HISTORICAL CONSTITUTIONS
Outline of a New Constitution (B.N. Rau, 1946)
Outline of a New Constitution was a paper prepared by B.N. Rau in January 1946 while he was on special duty in the Governor General’s secretariat (Reforms). The paper was later published in India’s Constitution in the Making (ed. Shiva Rao). Rau prepared the document in the background of the elections to the provincial assemblies that were being hotly contested by the Indian National Congress and the Muslim League. Both political parties were in a deadlock over the constitutional future of India – the League demanded a separate sovereign state of Pakistan and Congress wanted a united India. In Outline, Rau attempted to resolve the deadlock through a constitutional scheme.
Outline is a 19-page document which consisted of analysis and explanatory notes. The Appendix of the document (reproduced below) distilled the proposed scheme into two memoranda which were written in a legal style – with articles and clauses. The document conceived of India to be a ‘commonwealth’ with three distinct units: 1. Hindustan Federation 2. Pakistan Federation 3. The Indian States and Tribal Areas. Each of these units would be an independent sovereign state and would come to an agreement over common interests on defence, external affairs, communications and customs. Outline further proposed a union parliament and defined the legislative and executive powers of this union. Interestingly, most provisions are related to federalism.
Suman Sharma in State Boundary Changes in India, which seems to be the lone scholarly work that engages with Outline, suggests that Rau’s paper had a significant influence on the Cabinet Mission proposals on the constitutional future of India. After the Constituent Assembly was set up, Rau was appointed the Constitutional Advisor of the Assembly and would play a critical role in the Indian constitution-making process.
ULTIMATE STRUCTURE
1. On and from a date to be specified as hereinafter provided, India shall be a Commonwealth consisting of:
(a) the Hindustan Federation
(b) the Pakistan Federation
(c) the Indian States and tribal areas.
2. Each of the Federations shall be an independent sovereign State whose boundaries and whose relations with the other members of the Commonwealth in regard to matters of mutual interest such as defence, external affairs, communications and customs shall have been previously defined by agreement or with the aid of agreed machinery as hereinafter provided.
3. As soon as possible after boundaries and mutual relations have been defined as aforesaid, and detailed constitutions have been framed for each of the two Federations, His Majesty may, by an Order-in-Council, establish the Indian Commonwealth with two independent Federations on and from a date to be specified therein.
MEMORANDUM I
1. As from the date of commencement of this constitution, India shall be an independent sovereign Union.
(1) The territories of the Union shall be in the following groups:
(A) the Central Group, comprising the provinces of Madras, Bombay, the United Provinces, Bihar, the Central Provinces and Berar, Orissa, Delhi, Ajmer-Merwara, Coorg, and Panth Piploda.
(B) the Western Group, comprising the provinces of the- Panjab, the North-West Frontier, Sind and BritishBaluchistan.
(C) the Eastern Group, comprising the provinces of Bengal, Assam and the Andaman and Nicobar Islands in the east.
(D) the Indian States and Tribal Areas.
(2) At any time after the first general election held under this constitution, the representatives of any provinces or part- province (as hereinafter defined) in the provincial legislative assembly may by resolution decide that the province or part- province, as the case may be, be transferred from one group to another and the resolution shall lake effect accordingly.
3. (1) There shall be a Union Parliament consisting of the Head of the Union and a single chamber-two chamber to which Group A on the one hand and Groups B and C, on the other, shall send an equal number of representatives.
(2) Pending the formal accession of a prescribed number of Indian States, Group D shall not have any representatives in. the Union Parliament.
(3) Indian States will accede as and when the Rulers desire and upon such terms as may be agreed upon between the- Union and the Ruler concerned.
Note: The parity granted to Groups A and B in this Article and in Article 8 and the election of the ministers of each group by the representatives of that group in the legislature, as prescribed in Article 9, should go some way towards satisfying, the sentiment behind the Pakistan demand.
4. The legislative authority of the Union Parliament shall extend only to Groups A, B and C and in Governors’ Provinces only to matters relating to defence, external affairs, communications, and the requisite finances.
5. The executive authority of the Union shall be co-extensive- with its legislative authority in relation to Groups A, B and G and shall, subject to the provisions of Article 6 below, extend to all the functions exercisable by the Crown under the Act of 1935 in relation to Group D.
6. In the exercise of its executive authority in relation to Group D, the Union shall have due regard to the following principles:
(1) The territorial integrity of the States and the dynastic succession of the Rulers must be preserved.
(2) Treaty rights and obligations must be honoured.
(3) The internal sovereignty of the Rulers must be respected: Provided that nothing herein contained shall be deemed to affect the evolution of responsible government in the States.
7. The executive authority of the Union shall be exercised by the Head of the Union and there shall be a Council of Ministers to aid and advise him in the exercise of his functions.
8. The Council shall consist of x ministers for Group A, x ministers for Groups B and C taken together, and y ministers for Group D.
9. (1) The ministers for Group A shall be elected, for the term of each Parliament, by the representatives of the group in that Parliament on the Swiss plan, and similarly the ministers for Groups B and C.
(2) Pending the admission of members from Group D to the Union Parliament, the ministers for that group shall be selected in the following manner: The Chancellor of the Chamber of Princes shall after consulting the Committee of States 5 Ministers submit a panel of z names to the Head of the Union and from this panel, the Head of the Union shall select y names upon the advice of the ministers for Groups A, B and C.
Note: This plan ensures stability for the ministry; representation in the ministry for important minorities; and a sufficient measure of responsibility of the ministry to the legislature.
10. The allocation of portfolios shall be made by the Head of the Union after consulting the ministers of all four groups.Note: The allocation may be periodically varied so as to avoid complaints of discrimination as between the groups: e.g ., for the first four years, finance may be assigned to a minister of Group A and for the next four years, to a minister of Group B or G or vice versa. The justification for bringing Group D into this distribution is that all States have already ceded jurisdiction to the Crown in respect of defence and external affairs and many of them have further limited v their jurisdiction by agreements in respect of railways, posts and telegraphs, customs, etc. The States are therefore affected by British Indian policy in all these matters and can reasonably claim a voice in the shaping of that policy. They can obtain such a voice only by being represented in the Central Cabinet. If necessary, a rule of business may be made that the ministers of Group D shall not vote at Cabinet meetings, but will have a right to attend and speak.
11. Subjects outside defence, external affairs, communications and the requisite finances shall be transferred to the Governors’ Provinces.Note: Provincial subjects in the Chief Commissioners’ Provinces will still have to be administered by the Centre: they may be included in the portfolio of one of the ministers for Groups A, B or C according to the situation of the province.