Discovering India’s “Federal Fabric”

Returning to 1926, Frederick Whyte argued that in England institutions mattered less than the people who ran them. The political temperament of the English people was the sine qua non of their political system. For an India looking to build new political institutions, England would have less to offer since their people were not the same: “Tangible institutions are a necessary part of a Federal Constitution, and as Britain offers no great variety of such political institutions to the scrutiny of the student, they must be sought for the most part in other countries.”Footnote ¹⁹ He thought that “a closer study of other constitutions might provide palatable solutions” for India.Footnote ²⁰ Whyte was not an anti-imperialist; rather, his claim was that British rule over India should not lead to the conclusion that the English political system was the one best suited for India. This pushback against uncritical acceptance of the English system for India marked the British conservative approach to the constitutional debates in interwar India.

In August 1928, C. P. Ramaswamy Aiyar, the future prime minister of Travancore and a constitutional lawyer par excellence, articulated a conception of federal India in a speech in Mysore titled “Federal Idea.” He was one of the earliest and most forceful proponents of an all-India federation. Like Whyte, C. P. undertook a survey of the world’s leading constitutions to formulate his views for a federal India. He extended his analyses to lesser-known constitutions of Brazil, Mexico, and Ireland, and to ancient Greek and medieval Italian history. A running theme in his account is the organization of executive power in the state and its relationship with legislatures. The challenge of ordering executive power independent of the vagaries of representative legislatures had, he wrote, put “parliamentary democracy on its trial.”Footnote ²¹ In the later decades, C. P. would become the preeminent proponent of monarchial sovereignty and executive power fashioned after the American presidency, and he wrote a constitution for Travancore along these lines.Footnote ²² What strikes one about his early work is his comparative approach and desire to look for models outside the empire. He concluded, “The predilection of modern constitutional writers and publicists has been in favor of the federal model rather than of the unitary Government.”Footnote ²³ He went on to outline a federal framework for India that included provincial autonomy, the vesting of residuary powers, and enumerating legislative powers into federal and state lists. These ideas would morph into constitutional principles in the years that followed.

The search for constitutional models beyond the empire was prevalent among not only politicians and statesmen but also leading Indian academics of the time. Beni Prasad, the first chair of the newly founded political science department at Allahabad University and a well-known expert on Indian political thought, in a book-length study of the Indian problem made a case for looking beyond English constitutionalism. He averred: “There is one strong historical reason why the new Indian constitution should take note of political principles and worldwide political experience. The progress of the Indian constitution, as distinct from administrative routine, has largely followed the English way with a few side-glances at Dominion practices. The rest of the world hardly entered into the calculations of those who were directly or indirectly responsible for the formulation of Indian constitutional projects (my emphasis).Footnote ²⁴

For Prasad, “a comparative study of constitutions” was indispensable for the successful drafting of a nation’s own. Quoting Woodrow Wilson, he argued that the work of a convention was one of selection and not creation, and suggested that Americans, Irish, Japanese, and Europeans had borrowed their constitutional ideals from foreign places. Like Whyte, Prasad found the English model inadequate due to India’s “different psychological setting and historical background.”Footnote ²⁵ For him, the fact that in the aftermath of World War I nations all over the world had been revising their constitutions lent urgency and unity of purpose to the impending reforms in India.

A striking feature of Prasad’s account is his attempt to situate federalism as an Indian ideal. He thought that federal ideas had existed in India for centuries. Even as federalism in its “regular, clear-cut form” is a “modern contrivance,” its “essential elements” were to be found in the Indian past. Ancient Indian empires of Mauryas, Guptas, Vardhanas, and Rashtrakutas contained “federal fabrics” that permitted “local autonomy.”Footnote ²⁶ Even as there were “centripetal forces” during the Muslim rule, local initiative and independence continued to thrive. This long history of federalism in India had ended with the advent of British rule. “It was reserved for the British administration to give the coup de grace to all the elements of federalism within British India, to bring the unifying forces to a climax, and establish a centralized, uniform government.”Footnote ²⁷ The long British rule that deprived provinces of sovereignty in service of a unitary state posed considerable challenges in devising a federal constitution. For, unlike the princely states, or federating units in the United States, Germany, Switzerland, or Canada, the Indian provinces had no de jure sovereignty.Footnote ²⁸ Thus restoring the independence of the provinces was a prerequisite for federating India. Briefly stated, Prasad argued that federalism was “the most desirable form of political organization” for India for it not only met democratic and administrative needs but was also in tandem with the “age-long trend of Indian history.”Footnote ²⁹ This conception of federalism is in marked tension with views dominant in Indian historiography that consider federalism a British imposition.Footnote ³⁰ Prasad took special care not to discuss the question of the princely states, claiming that it was a problem susceptible to political, as opposed to constitutional, resolution. Yet, he argued that a federalism that respected the sovereignty and treaty rights of the states was the solution to the Indian problem. He thought that this “end could be achieved, as it was achieved in somewhat analogous circumstances in pre-war Germany by a federation resting on treaties and a rigid written constitution.”Footnote ³¹

Prasad’s was not a lonely voice. We find a similar discussion of federalism in Brij Mohan Sharma’s Indian Federation (1932), originally written as a Ph.D. thesis in political science at Lucknow University.Footnote ³² Sharma’s many years of intellectual labor stood close to Prasad’s in his approach to history. The ancient empires were far from being unitary and respected local independence in return for allegiance to the emperor. In Sharma’s presentation, the decline of the Hindu empires (mainly due to the collapse of leadership) led to Muslim rule, centralization, and a subsequent rise of centrifugal forces, which led in turn to the advent of British rule. This is the same story Prasad depicted in his book, but Sharma went a step further and argued that the ancient Mauryan Empire was comparable with British India in its relationship with the princely states and in the co-existence of democracy and monarchy.Footnote ³³ This accommodative capacity of federalism would help safeguard India’s political diversity. The past aside, Sharma, too, was unambiguous in asserting that Indians “have to be guided by the experience of other constitutions” in conceiving a federalism suitable to their circumstances.Footnote ³⁴ References to the leading federal constitutions, especially the American and German ones, are found throughout his book.

