Autochthonous nature of the Constitution of India
Meaning : Autochthony
‘Autochthony’ is a word that rarely surfaces in everyday English, but it is a synonym for ‘native’ or ‘indigenous’. It is most often used in anthropology, biology and related sciences, but is also used in law. The formal definition is: 1. Originating where found; indigenous: as in ‘autochthonous rocks’; an ‘autochthonous people’ 2. Originating or formed in the place where found, such as an ‘autochthonous blood clot.’ It derives from the Greek, meaning ‘springing from the land’.
The etymological roots of ‘autochthony, are to be found in the Greek autos (self) and chthon (earth). The goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil. The dominant academic view in the middle of the 20th Century was that autochthony could not be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority, for autochthony does not so much concern the content of the Constitution as its pedigree: the chain of legal validity authorising it.
When referring to ‘constitutional autochthony’, one is therefore referring to the nativity or indigenous nature of a constitution. This has two practical applications in that context: when referring to a constitution that emerges internally from a polity or country, meaning that it is free from external legal control and influence; or when referring to a constitution that is redrafted, amended or otherwise remade to ‘reclaim’ it as being autonomous and native to the polity. This latter reclamation often has occurred when countries achieved their independence from colonial powers, as amending or replacing these constitutions with ones developed in the native country are considered more legitimate and authentic and therefore more valid and enforceable. Specific examples include the redrafting of the Irish constitution in 1937 (and previously there had been amendments to the 1922 constitution), India in 1949, Zambia in 1991 (replacing the constitution of 1973) and South Africa in 1996. Constitutional autochthony is therefore concerned both with the autonomy of the government that has adopted the constitution, as well as with the indigenous nature of the constitution, meaning that is has been developed from within.
Such break in legal continuity is automatically achieved where a former colony’s independence is won as the result of an armed revolution, as was the case with the United States of America. Independence in such instances is not granted ‘legally’ by the Crown-in-Parliament and the Constitution of the newly liberated former colony is in no way authorised by the imperial predecessor. The situation is very different where independence of a former colony is not brought about by armed revolution, but is ‘legally’ granted by the imperial predecessor. This was the case with India, Pakistan, Ireland, Sri Lanka and Ghana whose independence was the result of the British Crown-in-Parliament’s enactment of separate statutes of independence (Independence Act) for each of them. The statutes of independence also set up Constituent Assemblies authorising them to draft new Constitutions for each of these States.
The Irish were the pioneers in conceiving the idea of a benign legal revolution geared towards constitutional autochthony. Ireland was granted independence under the Irish Free State Constitution Act, 1922 enacted by the British Crown-in-Parliament which also authorised the Irish Constituent Assembly to draft a Constitution for the newly liberated state. Thus, the Irish Constitution of 1922 was not autochthonous.
Though it was drafted by an indigenous Constituent Assembly, its chain of legal validity could be traced to an imperial statutory grant. With a view to changing this state of affairs, in 1937 the Irish Parliament amended the Constitution by deliberately violating the procedure for amendment stipulated in the 1922 Constitution and put the amended Constitution for acceptance in a referendum. Going one step further, the Irish Parliament also repealed the Irish Free State Constitution Act, 1922 enacted by the British Parliament, though it was not empowered to do so. It is widely accepted that this successfully severed the chain of validity with the Crown-in-Parliament and ensured a truly autochthonous Constitution. The framers of the Indian Constitution appear to have rehearsed the Irish route to autochthony to the extent possible in Indian conditions.
India’s way to constitutional Autochthony
Independence was formally granted to India by the Crown-in-Parliament’s enactment of the Indian Independence Act, 1947 though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this requirement, it did specify that the new Constitution drafted by the Constituent Assembly would have to receive the assent of the Governor General of India, who would assent to such law in the name of the British Crown.
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 the either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act 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 the authorisation to do. In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all the way to the Crown-in-Parliament, thus delivering a completely autochthonous Constitution. In this fashion, We the People, through the members of the Constituent Assembly, came to be the ‘source’ of authority of the Constitution, rather than the authority being traceable to the Indian Independence Act enacted by the British Crown-in-Parliament.
Rupam lal Howlader - Assiatant Professor of Law, Uttaranchal University, Dehradun, INDIA.