Is India Sovereign?

Mr. Nath Pai’s Bill seeks to restore to the Indian Parliament the power to abridge the Fundamental Rights guaranteed in the present Indian Constitution. The power was denied by the majority judgment of the Supreme Court of India in the Golaknath case. Such restoration, said the judgment, was possible if and when the court itself reversed its present judgment or by a new Constituent Assembly. The latter suggestion raises several constitutional conundrums, which are not only of academic interest but are fraught with serious practical consequences.

Who is the authority in India that can convoke a new Constituent Assembly without the prospect of judicial review and possible judicial veto? If the Indian Parliament under the present Constitution should call it, it can do so only by enacting a law. That law is, however, subject to judicial review and is bound to be vetoed by the court since its object is to over-ride the judgment of the court. If, then, the Indian Parliament under the present Constitution cannot call a new Constituent Assembly, who can? It has been said that the constituent power vests in the sovereign people of India and they can convoke a new Constituent Assembly, even as it was claimed that they convoked the first Constituent Assembly in 1946. But was it true?

The Preamble of the current Constitution of India said that the People of India had resolved to constitute India into a Sovereign Republic and had enacted the Constitution in the Constituent Assembly. Was this claim based on constitutional facts or on political rhetoric?

The Indian Constituent Assembly met for the first time on December 9, 1946. It was not called into being by the people of India by virtue of their sovereign authority but by the British Governor General in accordance with, and subject to, the statement of the British Cabinet Mission. The Assembly had no more constitutional or sovereign status than, say, the Indian Round Table Conference called by the British Government in 1930-’32. In moving the Resolution on “Alms and objects” on December 13, 1946, Pandit Jawaharlal Nehru, then Prime Minister of India, said:

“You all know that this Constituent Assembly is not what many of us wished it to be. It had come into being under peculiar conditions, and the British Government had a hand in its birth. They have attached to it certain conditions. We accepted the State Paper, which may be called the foundation of this Assembly.”

Mr. N. Gopalaswami Aiyangar sought to claim “sovereignty” to the Assembly in “residuary” matters which were not covered by the limitations imposed by the Cabinet Mission. But, Sir Alladl Krishnaswami Iyer was not impressed by the argument. He said on December 19, 1946, that, though the Cabinet Mission Statement was not statutory, it was not open to the Constituent Assembly to deviate from its main principles. Prime Minister Nehru clinched the matter finally on April 28, 1947, when he admitted that the Constituent Assembly had accepted the Cabinet Mission Statement of May 16, 1946 and was functioning in accordance with it, and there the matter ended. He added:

“We rather doubted the authority of the Constituent Assembly to deal with all manner of matters, that is to say, the Constituent Assembly, as it is constituted at present.”

The Constituent Assembly was not free even to give its own interpretation to the Cabinet Mission Statement regarding “grouping.” Nehru did not claim that the Assembly was “sovereign.” Though it was not limited by an Act of the British Parliament, it was limited by British Cabinet Mission Plan.

The Indian Independence Act was passed by the British Parliament and received the Royal Assent on July 18, 1947. Dr. K. M. Mushi claimed on July 14, 1947, that the limitations imposed on the Constituent Assembly by the Cabinet Mission had been removed. But simultaneously the Constituent Assembly became a statutory body, governed by the Indian Independence Act of the British Parliament. If, before the Act, the Assembly was based upon, and limited by, the Cabinet Mission, after the Act it was based upon, and limited by, the Act. Both of them were made by “sovereign” Britain and not by India.

The Constituent Assembly appointed the Mavlankar Committee to report on the “Functions of the Constituent Assembly under the Indian Independence Act.” Even as late as November 4, 1947, nearly a year after the Assembly commenced its deliberations. President Rajendra Prasad doubted if the Assembly was competent to pass a law for adult franchise.

Further, Lord Mountbatten, as Governor-General subordinate to the British Cabinet and Parliament, ordered, without reference to the Constituent Assembly, some fresh elections to the Assembly in consequence of the partition of India. Even the partition was effected without the formal cognisance and consent of the Constituent Assembly.

On July 25, 1947, Mr. Sri Prakasa questioned the constitutional propriety of the whole affair. Pandit Nehru admitted the charge and secured the appointment of a committee of very eminent constitutional lawyers to evolve a method to validate the impropriety and sustain the claim to sovereignty of the Assembly, as suggested by Mr. Sri Prakasa. But the Committee never reported, since the British Parliament, by a clause in the Indian Independence Act, validated all the actions of the British Governor-General retrospectively.

If the Indian Constituent Assembly had been convoked by the people of India by virtue of their sovereignty, the British Government would have had no constitutional part in its convocation composition and functions even as it had no part in the convocation, composition and functions of Constituent Assemblies in, say, America or France.

The Indian Independence Act conferred Dominion Status on India and not “sovereignty”, if only because no sovereign state, by an Act of its legislature, can confer sovereignty on another state, since it is constitutionally competent to repeal its own enactments. The sovereign State can, by a policy of political self-restraint, refrain from interfering with the policies of the constitutionally subordinate and non-sovereign State, as even Britain does not interfere with the doings of the Dominions. The latter have political autonomy, but not constitutional sovereignty, on a par with Britain. Similarly, India has political autonomy as the other Dominions and Britain, but has not constitutional sovereignty as Britain.

It may be recalled that, when Mr. Gopala Krishna Gokhale was once challenged if there was any instance of a subject country attaining freedom by constitutional action, he had said that the last chapter of constitutional developments had not yet been written, and that it might be given to India to write a new chapter by attaining her political freedom by constitutional means. His hope has been realised. India won her freedom constitutionally by an Act of the British Parliament, and not after snapping her constitutional relation with Britain as America had done.

In the whole Commonwealth Britain alone is constitutionally sovereign, while all its members, including Britain and India, have equal political autonomy. There is thus no sovereign authority in India which can constitutionally convoke a new Constituent Assembly to make a new Constitution, even as Mr. Ian Smith has no constitutional power to claim unilaterally that his Rhodesia is sovereign. Even Britain cannot confer sovereignty on Rhodesia, but only Dominion Status.

India need not regret inability to attain constitutional sovereignty, for Dominion Status, which she has attained, gives her all the political autonomy which even Britain has. It may be recalled that in 1929 Pandit Nehru swore that India would quit the Commonwealth. On Jan. 20, Dr. S. Radhakrishnan said in the Constituent Assembly on the Resolution of “Alms and objects”:

“This Resolution on the objectives does not wish to disappoint Mr. Churchill. It tells him that the expected is happening. You give us the choice to get out of the British Commonwealth. We are electing to go out of the British Commonwealth.”

Pandit Nehru was even more emphatic. Speaking on the same resolution in the Constituent Assembly on Jan. 22, 1948, he said:

“This Resolution means that we are completely free and are not included in any group except the United Nations, which is being formed in the world…..India must sever her connection with Great Britain because that connection had become an emblem of British domination.”

Neverthless, Mr. Nehru decided that India should stay in the Commonwealth as an equal member with the others. He went further and acknowledged the British Sovereign as the Head of the Commonwealth, which meant that the President of India as the Head of the member State has a status lower than that of the British Sovereign, the Head of the Commonwealth. He even invited Lord Mountbatten to be the first constitutional Governor-General of India. These developments were more mature signs of international co-operation within the smaller and more effective association than the United Nations, in spite of conflicts which are not unknown to closer families. Mrs. Indira Gandhi, the present Prime Minister of India, has done wisely in rejecting the pressure to quit the Commonwealth and in adhering to it as her father had done.