These academic writings in the interwar period were a part of the resurgent interest in India’s past, especially its republican and democratic past. Historians like K. P. Jayaswal and Hem Chandra Raychaudhuri found historical evidence for a republican system among the Licchavis to argue that a republican system of government was not alien to Indians aspiring for self-government. These investigations into India’s past lent a stronger ground to those federalists who opposed parliamentary democracy as not representative enough.Footnote ³⁵ For our purposes, what Prasad’s and Sharma’s books demonstrate is the nascent character of comparative constitutionalism among Indian academics in the 1930s in the context of imagining a future constitution for India. The exhortative and didactic nature of their works suggests that with comparative constitutionalism they were entering a new field unknown to most Indians. While these anodyne academic discussions of federalism did not necessarily advocate for one model over another (and often left readers to choose), writings by politicians and statesmen approached the federal question quite differently, albeit still comparatively. I now turn to one such paradigmatic treatment of federalism to illustrate how, with the impulse toward federalism, gazes shifted not only away from English political systems, but decisively toward the history and constitutionalism of imperial Germany.

Germany and the Ends of Federalism

When K. N. Haksar, a veteran statesman from Gwalior, and K. M. Panikkar, an Oxford-educated official from Travancore serving the Chamber of Princes, joined forces to write Federal India in 1930, little did they know that their arguments for and against federalism would mark the rest of India’s colonial history.Footnote ³⁶ Federal India, coming out a few months before the first Round Table Conference met in London in November 1930, was the first major work to deal with the federal question from the perspective of the princely states.Footnote ³⁷ If Frederick Whyte considered federation through the eyes of the British provinces, Haksar and Panikkar argued that the “rights of the states are a governing factor in the solution of the Indian problem.”Footnote ³⁸ With enviable clarity, they maintained that the “organic union” of the princely states with the British provinces “can only be on a federal basis” (their italics).Footnote ³⁹

Haksar and Panikkar undertook a survey of the federal constitutions of the United States, Germany, Switzerland, Australia, Canada, and the Soviet Union to “select” an ideal model for India. As proponents of states’ rights, they were opinionated on each of these constitutions, and offered nuanced yet partial readings of them to buttress their argument that the future Indian federation had to respect and safeguard states’ rights. The U.S. Constitution came up short because its states “were artificial and had not been strengthened by centuries of local feeling and loyalty to particular dynasties.”Footnote ⁴⁰ The Australian constitution, too, was wanting because of the domineering control the lower house had on the federal executive (or its “parliamentary responsibility”) to the exclusion of the interests of the federated states.Footnote ⁴¹ Canada’s was a unitary constitution, and the Swiss model was better suited to small countries. Both the U.S. and Soviet constitutions were especially lacking due to similarities between their constituent states, the former’s states being uniformly committed to republicanism and the latter’s to socialist republicanism.Footnote ⁴² For Haksar and Panikkar, monarchy and democracy could not co-exist in a federation that upheld such parity between its units.

The authors of Federal India presented a snapshot view of Germany’s history—from the Holy Roman Empire and through the German Empire to the Weimar Republic—to argue that Germany provided the most suitable model for future India. They thought German history offered an object lesson in managing centrifugal and centripetal forces. Characterization of the Indian problem as a search for harmony between centrifugal and centripetal forces is an important feature of the federalist discourses in interwar India.Footnote ⁴³ For these writers, these dueling forces also defined the entirety of India’s past. They argued in the German imperial tradition that the Indian constitution should have “two fundamental attributes”: first, a “central authority” with sufficient power to hold federal units and an ability to engender “national loyalty,” and second, “autonomy of the subordinate administrations.”Footnote ⁴⁴ They thought that an “equilibrium” between the powers of the center and units “alone would ensure the permanence of the constitution.” They went on to suggest, “Nowhere else was the reconciliation between the claims of local sovereignty and the demands of the central government so satisfactorily effected as in the German Reich founded by Bismarck.”Footnote ⁴⁵ The claims of the German princes were accommodated without “weakening the central authority of the Second Reich.” And yet, the Second Reich also “recognized local sovereignties by leaving the member-states intact with their own institutions, councils, and governments,” by transferring only enumerated powers to the central government.Footnote ⁴⁶ They pointed to the persistence of states in Germany to argue that, even when the empire gave way to the German Republic in 1918, German states were not abolished. “Bavarian and Saxon particularism seems to be as strong today as it was in the days of the German Empire.”Footnote ⁴⁷

The text of the German imperial constitution, enacted on 16 April 1871, was reproduced as an appendix in Federal India, revealing its prime place in the authors’ federal imagination. Haksar and Panikkar considered states as the core of constitutions, and balancing local autonomy with central power was to be the main function of a constitution. For them, this constitutional ideology was best instantiated in imperial Germany. “The Constitution of Imperial Germany presents more analogies to the student of Indian politics than does that of the United States of America.”Footnote ⁴⁸ The union of American states was a “union of equal states,” whereas the union of Germany was constituted by small states with differential claims to sovereignty. Prussia, as the dominant power, negotiated treaties with each of the German states independently, and the safeguards granted to these states differed from one to another. Southern states like Bavaria, Baden, and Württemberg had more powers; not only did they send more representatives to the Bundesrat (Federal Council), but article 4 of the imperial constitution, which enumerated federal powers, also made special guarantees to their sovereignty in subjects like railways, and post and telegraph.Footnote ⁴⁹ The Bundesrat, where Prussia and southern states held majority votes, had significant powers including to veto legislation that affected their sovereignty. For Haksar and Panikkar, the Indian states and the powerful German states were equally sovereign, and thus the Indian states deserved the same constitutional guarantees. This line of federal constitutional theory premised on the sovereignty of the (princely) states could have found no better model than that of imperial Germany.

