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India recently celebrated its 68th Constitution Day on November 26th. A day that commemorates the adoption of the Constitution of India on November 26th, 1949. Albeit contestations whether the Constitution, and the setting up of a Constitutional democracy, has been beneficial to the marginalized, especially the Dalits, women and queer-folk, the occasion calls for a remembrance of the Constitution, its encapsulations and its significant ramifications.

In this context, let’s retrace how the Constitutional framework of federalism, and the debates surrounding it, eventually became a significant factor in the creation of Pakistan.

In 1927, the Simon Commission was appointed to visit India in 1928 to suggest key constitutional reforms. Jinnah, who had left the Congress by now and was a full time active member of the All India Muslim League, wished to make use of this opportunity to forge an alliance for a collective front in bargaining power for India. Ayesha Jalal, in The Sole Spokesman, notes that Jinnah was always a nationalist and that he put his nationalism before his allegiance to the All India Muslim League. In this context Jinnah faced a complexity. Congress proposed a strong unitary Centre as the preferred model whilst the Muslim League wanted a weak federal structure (a confederation, as opposed to a strong unitary setup) wherein the Provinces would be the real bearers of power and not the Centre. Although Jinnah’s own political leanings was favouring the Congress model of a unitary Centre, he put forward a tactical ‘fourteen point’ list arguing for the Muslim League’s aspirations, whilst ready to negotiate on its terms, even willing to forego separate electorates and representation. The vested interests from which these position emerge become important here. At the time, Punjab and Bengal were heavily Muslim dominated areas. Both the Punjab Province and the Bengal Presidency has a clear majority of the Muslim community somewhere around 53% of the total population. It is, therefore, unsurprising that All India Muslim League preferred a strong provincial setup, where local affairs can be tightly controlled, as opposed to running the risk of a Hindu dominated strong Centre.

It must be mentioned here that this(strong provincial setup) was not the unanimous position of all Muslims in the subcontinent. The arguments and demands were diverse and fractured. Whilst a separate, independent and lose-federal structure would favour the Muslims where they were in a majority in the provinces, the Muslims who were in a minority in various Provinces felt that they would lose out on any political bargaining power if this were granted, so their focus was entirely in settling the separate electorates question first, and the federal question secondary. This complicated the position even more for Jinnah, who had to weave and integrate a strong nationalist position against the British, in addition to balancing these opposing interests.

The Government of India Act, 1935

The Government of India Act, 1935 abolished diarchy (which came into the picture through the Montague-Chelmsford reforms of 1919) and gave more provincial autonomy to the provinces, whilst a strong control was retained in the Centre by the British Raj. This was not a method to leave India, but a strategic method to stay on. The focus, and the complications involved from prior-hand, now shifted to residuary powers. Those who had strong convictions for a strong Centre, vociferously argued for the residuary powers to be vested with the Centre, whilst those who were wary of the unitary model, especially the Muslim League, stressed that the residuary provinces be delegated to the provinces.

Many sections of the Government of India Act, which also extended inspirations for the drafting of the Constitution of India, paved way for placing limits on the provincial autonomy. For example, Section 93 of the Act allowed special powers to the Governors, who were allowed (as per the Section) to take over the administration of any province.

Jinnah’s personal reservations with stronger autonomy to the Centre made him align with the Congress to wrest power from the British in the Centre. So it seems that the polarized debates on federalism was put to rest, albeit briefly, in the years leading up to the 1937 provincial elections. If the League was to make its position in the provinces strong, it had an opportunity, along with Congress, to share power in the Centre, which was something Jinnah was fervently hoping for.

But all was not heyday for Jinnah, for he faced stiff opposition from the States which enjoyed considerable provincial autonomy to organize themselves for a share in power at the Centre. They had little, or no, incentive to leave what they had got from the 1935 Act to rally an opposition for the Centre.

Alternatively, by its success in the 1937 election, Congress felt that it could do without Muslim League, something Jinnah was ardently hoping for. Congress was able to set up six ministries post the 1937 elections, and felt that it already had a lot to deal with within the party lines, than deal with another organization with a separate high command.

