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India’s Ancient Constitution, Part 1

Did India have an Ancient Constitution worth respecting, or not? Did the British uphold it, or destroy it? For a Libertarian or Burkean Conservative Hindu, these are important questions to consider dispassionately. The answer actually matters. If India had an Ancient Constitution which was destroyed when the British came, then much of India’s existing constitution, a combination of British laws and the arbitrarily imposed theories of Ambedkar, is an usurpation of the ancient rights and privileges primordial to the land and the race. The very basis of the Indian state is in question in this case. On the other hand, if India had no such Ancient Constitution, or if it was destroyed by the Mughals and restored by the British, then the period of British rule was a period of liberation from Oriental Despotism wherein India was Brought Into History as Hegel might have said. This is a somewhat false binary, but I present it anyway to show some of the dramatic potential conclusions we can come to.

Its also important to consider what such a concept as an Ancient Constitution really even means. Is it a principle of abstract justice which is universal? Or do different societies create internally valid social compacts which might differ from one another in legitimate ways? Or is this an incorrect way of framing the question?

I’m not really going to try to definitively settle the historical question in this post. I’m still doing research on the topic and will put out my full view on it later if I think I gain enough information to make such a judgement. I’ll instead just briefly discuss what the idea of an Ancient Constitution meant to a few thinkers in the context of India. I’ll look at Bose, Burke, Roy, and Naoroji.

Subhas Chandra Bose .jpg

Portrait of Subhash Chandra Bose. Image source:


I considered this when I began reading Subhash Chandra Bose’s The Indian Struggle and encountered the following passage early on:

“Indian literature from the earliest times abounds in references to public bodies called ‘Paura’ and ‘Jana-pada’. The former correspond to our modern municipalities — while the latter probably mean non-urban public bodies of some sort. Moreover, owing to the existence of caste, the people were self- governing in social matters, through a system of caste-democracy under the control of a ‘Panchayat’.11 There were popular ‘Panchayats’ in India since the oldest times, not only for carrying on the village administration — but also for administering the caste-regulations and maintaining discipline within the caste. Throughout the succeeding Buddhistic period the people enjoyed large self- governing powers. During this period, the ‘assembly’ and the ‘vote’ were popular institutions. The advent of Maurya imperialism did not encroach on these powers nor did it destroy the republics which still continued to flourish. The Empire of the Guptas and of Harsha proceeded on the same lines. Under the Mohammedan rulers, though there was unbridled autocracy, the Central Government rarely interfered in provincial or local affairs. The governor of a ‘Suba’ or a province was of course appointed by the Emperor, but as long as revenue was regularly sent into the imperial coffers, the provincial administration was not interfered with in any way. Though occasionally a fanatical ruler would attempt proselytisation, on the whole the people enjoyed complete freedom in religious, cultural and social affairs, no matter who occupied the throne at Delhi. British historians are without exception guilty of overlooking this fact and when they loosely talk of despotism to which orientals are accustomed, they forget that behind this cloak of despotism, the people enjoyed a large measure of real liberty, which they have been denied under British rule. Both before and after the Aryan conquest of India, autonomous village institutions have been a consistent feature of the public life of India. This is true as much of the Aryan kingdoms of the north of the Tamil kingdoms of the south.12 But under British rule these institutions have been destroyed and the long arm of the bureaucracy stretches into the remotest villages. There is not one square foot of land where the people feel that they are free to manage their own affairs.”

See, this is a very particular way of framing British domination of India, one which implies that India had an Ancient Constitution in the same way in which Britain did. A primordial one which was perfectly functioning up until British rule at which point it was smashed. The language here seems to imply that though primordial and upholding concepts like caste, concepts which westerners would recognize as legitimizing such as the vote, religious freedom, and “liberty” were present in these institutions.


Portrait of Edmund Burke. Image Source:


Burke is often credited with the first application of this concept of India, so then I went back to reading about him. Burke’s actual big speech on Warren Hastings took 9 days to deliver, and consists of about 400 pages of small text. You can find it free online if you have interest, but I’ll just quote secondary literature on it for the sake of brevity and clarity.