The German federal theory shaped the subsequent phase of constitutional debates about federation in the aftermath of the Government of India Act of 1935. All the federal plans proposed by the princely states in this phase would revert to this basic blueprint of a federal India based on the German imperial constitution. In the 1930s and 1940s, almost all princely states insisted that some subjects be exempt from the enumerated powers of the federal government. For instance, a powerful maritime state like Travancore would insist that it retain authority over federal subjects like Salt, Post, Telegraph, Customs, and Excise (import and export duties), much as some southern German states were exempted from the enumerated powers of the federal authority in imperial Germany.

Haksar and Panikkar, like many federalists, thought that not only was a unitary, centralized government unattainable and unsuitable for India, but that it went against the “regional particularism” that characterized India and, if history was any indication, should be avoided. For them, federalism and parliamentary government were “essentially incompatible [sic].” The general turn toward federal ideas in the interwar period must be situated within the twin crises of democracy and parliamentarism, which were more visible in Europe than in a colony like India, but were no less acute in the latter. The idea that federalism means “sovereignty in the constituent states,” as opposed to sovereignty in the people, set apart the Indian federalist ideas shaped in the mold of Germany.Footnote ⁵⁰ The reasons imperial Germany appealed to Indian federalists were not limited to the constitutional theory of states’ rights; German imperial constitutionalism was also a good example of a mixed constitution, wherein monarchy co-existed with representative wings of the government (Reichstag). In the interwar period, progressive Indian states like Bikaner, Cochin, Travancore, and Mysore were engaged in constitutional reforms to find a middle ground between monarchy and democracy. Rather than leaving the central government’s stability to the confidence of a lower house as in parliamentary government, the German hybrid model allowed for greater stability by sharing the executive’s powers with the state council (Bundesrat). All these constitutional principles greatly appealed to the princes and Muslims who wanted to safeguard their autonomy against majoritarian and democratic impulses.

In the 1930s the German imperial constitution, despite its virtues, was not a living constitution. For Panikkar and Haksar, the constitution had stacked more powers in favor of the states, and its demise had been primarily caused by the center’s growing powers and the concomitant diminution of states’ rights. As a result, the tension between central and local powers persisted, which led to the constitution’s abolition in favor of a new one that stacked powers more in favor of the central authority. They thought that this cyclical play of local and central powers in India could be ended if Indians learned from the German example and aimed for a perfect balance between central and local powers. They assigned a more crucial role to the national judiciary and national army than was seen in imperial Germany. Two institutions they considered important for a future India were an independent Supreme Court with powers to decide constitutional issues concerning the states, and a national army (instead of segmented armies under each state’s control) that could foster the national unity and loyalty essential for a stable constitution.Footnote ⁵¹ The idea that a Supreme Court should be the guardian of states’ rights thus runs parallel to the idea of a Supreme Court as the guardian of fundamental (individual) rights.Footnote ⁵² This again points to an alternate trajectory of constitutionalism that favored states’ over individual’s rights, as the central edifice of new India.

The Aga Khan, the spiritual and temporal leader of the Ismailis and a founder of the All-India Muslim League, had been a vocal advocate of the German model for India as early as 1918. In his famous book India in Transition, he recalled his conversations with Bismarck’s son Count Herbert and the latter’s belief that the “organic parliamentary union” as it existed in France or the United Kingdom would have only broken the German Empire because of its size.Footnote ⁵³ Given India’s geographical size and diversity, Aga Khan argued, the parliamentary model was likewise unsuitable there. Balkanization did not emanate from granting regional autonomy but from “over-centralisation and the enforcement of an unnatural uniformity.” Thus, he argued, “The problem of free India within the British Empire can only be solved by federalism.”Footnote ⁵⁴ The Aga Khan articulated these ideas even more stridently ten years later as a response to The Nehru Report of 1928, which advocated for a unitary state.Footnote ⁵⁵ The similarity between the views of the Aga Khan and Haksar and Panikkar shows how certain Muslim leaders, princes, and their advisors held similar views on India’s future constitution. For all three, the main strength of the German imperial constitution lay in the ability of each federating unit to have a different relationship with the federal center. The special position of Prussia and Bavaria in the German constitution (as the Aga Khan argued in his 1928 scheme) provided a model for thinking about the rights of both the princely states and Muslim-dominated provinces within an Indian federation that would be dominated by the Hindus or the Congress Party.

