doing of such act shall himself be fully responsible to the laws, and cannot plead as an excuse obedience to the orders of the Sovereign.
This is also a valuable principle of the British Constitution. It is absolutely necessary in the interests of the people, and also in the interests of the Sovereign personally. It is intended to deter any agent of the Sovereign from undertaking to carry out any unlawful order. It is also intended to give complete effect to the provision that the Sovereign shall act through his responsible Minster, the Dewan.
13. The Sovereign will not administer justice personally, as he has delegated this power to the constituted judiciary.
This, too, embodies an important principle of the British Constitution.
It would be obviously impossible for ordinary Sovereigns personally to administer justice. In Native States there is a perpetual desire, induced in the Sovereign by interested persons, to undertake personally a work which requires special qualifications, which a Sovereign is not expected to possess. The more a Sovereign yields to this desire, the more likely it is that justice would be perverted or sold. Even Frederick the Great of Prussia failed in such a work, and Frederick the Great is not a common character among the Native Princes.
14. The Sovereign shall not constitute any Special Court to administer special justice in any particular case, but may direct any already existing court to be strengthened by temporarily transferring to it any Judge or Judges of other Constituted Courts.
This is designed to prevent a Court being arbitrarily and specially constituted to secure a given result in any particular case. As such, the provision forms an important safeguard. It has its analogy in the English Bill of Rights.
15. The Sovereign shall in no case reverse the acquittal or enhance the sentence pronounced by a competent Court of Justice.
This is also absolutely necessary to protect the subject against the effects of anger, or malice, or vindictiveness, or at least ignorance, on the part of courtiers about the Sovereign.
The provision is also, I believe, comfortable to the British Constitution.
16. The Sovereign may, under the advice of his responsible Minister, mitigate any sentence, if proper grounds exist, by reducing it, or commuting it for any other.
And the Sovereign may, under similar advice, grant free pardons after trial, conviction, and sentence, in cases wherein error is patent or serious doubt has arisen about the correctness of the conviction.
These provisions again are derived from the British Constitution. The Sovereign ought to be able to exercise clemency, a highly popular virtue, within proper bounds. Even should he ever err in the exercise of those prerogatives, no great mischief is likely to occur. The Dewan will, of course, be responsible to prevent error as far as possible.
These provisions are designedly so worded as to cut off the power which is sometimes exercised by the Sovereign, of pardoning criminal convicts on joyful occasions, such as the coronation, the birth of an heir, recovery from serious illness, and so on. Such pardons cannot but produce a baneful effect on the community. It is impossible to see why an occasion of personal joy on the part of the Sovereign should bring about a suspension of just penal laws in particular instances.
According to these provisions the Sovereign cannot grant a pardon in anticipation of a trial and conviction so as to enable any accused person to plead the pardon as a bar to trial, &c.
This provision, however, is not intended to interfere with the power of granting pardons to approvers for securing evidence. A special law will, of course, regulate the granting of such pardons.
17. Every grant of pardon or mitigation of sentence, carried out under the foregoing provisions, shall be immediately notified in the Official Gazette, together with a brief and clear statement of the reasons which dictated it.
The object here is to enable public opinion to operate as a check against the abuse of the power of remitting or mitigating a judicial sentence.
18. No sentence of death shall be carried out unless after confirmation by the Sovereign under the advice of the responsible Dewan, who will consult the British Resident whenever he (the Dewan) finds difficulty in arriving at a definite conclusion himself.
Life is so sacred, and a deprivation of it constitutes such an irrevocable and irremediable punishment, that too much caution cannot be brought to bear in this direction. As the provision is framed, no one will forfeit his life unless the highest judicial tribunal, the Dewan and Sovereign, and in many cases the British Resident, all err together, which is an improbable contingency.
As the Dewan is fully responsible, he will readily and often avail himself of the latter part of the provision. In very clear cases he may not do so, but act on his own responsibility.
19. The Sovereign shall have a Civil List, fixed[‡] under the advice of the British Government, for the support and maintenance of his personal dignity and of his household; and all payments made on this account out of the public Treasury shall be faithfully shown in the Administration Report of the State which shall be framed and published by the Dewan every year.
This is intended to put an end to the unbounded license enjoyed in most Native States in the use of public funds. A fixed Civil List is manifestly one of the most essential requisites and characteristics of a well-ordered Government. The provision will bring about a useful separation between the private expenses of the Sovereign, and the public expenditure of the country. It will induce economy on the part of the Sovereign; it will facilitate the appropriation of the surplus revenue of the county for purposes of public utility. Where every rupee of the public revenue is looked upon as the private property of the Sovereign, extravagance must very often prevail, and useful outlays on public works must generally be grudged.
