This article has been written by Ms. Shreya Bhattacharya, a 2nd year BBA LL. B student at Adamas University, Kolkata.
Introduction
Constitutional autochthony is the process of claiming constitutional nationalism from an outside legal or political power, according to political science. It typically refers to the declaration of both the concept of autonomy and the idea that the constitution is a result of local customs. Constitutions are effective and real because they are autochthonous, or homegrown.
Although the Cabinet Mission Plan in 1946 had already made the administrative decision to grant India independence, the formal declaration of independence came with the passage of the Indian Independence Act in 1947. The Constituent Assembly was envisioned and given the task of drafting the new Indian Constitution as part of this Plan. The Independence Act’s Section 8 formally recognized this. The new Constitution would be submitted to the Crown-in-Parliament for approval, according to the Cabinet Mission Plan.
Meaning of the Term Autochthonous
Although it is not frequently used in daily speech, the word “autochthony” is a synonym for “native” or “indigenous.” Although it is also used in law, it is most frequently utilized in anthropology, biology, and related fields of study. The official explanation is: 1. Coming from the place where it is found; native, as in “autochthonous rocks” or “an autochthonous population.” 2. Coming from or developing in the location where it was discovered, such as an “autochthonous blood clot.” It is Greek in origin and means “springing from the land.”
The Greek words autos (self) and chthon are where the word “autochthony” gets its name (earth). Delivering an indigenous Constitution whose “authority” may be found in the new state’s own soil is the aim of constitutional autochthony. In the middle of the 20th century, the prevailing academic theory was that autochthony could not be attained simply by writing an original constitution or declaring verbally that “We the People” were the source of its authority. This was because autochthony is less concerned with the content of the constitution than with its pedigree, or the line of legal authority that gave rise to it.
Constitutional Autochthonous Nature
A constitution’s nativity or indigenous nature is what is meant when one uses the term “constitutional autochthony.” This can be used in two diverse ways in that context: either to refer to a constitution that is created internally within a polity or nation, in which case it is free from outside legal influence, or to refer to a constitution that is rewritten, altered, or otherwise changed to “reclaim” its independence and native status.
When nations gained their independence from colonial powers, this later reclamation frequently took place because modifying or replacing these constitutions with ones created in the local country is seen to be more legitimate and authentic, therefore more legal, and enforceable. The constitutions of Ireland in 1937 (after modifications to the one from 1922), India in 1949, Zambia in 1991 (replacing the constitution from 1973), and South Africa in 1996 are just a few examples. Therefore, constitutional autochthony is concerned with both the indigenous nature of the constitution, which means that it was created from within, as well as the autonomy of the government that approved it.
When a former colony achieves independence through an armed uprising, like the United States of America did, a similar rupture in legal continuity is automatically achieved. In such cases, the Crown-in-Parliament does not “legally” grant independence, and the former colony’s newly adopted constitution is not in any way sanctioned by the imperial forebear. When an ex-colony gains independence ‘legally’ from an imperial forerunner rather than through an armed uprising, the situation is different. The British Crown-in-Parliament passed separate independence statutes (Independence Acts) for each of these nations, as was the case with India, Pakistan, Ireland, Sri Lanka, and Ghana, leading to their independence. Constituent Assemblies were established under the statutes of independence, and they were given the power to create new constitutions for each of these States.
Irish ancestry
The concept of a legislative reform that would be beneficial and aim towards constitutional autochthony was first developed by the Irish. Ireland attained independence because of the Irish Free State Constitution Act, 1922, which was passed by the British Crown-in-Parliament and gave the Irish Constituent Assembly permission to create a constitution for the newly independent state. Consequently, the Irish Constitution of 1922 was not indigenous.
Although it was created by an indigenous Constituent Assembly, the imperial legislative grant that started its legal validity chain could be found. With the intention of correcting this situation, the Irish Parliament revised the Constitution in 1937 by willfully disregarding the amendment process outlined in the Constitution of 1922 and submitted the amended Constitution for approval to a referendum. Even though it lacked the authority to do so, the Irish Parliament went one step further and overturned the British Parliament’s 1922 Irish Free State Constitution Act. It is acknowledged that this was successful in severing the cord of validity with the Crown-in-Parliament and ensuring a constitution that was indigenous. The Indian Constitution’s drafters seem to have practiced the Irish path to autochthony as much as they could under Indian circumstances.
The path to constitutional autochthony in India
The Indian Independence Act, which was passed by the Crown in Parliament, officially gave India the right to constitutional autochthony independence, albeit the Cabinet Mission Plan had already made the executive decision to do so (1946). The Constituent Assembly was envisioned and given the task of creating a new Constitution for India as part of the Cabinet Mission Plan. The Independence Act’s Section 8 formally recognized this. The new Constitution would be submitted to the Crown-in-Parliament for approval, according to the Cabinet Mission Plan. The Indian Independence Act did not specifically state that this requirement had to be met again, but it did state that the new Constitution drafted by the Constituent Assembly needed to receive the approval of the Governor General of India, who would approve such legislation on behalf of the British Crown.
In order to violate the Independence Act, the Constitution of India’s framers intentionally made the following two procedural mistakes: a) They failed to submit the Constitution for approval to the Governor-General or the British Parliament as required under the Indian Independence Act of 1947 or the Cabinet Mission Plan, respectively; b) The Indian Independence Act was repealed by Article 395 of the Indian Constitution, following the Irish example, even though the Constituent Assembly lacked the authority to do so. By doing so, the founders rejected not only the source that gave them the authority to write the Constitution but also denied—albeit symbolically—the fact that the imperial Crown-in-Parliament had granted India freedom. As a result, a fully indigenous Constitution was delivered, ensuring that the chain of constitutional validity did not reach the Crown-in-Parliament. As a result, We the People, rather than the Indian Independence Act passed by the British Crown-in-Parliament, became the “source” of authority for the Constitution through the members of the Constituent Assembly.
Conclusion
Some people may view the pursuit of autochthony as an obscure issue that only the pettiest legal theorists should care about. However, there were two factors that made the authors of the new Commonwealth Constitutions feel compelled to pay attention to it. First, there was concern that, although unlikely, the British Crown-in-Parliament may restore its control over the newly freed state by revoking the law of independence and suspending the new Constitution. Second, the framers would have been reluctant to have the new Constitution based on an imperial grant or approved by the British Crown due to emotional reasons. They would have wanted the new Constitution to be authentically indigenous, originating from the power of We the People so that an independent future might be shielded from a difficult imperial past, even if only symbolically.
References:
- https://www.thehindu.com/opinion/lead/India%E2%80%99s-benign-constitutional-revolution/article12318419.ece
- https://www.legalservicesindia.com/article/1829/Autochthonous-nature-of-the-Constitution-of-India.html
- https://en.wikipedia.org/wiki/Constitutional_autochthony#:~:text=It%20usually%20means%20the%20assertion,give%20them%20authenticity%20and%20effectiveness.
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