There were various other Muslim visions of federation. Muslim leaders like Muhammad Iqbal and Sayyid Abdul Latif argued that a solution to the communal problem lay in granting Muslims homelands in the provinces where they were a numerical majority. For Iqbal, “a unitary form of government was [sic] unthinkable in a self-governing India,” and India’s only hope was a “true federation” that respected the distinct character of the Muslims and left the residuary powers in the provinces.Footnote ⁵⁶ Latif, on the other hand, sought to give a constitutional shape to the Lahore Resolution of 1940 that demanded Pakistan. He imagined India being divided into Hindu- and Muslim-majority cultural zones wherever possible, with the rest made up of linguistic provinces governed by a common center where both communities held equal power.Footnote ⁵⁷ Latif’s plan was geared toward a united India and clashed with M. A. Jinnah’s idea of “Pakistan in isolation,” or the so-called “two-nation theory.” Shafaat Ahmad Khan, a well-known Muslim politician and academic, assigned a place of prime importance to German theories of federation in his commentaries on India’s future constitution. He expatiated the arguments of German theorists like Von Seydel, Jellinek, and Gierke to show that federalism brought to the fore the question of state and sovereignty. Khan argued that the only solution to the Indian problem lay in provincial independence with a strong center.Footnote ⁵⁸ The fascinating worlds of Muslim federal thought warrant their own study, but suffice it to say here that all of these disparate Muslim visions of federation stood closer to the German model, wherein federal units invested with residuary powers could have different relationships with the center.

Why did German imperial constitutionalism so appeal to these Indian federalists? The Germans had a tradition of thinking about states as the loci of sovereignty in contradistinction to the French and the Americans, who saw sovereignty as resting with the people. While the French Revolution established the popular basis of sovereignty, the American Revolution fell short of that goal. In the United States, the people were established as the source of sovereignty only decades later by the Civil War. In Germany, debates over the source of sovereignty raged on for more than a century, producing fascinating corpora of jurisprudence relating to sovereignty and federalism. Dieter Grimm’s writings offer English readers a modern account of the texture and nuance of this body of scholarship.Footnote ⁵⁹ In a confederation formed out of the voluntary association of states, sovereignty was presumed to reside in those states. However, with the demand for national unity, which “meant a nation-state,” confederations were to give way to a national, federal state that possessed sovereignty independent of the units.Footnote ⁶⁰

How was one to arrive at this compromise given that the states were monarchies and their cooperation, rather than extinction, was essential to founding a national state? Grimm argues that this dilemma—having a sovereign federal state existing alongside sovereign constituent states—explains “the central importance of the sovereignty question in the process of founding new Germany.” “Everything depended on the solution of this question.” Footnote ⁶¹ It engaged the attention of many German scholars of the time, ranging from Georg Waitz, who suggested that both monarchies/constituent states and the federal state should have independent, separate sovereignties; to Max Seydel, who thought that sovereignty could not be so divided since it would lead to two states controlling the same area; to Georg Jellinek, who considered sovereignty a characteristic of states that was not diminished by self-imposed limitations. Jellinek’s argument that sovereignty was not diminished by power-sharing between the center and units was refreshingly new for the time.Footnote ⁶² The rich German scholarship on the sovereignty question need not detain us here except to say that this question was later given a new perspective in Weimar Germany by Carl Schmitt through his argument that, in a federation, the question of sovereignty—how to federate states without extinguishing their sovereignty—is only “evaded” and never resolved.Footnote ⁶³

Even as Indian federalists looked up to Germany in the interwar period, Germans themselves were looking for lessons from other countries, especially England and France, while drafting the Weimar Constitution. Max Weber and Hugo Preuss considered English parliamentarism to be the “true” form of parliamentarism, but finally chose to have a mixed constitution. A majority of Germans in 1918–1919 was opposed to parliamentarism and democracy. The main opposition to parliamentarism came from the monarchists or sympathizers of a Kaiser Reich. Thomas Mann articulated this sentiment: “I want the monarchy, I want a passionately independent government because only it offers protection for freedom in the intellectual as well as the economic sphere…. I do not want this parliamentary and party business that will sour the whole life of the nation with its politics.”Footnote ⁶⁴ Schmitt’s main critique of parliamentarism was that its core principle, that of “openness and discussion,” had become outdated since political differences could not be reduced to a conflict of opinion.Footnote ⁶⁵ Indian federalists like Haksar and Panikkar, too, were arrant monarchists who saw parliamentarism as incompatible with monarchism. In particular, they feared that an elected lower house would dominate an indirectly elected or nominated upper house in which states held seats. They thought that India should emulate the compromise imperial Germany had achieved between the interests of states and those of people.

German federal jurisprudence so appealed to the princely states that in 1933 the Chamber of Princes employed two famous German lawyers of the time—Viktor Bruns and Carl Bilfinger—to write a legal opinion on the rights of the Indian states.Footnote ⁶⁶ They were the first two directors of the Kaiser Wilhelm Institute for Comparative Public Law and International Law in Berlin. Their main burden was to apply the German constitutional principles to the situation of the Indian states. They argued that the Indian federation should seek a fine balance between equality and proportionality like that found in the German imperial constitution.Footnote ⁶⁷ This meant that every state, by virtue of its sovereignty, would be equal to the others, but their sizes, populations, and rights could vary, as could their representation in the federal council. The prime example was Bavaria, which, as they showed, enjoyed special rights that no other states did, such as to tax beer, which was otherwise a federal subject.Footnote ⁶⁸ As international lawyers, they applied the maxim of international law that sovereign states, despite their special features, were legally equal.

J. H. Morgan, an eminent lawyer and a professor of constitutional law at the University College London, was a major champion of states’ rights. In an undated opinion, titled “A Note on ‘Sonder-Rechte’ and Their Place in a Federal Constitution,” written around the Round Table Conference in the early 1930s, Morgan gave a snapshot view of the history of states’ rights in Germany to explain the lessons the princes could draw from it.Footnote ⁶⁹ He argued that the German imperial federation provided the best model for safeguarding the “special rights” of Indian states, and went on to suggest that “the analogies with the situation of British India and the Native States are obvious.” He argued that the Indian states had the same relationship with British India as Bavaria had with the federal state. For him, that the German constitution was never amended between 1879 and 1919 was a testament to Germany’s success in reconciling federalism and the special rights of the states.