The latter part of the provision is necessary in view to give effect to the former. Expenses appertaining to the Civil List have a strong tendency to lurk under other heads, and this ought, by all means, to be prevented.
The opportunity has been taken to make the publication of the Annual Administration Report obligatory, as it will bring the whole administration under wholesome public criticism. An administration which has to be exposed to public view can seldom go far wrong.
20. The public revenues shall not be answerable for private debts incurred by the Sovereign or any member of the Royal Family.
Without such a provision as this, the fixity of the Civil List would be utterly a sham. This is too evident to require explanation.
21. No suit shall lie in any court against the Sovereign or any member of the Royal Family on account of private debts incurred by them.
This is necessary to exempt the Sovereign and members[§] of his family from the indignity of being put into Court for their private debts; and the effect will obviously be to deter money-lenders from lending money to such persons. There is nothing, however, to prevent them from discharging their debts as matters of honour and moral obligation. Indeed, it is to be hoped that no Royal Family will be so depraved as to repudiate a just debt, in consequence of the legal irresponsibility conferred by this provision. Moneylenders, however, will be quite aware of this legal irresponsibility and take the risk with their eyes fully open.
The provision under remark has, I believe, its analogy in several European Constitutions.
22. The Sovereign shall not make any permanent alienation of the land or other public revenues to any extent in favour of any private individual or any corporation unless under the sanction of a specific law regularly enacted and promulgated in due course.
This provision appears very necessary for the very preservation of the revenues. It will restrain undue liberality and ill-judged favouritism, so much prevalent in Native Courts. It will protect the Sovereign against constant importunities and intrigues, and thus make his position easy and comfortable.
Where, however, a grant is justified by the circumstances of any case, a law may without difficulty be passed, specially authorizing the Dewan to make a permanent alienation in a given case. Those who must be parties to the passing of the law may be expected to exercise due care and caution in regard to the public revenue while yielding to just claims.
The most important effect of this provision will be that grants by the Sovereign, such as are hereby interdicted, would, if ever made, be illegal and invalid and, as such, revocable by that Sovereign himself at a subsequent period, or by his successors; thus permanent evil will be prevented.
23. No public demand shall be remitted or suspended in part or whole, except on principles of public utility and general applicability.
The design of this is to prevent venality, favouritism, and inequality. The principle is very often violated in Native States in reference to personal or private influences.
24. The public revenues, or any surplus arising therefrom, shall not be applied to any but public purposes and the good of the country.
This provision is not rendered unnecessary by the fixation of the Civil List. The object is to prevent undue grants of the public revenue to purposes other than the good of the country. It is desirable, for instance, to deter grants, excessive grants, to foreign institutions, merely in compliance with a morbid desire for the reputation of liberality. The people who pay the taxes have an undoubted right to demand that their taxes be not appropriated for purposes which do not benefit them.
It is not intended to prohibit reasonable contributions to foreign institutions. In determining the Civil List, a fair margin should be allowed for such contributions, and then such contributions will be made personally by the Sovereign out of his Civil List. Such an arrangement will effectually check prodigality, detrimental to the interests of the State.
25. A reserve, equal to half a year’s revenue, shall be ordinarily maintained in the public treasury, so as to be readily available in periods of unexpected financial difficulties, such as those which are consequent on the failure of rains, &c. if the reserve be so availed of, the amount shall be replaced as soon as possible.
Native States cannot afford to incur public debts; they must never become insolvent; hence this precaution, which will ensure safety and ease. The reserve may be held invested in British Government securities, so as to obtain some interest for the State. The securities can, of course, be sold whenever cash is required.
26. The rights and liberties which are now enjoyed by the people under existing laws and customs shall continue unabridged to the utmost extent possible.
This provision is necessarily vague, it is intended to preserve unreduced whatever rights and liberties have heretofore been conceded. It will prevent backsliding.
27. Nothing shall be done affecting or likely to affect, the rights and liberties of the people except by means of regularly enacted laws duly promulgated.
The object in view here is to prevent the executive taking upon itself to issue proclamations, notification, or circular orders, calculated to interfere with the rights and liberties of the people. This provision, though difficult of being fully carried out, will act as a check.
