Friday, January 25, 2013
India's Autochthonous Constitution
Professor Shivprasad Swaminathan (Jindal Global Law School) explains in The Hindu India's autochthonous constitution, and how it got that way.
According to Swaminathan, India, like some other former British colonies, faced a problem at independence: the authority for its constitution came directly from Parliament, in the form of an Independence Act and Parliament-authorized Constituent Assembly. As such, "the imperial predecessor's Constitution would have remained at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as 'legal' by the Constitution of the imperial predecessor."
India had to do something to break this chain. So, like Ireland, Pakistan, Sri Lanka, and Ghana before it, India waged a "benign legal revolution," that is, the country deliberately incorporated "procedural errors" into its own constitution. Swaminathan explains:
The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act of 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act--something the Constituent Assembly did not have authorisation to do.
The errors broke the chain between India's new post-colonial constitution and Britain, thus ensuring that Parliament could not reassert its authority and creating a truly autochthonous constitution of We the People.
The United States, of course, did not have to wage a benign legal revolution to break its chain with Britain, because it was born in armed revolution.