The centrality of imperial Germany in interwar federal imaginations, I suggest, allows us to see an alternate trajectory of federalist ideas which did not emanate directly from political pluralism.Footnote ⁷⁰ With the rise of pluralist theories, conceptions of state and sovereignty began to move away from the “one country, one law” unitarism that characterized A. V. Dicey and his followers. Dicey’s restatement of British constitutionalism in the language of parliamentary sovereignty dominated English legal thought at the turn of the twentieth century.Footnote ⁷¹ The pluralist theories of Harold Laski and G.D.H. Cole gestured toward political pluralism and federative forms of government in a refreshing departure from Westminster-centric analyses. Laski famously argued that sovereignty was about will and imposing reasonable expectations of obedience on others. According to him, the state was not the only organization that could “secure obedience to all its acts,” and other decentralized institutions like corporations and trade unions had similar authority.Footnote ⁷² The pluralism of the German lands, as articulated by Otto von Gierke, and its influence on political pluralism in England, have been documented.Footnote ⁷³ Laski’s own student, Sobei Mogi, dealt with this relationship, and Gierke in particular, in a treatise on federation.Footnote ⁷⁴ Gierke’s political theory rested on groups and associations rather than the individual or the state. All these pluralist traditions taken together point toward the limits of statism and the primacy of associations of individuals within the states. But the German-inspired tradition of federalist ideas in India distinguished itself by considering the states to be above both groups and individuals.

German-inspired federal ideas in India marked a break with federalist imageries based on local self-government that had held sway at the turn of the century. They introduced a new phase of federal debates in which political realism and state sovereignty became dominant concerns. Accounts of federalism that trace it through political pluralism, village republics, and other decentralized associational and democratic forms of politics have greatly contributed to our understanding of federalist ideas in South Asia.Footnote ⁷⁵ But these strands of federalism ran parallel to the state-centric federalism articulated by the Indian princely states and Muslim leaders. By the 1930s, the village-republic-based federalism in India, which often did not engage with the questions of the princely states or minorities, had for all practical purposes ended, and debates now focused on how to unite princely and British India. Merve Fejzula’s account of the historiography of federalism suggests that mid-twentieth-century African federalists wrangled with conceptions of the state more than we have recognized and that the “debates over federalism” were central to “the problem of state.”Footnote ⁷⁶ If we fail to analyze the importance of state-centric federalist ideas in interwar India then we neglect a large repertoire of anti-liberal and anti-individual ideas that played a significant role in imagining alternate paths for India’s future.

Vernacular Constitutional Imaginaries and the Move Away from History

Thinking about India’s past and future comparatively was a key feature of the turn to world constitutions in the 1930s. History and constitutionalism merge here insofar as a robust understanding of a nation’s history, political conditions, and possible futures was important for understanding that nation’s constitutional culture and preferences. Yet not everyone who sought models and lessons elsewhere was historically minded. A strong case in point was Vidwan C. S. Nair (d. 1942), a prominent literary critic in Travancore who published a comparative study of world constitutions, written in Malayalam. Nair’s writing stands out for not only his use of local idioms and metaphors to explain world constitutions, but also his exhortation to move away from history, which offered “lessons” but not “models.” Nair wrote his lengthy essay “Indiayude Bavibaranam” (“India’s future constitution”), in 1931 while the first Round Table Conference was still in session. Aware of the arguments for and against the federation and unitary governments, voiced both before and during the conference, he gave a theoretical exposition on both systems of government, drawing on the American, Australian, Canadian, German, and Swiss constitutions. For him, federalism was a system of divided sovereignty, wherein central governments and state governments exercised independent powers, whereas in unitary states power resided in a single center. In other words, as Nair argued, “If constituent states are strong (prabalam; in this context, possess sovereignty) in a federal government (samyuktabaranam), the central government is strong in a unitary government (aikyabaranam).”Footnote ⁷⁷

Nair thought it was paramount that people appreciate the differences between these two forms of government, not only for understanding the contemporary debates but also for making informed decisions about the future. In an interesting departure, but true to his local roots, Nair sought to explain the differences between federal and unitary governments through the metaphor of the Nair joint-family system (tharavadu), the matrilineal system common to the Nairs of Kerala. He explained that a federal government functioned comparably to how a joint family—with many matrilineal groups united under a powerful yet nominal head (karanavan)—administered their common property but made allocations to each matrilineal line, in accordance with the agreements arrived at by the family’s members.Footnote ⁷⁸ A unitary system, on the other hand, was like a tharavadu, where the all-powerful karanavan unilaterally administered family properties for the common benefit of all.Footnote ⁷⁹ In fact, in many Nair houses (tharavadu) both of these arrangements operated, with or without the karanavan playing a dominant role. For C. S. Nair, the main purpose of the Round Table Conference was to change India’s unitary government into a federal one. Quoting Edmund Burke, he suggested that establishing a unitary government “did not require as much intellectual prowess,” whereas establishing an “equilibrium” (samarasam) between the center and the states in a federation called for “deep thinking” and careful reflection.Footnote ⁸⁰

While the locus of residuary powers distinguished Australia, Switzerland, and the United States from Canada and Weimar Germany—powers lay with the states in the former group and with the center in the latter—Nair argued that the nature of federal governments in each of these countries was a product of their peculiar “historical vision (caritra drsti) and circumstances (paritastiti).”Footnote ⁸¹ However, he thought that in India history and circumstances by themselves were insufficient, for there were equally strong historical and circumstantial reasons that could make both federal and unitary governments compelling choices to Indians. The princely states and the Muslims, he wrote, wanted a federal state, but unitarism was conducive to nationalism and an antidote to communalism and divisive politics. Thus, Nair argued, India could not make the same choices as Americans or Australians had, since her history had led to a present in which there were two strong yet antagonistic and competing ideas. Nair argued that, to reconcile them, Indians needed to think “logically and with a view to the future” rather than historically.Footnote ⁸² He was unequivocal: “As far as the future constitution of India is concerned, it is not history, but logic should guide us.”Footnote ⁸³