Considering that Majority provincial rulers were content with their limited share of power in the provinces, and also considering that the League did not exert control over the Muslims on a united, all-India scale, the Congress saw no incentive in sharing power with the League at an All-India stage, and it felt single-handedly equipped to deal with the British Raj in the Centre.

An unexpected jolt and the Lahore Resolution

While both the League and the Congress were steadily attempting to galvanize a united and strong support, an unexpected whirlwind struck them. During April 1939, when the Second World War was imminent, in a desperate measure to ensure provincial obedience to the British Raj at the Centre, the Delhi Government, successfully, persuaded the British Parliament in London to add a clause in the 1935 Act. As a result, Section 126-A was added by Westminster to the Act that gave complete authority to the Central executive to pass any law, as it deems fit, to the provinces as well. In a single stroke, whatever provincial autonomy was extended by the 1935 Act, was now negated. In a frantic response, Congress made a surprising demand on the 14th of September, 1939. It announced a seemingly firm demand for complete independence and the setting up of a constituent assembly to enforce it.

When Linlithgow was frenziedly searching for a way to counter Congress’s claim to be speaking for All-Indians, came the All India Muslim League’s resolution. The League asserted that no constitutional reform would be enforced without the prior approval of the Muslim League, which Linlithgow hurriedly accepted. In protest, the Congress high-command got 8 of its provincial ministries to resign on 10th November, 1939.  This paved the way for a stronger coalition between the British Raj and the League under Jinnah’s control, sharing a common refusal to engage with Congress.

On being pressed repeatedly by Linlithgow, the League had to prepare a working scheme to be submitted on the fate of constitutional future of the subcontinent. A brief was prepared on how the two Majority provinces of Punjab and Bengal will comprise two independent dominions, within India, in direct relationship with Great Britain. This brief, adopted on the 24th of March, 1940, came to be called the Lahore Resolution, and was the foundational stone, upon which the demand for Pakistan would be constructed.

In response to both the League’s and the Congress’s demands, Linlithgow was instrumental in creating the August Offer on the 8th of August, 1940. Through the offer, Linlithgow proposed to expand the Viceroy’s Council with more Indians, including the War Council, giving full weight to minority opinion (to appease the League). The August Offer proposed to recognize the right of Indians to frame their own Constitution, hoping that the British Raj would receive support in the war.

Unsurprisingly both Congress and the League rejected the offer, for none of their respective demands were even remotely considered. Bowing to pressure from around the globe, and from within Britain itself, Stafford Cripps created a scheme of constitutional assembly with proportionate representation. Although Winston Churchill was against promising a Dominion Status to India, Cripps was invited to go to India to test the responses to the scheme. As expected, the Cripps Mission was faced with stiff opposition from the League as well as the Congress, resulting in its failure.

After the return of the Cripps Mission, the demand of self-determination by the League grew more belligerent and strong, the only blind-spot was that the demand was being made on provincial lines, as opposed to communal lines, resulting in stiff resistance from many within the provinces as well.

Things remained pretty much on status quo, until Lord Wavell arrived in India in 1945. It was announced that provincial elections would take place in early 1946, in which the Congress stood first with around 91% votes gained in Non-Muslim constituencies whilst the League fared well too with majority votes from the Muslim majority and Muslim reserved provinces. As Yasmin Niaz argues, this victory of the League, eventually, became the plebiscite point for the creation of Pakistan.

One wonders whether things would have been different if the Congress were to accommodate the possibility of having a stronger federal character with residuary power titled in the favour of the provinces than the Centre. Needless to say, this is not something that is an outdated controversy, for states still contest with the Centre for excessive abuse of federal powers.

As the adage goes- those who forget history are condemned to repeat it.

 Sabarish Suresh is a law student at the O.P Jindal Global University, Haryana. He is interested in Criminal Law and Human Rights and also actively writes on gender and sexuality.

One Comment

  1. K SHESHU BABU says:

    Divide and rule of Britishers and extremist hindu forces within Congress were the main factors for creation of Pakistan. Muslim league was compelled to take a different stance and demand separate nationhood status as it felt discrimination at every level from the hindu elements everywhere

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