A previous provision says that the laws in force at any time shall not be altered, &c., except by other regularly enacted laws. But it is to be remembered that the laws in force at any time may not have occupied all the ground which laws might occupy. There may thus be spare or unoccupied ground. What is here aimed at is to prevent the executive summarily occupying this spare ground, and to compel regular legislation where the occupation of this ground, or any part of it, may be desired.
But it is not intended by this provision to prevent the executive issuing notifications, &c. in conformity with existing laws and customs.
28. The taxation of the country might not be altered or interfered with, except by regularly enacted laws duly promulgated.
This is, strictly speaking, included in some of the previous provisions. Still, this matter is so extremely important that, rather than leave it to be inferred, express and prominent mention of it ought to be made in some shape like this.
The effect of this provision will be that no new taxes can be imposed, or old ones increased, or even reduced, without a new law, fully discussed in the Darbar. Great and effectual security will thus be, in a great measure, established against mal-administration in a matter deeply affecting the property and welfare of the people.
29. No loans shall be incurred by or for the State, except by regularly enacted law.
This provision is intended to fortify and give complete effect to the immediately preceding one. A little reflection will make this obvious.
30. No man’s property or services shall be taken or demanded for public exigencies without fair and adequate compensation.
This is a provision peculiarly fruitful of good in Native States.
I remember seeing a provision very like this, if not perhaps in these very words, in either the Constitution of the United States of America, or that of some of the States comprised in the Union.
31. All subjects shall have a right to hold public meetings peaceably, to discuss public matters freely, and to petition the Government for redress of grievances; and the writers and subscribers of such petition shall not be punishable for anything true, or in good faith believed to be true, that they may express in the petition.
This provision is the same in substance as that included in the English Declaration of Rights. In this celebrated document it is stated “that it is the right of the subjects to petition the king, and all commitments and prosecution for such petitioning are illegal.” The same is found embodied in the constitution of the United States of America, wherein it is provided that “Congress shall make no law… abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.” But it is needless to cite authority in support of a right which no civilized Government can think of refusing to a people whose welfare it really has at heart.
32. No person shall be taken, or imprisoned, or deprived of his estate, or exiled or condemned or deprived of life, liberty, or property, unless by due process of law.
This provision is of vital importance to ensure good government, and to exclude arbitrary proceedings so rife in most Native States. I have framed this by almost adopting the words of Kent, – vide page 623, vol. I., of his Commentaries on American Law.[**]
33. The right of deliverance from all unlawful imprisonment shall be ensured to the subject by such means as he may avail himself of freely, easily, cheaply, and expeditiously.
I mean, of course, that something analogous in effect to the English writ of Habeas Corpus shall be enacted for the protection of the subject against the infraction of the right which the English secured at Runnymede.
34. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
There is a certain degree of vagueness in the words “excessive,” “cruel,” and “unusual.” Still the sense intended is plain enough.
This provision is taken from the English Declaration of Rights, and I have adopted the very words used in the Constitution of the American Union—vide Kent, vol. I., page 675.[††]
It might be objected to this provision, – why have it, while the laws will lay down the limits of bail, fines, and punishments? The answer is not difficult. We are laying down fundamental principles for the Government of a Native State where there are scarcely regular laws. The fundamental principle embodied in this provision is to guide the framing of penal laws.
35. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This, again, is taken from the Constitution of the United States—vide Kent, vol. I., page 675.[‡‡]
The most arbitrary and sometimes intolerably vexatious searches are too often made in Native States. This broad provision will be a standing remembrancer both to the legislature and the executive.
36. No person in the county shall, at any time, or in any wise, be molested, punished, or called in question for any differences in opinion in matters of religion, who does not disturb, or is not likely to disturb the civil peace of the country.
This grand principle of religious toleration is expressed very nearly in the words used in the charters of some of the States comprising the great American Union—vide Kent, vol. I., page 658.[§§]
37. The public press shall be as free in the country as in British India.
This requires scarcely any explanation. One of the most potent checks on any Government will thus be permitted to act with full force. Public opinion, expressed in British India in a manner legally permissible, will thus find circulation in the territory of the Native State.
38. The right of the people to have the best qualified persons appointed to perform public duties shall be at all times fully and faithfully respected.
As a general rule, in Native States any man is thought fit to perform any function, including that of a judge. This provision is intended to keep constantly and prominently before the eye of the Prince the importance of selecting duly qualified persons for public appointments.