Consequently, the logical solution that Nair arrived at was to combine federal and unitary features in the future constitution—a federalism with unitary features, as it were. The way to move forward was via a central government strong enough to impose a unified currency and tariffs and capable of restraining the autocratic princely states, but within a federal structure. Nair considered the contemporary constitutions of Germany and Austria to be products of moves away from history toward logic. It was logical thinking that had prompted Germany after the First World War to embrace unitary features and move away from its federal model toward a people-centered constitution. On the other hand, after the war Austria moved from a unitary to a federal constitution for “economic upliftment and sociocultural unity.”Footnote ⁸⁴ Thus, Nair found the Weimar history and constitution instructive for Indians, for it showed the strength of logical thinking over historical thinking.

C. S. Nair was not the only Malayali intellectual who thought about India’s future government in comparative terms, or who recognized that solutions to the Indian problem could be found not only in India’s own history but in logical conclusions arrived at by people of other nations. In the same year, 1931, C. V. Chandrasekharan, Oxford-educated Principal of the Maharaja’s College in Travancore, wrote an article for a Malayalam magazine, titled “Federal Constitutions,” which discussed the “essential features of a truly federal constitution.”Footnote ⁸⁵ Like many others, he discussed the features of leading federal constitutions like those of the United States and Germany, mainly to make the point that “the impulses toward federation are strong common sentiment, economic interest, and urgent political necessity.”Footnote ⁸⁶ He argued that in the United States the states were impelled toward a confederation in order to fight England, while the appearance of foreign powers in the Pacific had driven Australians to federate, and South Africans were led to write their union constitution by a need to unify the country. He went on to argue that the key features of a true federation were a federal executive (more powerful than the American one), a federal legislature, a rigid and written constitution, and a Supreme Court.

Conceptualizing Comparative Constitutionalism and History in Interwar India

Despite the resurgence in legal-historical scholarship on South Asia, to the best of my knowledge, no work has made any reference to the ways in which various Indians engaged in comparative constitutional thought in the interwar period. This unwritten and underappreciated history of comparative constitutionalism in colonial South Asia presents us with an exciting range of conceptual tools and empirical data with which to question some of the reigning assumptions in the scholarship on comparative constitutionalism there, and perhaps elsewhere. Sunil Khilnani, Vikram Raghavan, and Arun Thiruvengadam say in their field-defining work, Comparative Constitutionalism in South Asia, that the origins of comparative constitutional law in South Asia can be traced to the scholarship produced by foreign scholars in the late 1940s and early 1950s. Especially important were the Law Department at the School of Oriental and African Studies (SOAS) in London and the scholars affiliated with it, Alan Gledhill, Duncan Derrett, and Werner Menski.Footnote ⁸⁷ Khilnani, Raghavan, and Thiruvengadam’s joint introduction to their book is essentially a call to take the constitutionalism of other South Asian countries (basically, the nations of SAARC) more seriously and expand the study of the region’s constitutionalism to encompass more than just that of India.

While independence and drafting of the Indian constitution are watershed moments, a comparative approach to constitutionalism that ignores transnational influences, borrowings, selections, and interwar discourses on Indian constitutionalism must be inadequate. The general lack of awareness about the remarkable comparative thinking among Indian intellectuals and politicians in the interwar period has marred the historical and legal scholarship on Indian constitutionalism in general, and federalism in particular. This is clearest in the fact that, even today, there are few if any works on the Government of India Act of 1935, two-thirds of which found its way into the 1950 republican constitution. Important here are the structure of legal and historical education, coupled with a general aversion toward examining the roles Indian liberals and princes and their advisors—both much ignored and misunderstood groups in Indian history—played in the making of the country’s politics and constitutionalism. Also significant here is the role of a celebratory nationalism, implicit in these accounts, which considers the drafting of the Indian constitution to be the beginning of truly federal politics in India.

According to Sujit Choudhry, comparative constitutional law has, broadly speaking, been used mainly as a resource to help judges interpret constitutions. This includes the use of comparative law as law: “the use of foreign constitutions in the process of constitution-making.”Footnote ⁸⁸ The higher judiciary’s use of foreign laws to adjudicate constitutional issues is a better-known yet controversial aspect of comparative law. In the United States, textualists and conservative judges have been less receptive to foreign law and opposed to what Choudhry calls “migration of constitutional ideas.”Footnote ⁸⁹ Much of the existing scholarship on comparative constitutionalism in the United States and India dwells on the use of comparative law in legal interpretation.

The theoretical and epistemological questions raised by some of this literature seem related. They all point us to three broad approaches to comparative law: particularistic, universalistic, and dialogical. From a particularistic view, the historical and legal specificities of a nation are such that comparative law serves no useful function. From a universal perspective, by contrast, all laws share universal properties and are hence amenable to interpretation and assimilation regardless of their cultural roots. The dialogical approach, as advanced by Choudhry, is a technique that “stimulate[s] constitutional self-reflection” and helps one recognize the differences between constitutional systems so as to understand one’s own national constitution better. The cultural approach to comparative law advanced by Paul KahnFootnote ⁹⁰ and the functionalist and contextual approach put forward by Mark TushnetFootnote ⁹¹ cluster around the same set of epistemological questions.