Regarding the testimony of Edmund Burke at the trial of Warren Hastings, Mithi Mukherjee has written:

“This [prior scholarship of Burke] has resulted in a neglect of what was arguably the more radical and innovative aspects of his thought-his effort in the historical context of the eighteenth century to go beyond the territorially bounded discourses of political sovereignty and institutional practices of nation-states and conceptualize a form of deterritorialized juridical-imperial sovereignty that would be exercised not in the pursuit of the exclusive interest of the colonizing nation but, rather, in ensuring that colonial administration in India remained firmly grounded in “native” society and prevented from exercising absolute and arbitrary power over it.” (1)

Mukherjee has a bit of a strange take on it herself. She sees it incorrect to misconstrue Burke purely as a conservative of the “Conservatism in One Nation”, paleo-conservative or libertarian type (these are my words, not hers). Rather she sees him as also containing the precursor ideas to a modern sort of internationalism as represented by the U.N. or the general soft neoliberal, western-capitalist hegemony, as opposed to a form of imperialism which essentially consists of basically extending the zone of sovereignty of an existing nation into another nation. Thats kind of plausible. Burke does after all appeal to abstract principles of justice:

“This great law does not arise from our conventions or compacts; on the contrary, it gives to our conventions and compacts all the force and sanction they can have: it does not arise from our vain institutions. Every good gift is of God, all power is of God; and He who has given the power, and from whom alone it originates, will never suffer the exercise of it to be practised upon any less solid foundation than the power itself.”


“This arbitrary power is not to be had by conquest. Nor can any sovereign have it by succession; for no man can succeed to fraud, rapine, and violence. Those who give and those who receive arbitrary power are alike criminal; and there is no man but is bound to resist it to the best of his power, wherever it shall show its face to the world.”

But these are basically natural rights arguments. Its hard to draw a straight line from here to the U.N. But they do legitimate some form of imperialism. Namely rule of another country in accordance with natural liberty and presarvatory of India’s ancient constitution. (Something which an Indian “Nationalist(?)” like Ram Mohan Roy would probably have been fine with by the way, had it been enacted). That view is purported by Daniel O’Neil and Robert Tavers, here:

In this context, as Robert Travers has shown, Burke’s vision of Muslim India was profoundly shaped by the continuance of Mughal power on the subcontinent. Influenced by his (then) friend Phillip Francis, who had served as a member of the Supreme Council overseeing affairs in Bengal after the passage of the Regulating Act in 1773, Burke in effect overlaid the British theory of the ancient constitution on Mughal India. Burke and Francis developed a Whiggish view of the ancient Mughal Empire as a limited monarchy governed by the rule of law that also applied to private property, such that it preserved the ancient rights of the large Hindu landowners (or zamindars) in Bengal. While the zamindars could either be Hindu or Muslim, Burke focused on the former as a kind of landed aristocracy with historically preexisting property rights that had been protected under the aegis of wise Mughal governors, whose power they also helped to limit.

In developing this situation, Burke argued that when the Company acquired the diwani from Shah Alam II in 1765, they therefore necessarily stepped into the framework of rule laid down under the Mughal Empire and its ancient constitution. As he told Parliament at the opening of Hastings’s impeachment trial: “For when the Company acquired that office in India, an English Corporation became an integral part of the Mogul Empire. When Great Britain assented to that grant virtually, and afterwards took advantage of it, Great Britain made a virtual act of union with that country, by which they bound themselves as securities for their subjects, to preserve the people in all rights, laws and liberties, which their natural original Sovereign was bound to enforce, if he had been in a condition to enforce it”

Burke thus analogized Britain’s ancient constitution–with its protections of historically derived rights (including property rights), the rule of law, and a set of individual liberties–to Mughal India. He depicted the British as the inheritors of a Muslim constitutional framework in India much like their own, which they were duty bound to protect. Indeed, Parliament had to act as a trustee that virtually represented its Indian subjects, who had previously been governed by their own ancient constitution. In this fashion, Burke countered Warren Hastings’s claim to be acting justly albeit despotically in India by recourse to the eighteenth century (Orientalist) notion of Oriental despotism. In taking this approach, Burke was also further elaborating his rival vision of an Ornamentalist similarity between Indian and British civilization, and doing so in striking terms.