39. As a general rule, no public servant shall be removable “quamdiu bene se gesserint.”[***] This particularly applies to Judicial Officers.
This principle is, I believe in full force in British India. Judicial officers are specially protected by this principle in the British and American Constitutions.
This provision is not, of course, intended to operate in cases where the public servant is incapacitated by sickness or superannuation, nor in cases where he has been engaged on special contact for a specified term of years.
40. No Judge of the superior Courts shall be appointed or removed except by the Sovereign under the advice of the responsible minister, the Dewan, who will have duly consulted the British Resident.
It is of supreme importance to secure the uprightness and independence of good Judges, and hence this provision. In the generality of Native States, good Judges stand in need of special protection, as they often incur the enmity of the rich and influential in honest endeavours to protect the poor and uninfluential masses.
41. Every Judge shall solemnly bind himself to administer justice according to the laws and customs of the country and in conformity with the provisions herein laid down.
This hardly requires explanation or remark.
42. No Judge shall, privately or publicly, directly or indirectly hold any office, pension or allowance, or receive any remuneration, present, or gratuity from the Sovereign in addition to his proper salary as Judge.
This is an obviously useful and necessary restriction to secure the proper independence of the Judge, and is recognized as such in European systems. This restraining provision is very essential in Native States, where the practice of making special presents, &c. very largely prevails.
43. The judges of the several courts shall have ascertained salaries not subject to reduction at any time during their continuance in office. Nor shall the salary of a newly appointed judge be made lower than the usual rate in view to raise it by degrees to that rate.
This safeguard of judicial independence, originally found in the British Constitution, and improved by that of the American Union, is absolutely required in Native States.
The latter part, however, is my own. It is designed to prevent the evasion of the former part. The effect of the whole as it stands, is that the full appointed salary shall be given to the Judge when first appointed, and that it shall not be diminished during his incumbency.
This leaves it open to the State to raise the salary as a general measure whenever necessary. It likewise leaves it open to the State to reduce the salary at the time of appointment if the object is a permanent reduction. Thus, the influences adverse to judicial independence are minimized, while just liberty of action is reserved to the State.
44. Every law, proclamation, order, or custom which may be opposed to the provisions herein laid down shall be null and void, so far as it is opposed.
Without this special provision, this collection of fundamental principles would be useless. This provision will have both a prospective and retrospective effect.
45. The provisions herein laid down shall not be altered, modified, or set aside wholly or partially unless under the advice or with a concurrence of the Viceroy and Governor General of India in Council.
In the first place, it would never do to make these provisions so fixed and rigid as absolutely to shut out all future improvement according to times and circumstances and as the result of valuable experience to be gained hereafter. Hence this provision properly leaves the door open for future improvement.
In the next place, it would be equally undesirable to render alterations, &c. so easy as to lead to constant tampering with the fundamental rules which it is our aim to lay down.
Framed as this provision is, there is every reasonable guarantee against hasty or unwise meddling. If any alteration be really required, it will clearly set forth with all the advantages of local knowledge and information; and then it will be impartially judged by a central authority inaccessible to local passions and prejudices, and able to take large views. Besides, there is generally a great lawyer in the Viceroy’s Council, who is sure to give valuable advice in matters relating to constitutional law.
46. The provisions herein laid down shall be fully promulgated in the languages of the country, through the Official Gazette of the State.
I attach much importance to such publicity. Let every man in the country know and be familiar with the fundamental principles which guide the Government under which he lives. Let him know what his rights and liberties are and how they are secured. In every case of their infringement, let him by all means be in a position to quote the particular fundamental principle which has been infringed.
[*] A Latin phrase meaning “with greater reason”.
[†] In this provision I have adopted the words of a rule laid down by an eminent Political officer of the British Government.
[‡]It is not meant that it should be fixed and unalterable for all time. It may be fixed from time to time, so as to enable the Prince to duly share in the prosperity of his country as he is entitled to do.
[§] What members, will have to be defined with some care.
[**] James Kent, Commentaries on American Law, Boston: Little, Brown and Co, 10th edition, 1860, Vol. 1, p. 623. The original text reads: “It may be received as a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseised of his freehold, or liberties, or estate, or exiled or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers”.
[††] Kent, Commentaries on American Law, pp. 623, 675.
[‡‡] Kent, Commentaries on American Law, p. 675.
[§§] Kent, Commentaries on American Law, pp. 657-661.
[***] A Latin phrase meaning “as long as he behaves himself properly”.