The comparative proclivities of India’s interwar writers prefigure some well-known assumptions in the fields of comparative history and comparative constitutionalism. Their comparative exercises did not take any conception of the nation, or even the nation-state, as a given. They also had different relationships with the empire; some came from autonomous native states and others from areas directly ruled by the colonial state, and stridently argued against nation-states. In the absence of any claim for a nation-state, these writers could stay clear of cultural relativism and take a post-national view. Put differently, they did not consider cultural and national differences to be prerequisites for comparative constitutionalism. Ann Stoler has warned of the dangers of taking national differences as the basis of comparative histories of colonialism and the tendency to reduce “differences in colonial politics” to “European distinctions of national character.”Footnote ⁹² Instead, comparative colonialism should engage with the “strategies of rule” and “politics of knowledge,” or how categories and assumptions were created in the service of colonialism.Footnote ⁹³

For comparative thinking around future constitutions, as opposed to comparative thinking for constitutional interpretation, cultural and national differences are sometimes less important. Rather, it is premised on the belief that every successful constitution, old or recent, has lessons to offer those designing new ones, provided there are certain circumstantial similarities across the respective histories and political systems. Almost all of the comparative approaches to constitutionalism we have looked at from the 1930s demonstrate this. Despite India’s unique circumstances, produced no less by Manichean colonial rule, many contemporary observers saw value in conversing with the pasts and presents of countries like the United States and Germany. Especially so those who were looking for constitutional models to accommodate the claims of the princely states. They thought that the circumstances surrounding the states in Germany, and its tradition of safeguarding states’ rights, had much to offer toward the successful resolution of the Indian problem. Thus, beyond the historical and cultural factors, it was the presence and claims of the princely states, a circumstantial fact, that drove the push toward comparative constitutionalism in this early phase.

Indian intellectuals did not conceive of federalism or federation as a monolithic category. There was neither conceptual fixity nor united agreement on what federation meant in India. It remained a supremely ambiguous concept even as some made arguments for or against it at the Round Table Conference. Federalism, much like internationalism, could have been a “cluster-concept,” one to which “a number of ideas are conventionally associated without any single one or group of them constituting a core meaning.” Footnote ⁹⁴ Despite its ambiguity and fluidity, federalism was one metahistorical category that allowed Indian intellectuals to relate to the histories and constitutions of other countries. Federico Brusadelli has shown how certain Chinese intellectuals and warlords in the early twentieth century looked up to Switzerland as a federal model, only to discard it in the end as a “utopia” in favor of a more centralized state.Footnote ⁹⁵ Many of these Chinese intellectuals saw federalism in terms of specific aspects—such as local loyalty and provincial independence—and cared little about its other features. This was also the case among those Indian writers who focused more on states’ rights, insofar as they considered federalism a malleable concept that allowed them to selectively appropriate and translate a nation’s history and constitution to suit their own claims. As Philippa Levine has argued, one of the major points of criticism of comparative history has been that it relies on metahistorical categories.Footnote ⁹⁶ But this critique is problematic, since Levine herself shows that comparatists also make equal use of non-metahistorical categories that are local or decentered. Vernacular writers like C. S. Nair domesticated federalism for their readers, employing the metaphor of Travancore’s matrilineal family system. In these comparative discourses, local idioms and history were actively mobilized to contextualize and recontextualize metahistorical categories like federalism. By means of a comparative and “intersecting history” we can move past the problem of what Mrinalini Sinha calls the “simultaneous indispensability and inadequacy of European concepts.”Footnote ⁹⁷ The comparative focus on federalism helped Indian writers accept certain foreign ideals and principles and modify them for Indian conditions, but it also allowed authors like Prasad and Sharma to claim that India had possessed its own version of federalism for centuries.

The comparisons between India and Europe in these accounts did not elevate one unit of comparison over another. There is no apparent non-critical acceptance of any foreign models simply because they were foreign or Western. Differently put, it was a comparative approach with a prepositional emphasis: comparison of and not to. Footnote ⁹⁸ Comparing histories and political conditions in India and Germany, for instance, did not presume any hierarchical relationship in which one was the standard and the other the aspirant or deviant. This is similar to the “reciprocal comparative method” that Kenneth Pomeranz employed in his famous study The Great Divergence. Instead of viewing either side as the standard or the deviation, he saw “both sides of the comparisons as ‘deviations’ when seen through the expectations of the other.”Footnote ⁹⁹

At one level, comparison, whether of history or of law, is self-serving; some kind of self-interest sits at its core, more so in the context of comparative constitutionalism. Yet, the value of comparative analysis almost always transcends this self-interest. As Martha Nussbaum says, the comparative approach brought to bear on constitutionalism helps one understand that one’s own way of doing things is not the only way.Footnote ¹⁰⁰ This leads us to ask why we do certain things in certain ways as opposed to others, which in turn can lead us to realize that there are no natural ways of doing things but only ways that result from our deliberate choices. Thus, to a certain extent, comparatists are rationalists and maintain a critical attitude toward history. A country’s political system or ethical values cannot be seen as historical contingencies or mere habits that defy explanation. They are a result of considered choices, no doubt shaped by history but not always subservient to it. This is precisely the kind of comparative outlook that C. S. Nair, a Malayali intellectual, espoused toward constitutionalism. Constitutions and political systems were not to be designed from historical insights alone. He argued that the interwar constitutional changes in Austria and Germany clearly showed the need to move beyond the tyranny of history and embrace logic and reason. Comparative constitutionalism and comparative history are both susceptible to certain basic interplays that characterize the discipline of history: between history and reason, or structures and actions.