In eighteenth-century Western political thought, the view that (unlike in Europe) all “Oriental” governments were marked by arbitrary and absolute rule, excessive opulence, sensuality, and lack of development–and that Muslim governments were particularly egregious instances of this general trend–was pervasive. Burke’s writings and speeches on India flatly denied this view, which was influentially articulated by Montesquieu. This was an important argumentative move because, in his defense, Hastings had excused his excessively authoritarian measures by asserting in part that he was simply hewing to local custom and tradition, governing India in the way that people in that part of the world had always governed. As Hastings infamously put it in his opening speech: “The whole history of Asia is nothing more than precedents to prove the invariable exercise of arbitrary power/“ In his long nine day “Speech in Reply” at the end of Hastings’s impeachment trial in 1794, Burke reiterated at length one of the prosecution’s main lines of argument–namely, that a close examination of the historical record demonstrated no such tradition of Oriental despotism in India, particularly in Mughal India. Burke declared the contrary: “In short, that every word that Montesquieu has taken from idle and inconsiderate Travellers is absolutely false.“

A PS on Burke. He saw the East India Company as the enemy of traditionalism not just in India, but in Britain as well. Normally that is the focus of the study of Burke’s speech in the trial of Hastings, so I thought I should mention it:

“In the final pages of his study, Marshall remarks that “Burke later became convinced that the punishment of Hastings in India was necessary not only for its effect in India but also for its effect in Britain itself” and that the India-returned Nabobs were to be regarded as “the corrupters of the English political system, and later as potential recruits to Jacobinism.” (2)


Statue of Raja Ram Mohan Roy in College Green, Bristol. Image Source: Wikimedia Commons

Ram Mohan Roy:

Ram Mohan Roy seemed to have a similar position. In my reading anyway, he seems to only have had a problem with British rule insofar as it violated the natural liberties of India.(obviously a very large “insofar). He believed that India had an ancient constitution, but that the caste order had degraded to the point where it was no longer legitimate, and that Mughal rule was a sort of oriental despotism as Warren Hastings and eventually, Marxists would argue. In this sense British rule offered the possibility of restoring India’s Ancient Constitution by reviving its “common law” Panchayat system, re-enforcing the ancient protections for the rights of women, the separation of powers which the Varna system implemented, and so on, while also improving and “amending” the existing constitution by implementing British concepts of law insofar as they complied with the Natural Law, i.e. insofar as they were fair to all parties and fostered a stable and just legal order. The breadth of Ram Mohan Roy’s writing on this is so vast that I’ll just link the volume of his works in English which deal with politics and British rule for you have have a look for yourself. The problem is that Roy doesn’t outline a systematic theory he just addresses a bunch of individual cases. But here is a quote of the type of thing I’m referring to which comes up in a discussion of the Panchayat system (pages 27-28 of the above linked text):

31. Q. Is trial by jury (or any thing resembling it] resorted to at present in any case?

A. The principle of juries under certain modifications has from the most remote periods been well under stood in this country under the name of Punchayet.

32. Q. What is the difference between the Jury system and the Punchayet P

A. The Punchayet exists on a very defective plan at present, because the jurors (members of the Punchayet) are not regular in their meetings, have no power to compel the attendance of witnesses, unless by appealing to the court ; they have no judge to preside at their meetings and direct their proceedings, and are not guarded in any manner from partiality or private influence. They are in fact at present only arbitrators appointed by the court with consent of the parties in a cause, each party nominating one arbitrator and the judge a third ; and sometimes both parties agree to refer the decision of the case to one arbitrator.

33- Q- Why and when was the Punchayet system discouraged ?
A. It has not been totally discouraged., but rather placed on a different footing. In former days it was- much more important in its functions. It was resorted to by parties at their own option, or by the heads of tribes, who assumed the right of investigation and decission of differences ; or by the government, which handed over causes to a Punchayet.