The comparative turn in interwar India took place in a global context. Beni Prasad opened his study this way: “Since the close of the World War in 1918, the framing and alteration of Instruments of Government have formed one of the most notable features of political life in Europe.”Footnote ¹⁰¹ He went on to talk about similar changes in the rest of the world, from China to the United States. This global resurgence in constitutionalism, when nations looked abroad for models and lessons in state-making and constitution-modeling, forms a necessary context for the comparative turn in interwar India. Donal Coffey’s work on the drafting of the Irish Constitution of 1937 directs us to the formative impact transnational constitutional ideas had on its composition. In particular, he examined the role played by German, Polish, and Portuguese constitutional ideas.Footnote ¹⁰² Coffey’s work is instructive as to the ways in which transnational constitutionalism was an inherent aspect of constitution drafting in many parts of the world during this period. The growing importance of treaties in interwar Europe (especially after the Kellogg-Briand Pact of 1928) and their ripples in India, along with a general turn toward international conferences and organizations, configure another global context for the comparative turn. The princely states employed some of the finest lawyers in England, Germany, and the United States to represent their cases in the federal debates around the Government of India Act of 1935. These men brought with them a different worldview of law and rights and challenged both colonial and nationalist views on India’s future constitution.

The traffic in federal ideas between Germany and India took place in the margins; they were part of neither mainstream anticolonial nationalism nor revolutionary internationalism, and consequently they had less impact. Yet, German constitutional ideas had a significant impact on how the princely states and Indian Muslims saw the future federation. The idea of states’ rights, wherein each state enumerates the subjects that they agree to cede to the center, as well as the differential representation princely states had in the federal legislature, were shaped by German theory. The legal memorandums of Bruns and Bilfinger, the German lawyers the Chamber of Princes hired, articulated a theory of safeguards that would remain with the princely states, big and small, throughout the 1930s and 1940s. The Reforms or Federation Department is full of files pertaining to each princely state negotiating what subjects they would cede to the center. These secretive, behind the scenes negotiations between the states and the British went on for years, even as they failed to bring about the federation. The Indian nationalists still accepted the idea of an instrument of accession that enumerated the powers of the central government. One can see the ideological influences of German state theory in the federalist advocacies of the princely states and in the instruments of accession that followed.

Regardless of whether German ideas generated tangible results, that these entanglements and comparative efflorescence existed in the constitutional and federal imageries of interwar India is significant in itself. They force us to view the history of Indian constitutional, legal, and political thought in a new light, beyond the confines of progressive nationalism or internationalism. In the constitutional realm, even nationalist-minded thinkers and jurists saw value in German lessons. B. N. Rau, the chief draftsman of the Indian constitution, while compiling the world constitutions, saw the “logical” nature of the Weimar constitution as C. S. Nair himself did.Footnote ¹⁰³ Donal Coffey has shown us that Weimar constitutionalism impacted Indian thinking on the balance of central and state powers, and on fundamental rights and state powers.Footnote ¹⁰⁴ It was not just conservative groups like the princes and Muslims who turned to Germany, but also progressives like the nationalists.

There is inherent globalism in the comparative turn if by “global” we mean heightened levels of integration and interdependence. As Sebastian Conrad says, the world of 1873 was less integrated and global than that of 1929, marked by a different “quality of entanglements.”Footnote ¹⁰⁵ Or, as Bruce Mazlish would observe, the social density, frequency of interaction, and overall levels of interdependence and interconnectedness in the two periods were quite different, suggesting different levels of globality.Footnote ¹⁰⁶ For Conard, comparative history, the comparison of two units, does not in and of itself mark the global unless we put the respective units into “systemic contexts” to which they both “relate and respond.”Footnote ¹⁰⁷ Further, the structural grounds on which these comparisons or connections take place will, in turn, affect the practices that constitute the connections. That is to say, whether the structure is one of colonialism, or nationalism in a free state, will bear on the kinds of ties forged. What does the structure of colonialism tell us about the influence transnational constitutional ideas had on the rise of Indian federalism in the late 1920s and early 1930s? For one thing, the absence of a unified national or homogenous space called the nation-state made these transnational borrowings less ideologically fraught. The empire, with its immense diversity and legal pluralism, did not permit easy identification of people as friends and enemies in the Schmittian sense. There was no uniform history that people either claimed or resisted. Moreover, each Indian group in the 1930s existed within circumstances that made them unique, be it their claims to sovereignty or the lack thereof. These various factors mean that the comparative constitutional imaginaries around federalism in the period were historically and structurally different from those in the 1950s around the free constitution of India.

If “global” is a kind of context and structure, then comparative constitutionalism in interwar India was inflected by it. Yet “global” and “comparative” coexist in utmost tension, and neither can stand for the other. As should be evident from what I have written here, “global” and “comparative” are analytical categories as much as empirical facts. For Siep Stuurman, the global as an analytical category is defined by the space and time of the analysis itself. One might say that the global is immanent to the analysis here. Paraphrasing his work, Samuel Moyn and Andrew Sartori write, “What makes [Stuurman’s] approach global is not the geographical spread of the concept or thematic but the fact that a comparison between geographically constrained spaces is possible even without a connection between them.”Footnote ¹⁰⁸ Comparisons are, first and foremost, analytical approaches. Comparison need not rest on similarity, nor should commensurability between units mean substantive similarity. The undertone of Marxian commodity theory and its approach to universal commensurability is an inescapable reference here. Whether comparative lenses help us see similarities or differences, what they should do is help us understand the structures on which comparisons take place. In that sense, both the global and the comparative share a common endeavor, to reveal connections while also elucidating structural specificities constituted by historically specific practices.