34. Q. Do you really think the introduction of any system of Jury trial or Punchayet would be beneficial ?

A. Undoubtly, as shewn by the 3rd Par. of my answer to Question 30. Since a Punchayet composed of the intelligent and respectable inhabitants, under the direction .of a European judge to preserve order, and a native judge to guard against any private influence, is the only tribunal which can estimate properly the whole bearings of a case, with the validity of the documentary evidence, and the character of the witnesses, who could have little chance of imposing false testimony upon such a tribunal.

35. Q. Do you think it would be acceptable to the inhabitants?

A. As the Punchayet even in its present very imperfect form is still practised by the inhabitants, it would without doubt be much more so, were it reduced to a regular system, guarded by proper checks, and dignified by judicial forms, which would inspire the whole community with higher respect and confidence for this ancient institution. But whatever length its popularity may go, it is the only system by which the present abuses consisting of perjury, forgery, and corruption can be removed.

Ultimately this is what Roy was after. A form of British colonialism which was compliant with natural liberty. He didn’t get it, and maybe he could be rightly criticized for even thinking such a thing was a practical possibility (though I would argue that he was being overly obsequious in order to curry favor), but I merely want to note that this idea existed in his mind. He had a notion of an Ancient Constitution, but a view it which differed historiographically from Burke insofar as it considered the state of India during late Mughal rule to be fairly degraded.


Portrait of Dadabai Naoroji. Image Source:

Dadabhai Naoroji:

To my knowledge Naoroji didn’t write as much in detail about this subject historiographically in the way Burke and Roy did, but his view is in line with the more global-cosmopolitan interpretation of Burke wherein the Ancient Constitution itself isn’t a primordial concept, but is a principle of abstract justice equated with “British-ness” used in an esoteric sense. I’ll just include what Mukherjee says on the subject:

Dadabhai Naoroji published Poverty and Un-British Rule in India, a book that was to be crucial to the nationalist understanding of the colonial state in India. As the first detailed theoretical and critical analysis of the economic and administrative policies of the British government in nineteenth-century India, it related widespread poverty in the subcontinent to the drain of wealth from the colonized country to the metropole and to the destruction of its indigenous industry. The primary purpose of this critique was to expose colonial governance in India as “un-British rule.”

The deployment of the term “un-British” raises a critical question. Under what historical and discursive conditions could one make a critique of British colonial government in India as being “un-British,” since, by being “un-British,” Naoroji could clearly not have meant rule by a non-British people? … Naoroji was not referring to the people in charge of the government (who were British), but the actual mode of governance, and by extension the term “British” refer to the fundamental principle on which, he thought, it ought to have been based. In fact, he was precisely critiquing the tendency of the government to identify colonial rule in India with rule by the British people, thereby reducing the colony to the status of mere property in the hands of the latter. Naoroji’s critique assumed a homology between the terms “un-British” “unjust.” British rule meant the rule of justice, and any deviation fro principle of justice would transform it into an “un-British” despotic rule.

Thus, in the discourse of Naoroji and the Indian National Congress, term “British” did not simply refer to the territorial or national identity of a people but was elevated to the status of a principle. In this disourse on the one hand, the term British came to be deterritorialized from a particular geographical, legal, and political unit and reconstituted in as a principle. On the other hand, justice itself was deterritorialized from the context of English common law as a system of national laws a constituted in the idea of empire. (3)

The inevitable implication of this sort of reasoning and esoteric use of the concept of “British” is that it is possible in some respects that India prior to British rule was actually more “British” in the esoteric sense. As Naoroji states:

“Whatever may be the merits or demerits of “The State and Government of India under its Native Rulers,” one thing is certain, that the greatest evil of the present un-British system of British rule in India did not exist under the Native rulers–viz., the unceasing and ever-increasing “bleeding” and drain of India by “the evils inseperable from the system of of a remote foreign domination” (579, Poverty and un-British Rule in India)

Yet Naoroji had a fairly negative view of ancient rule in India. It would seem that he wouldn’t put much stock in the notion that India had an Ancient Constitution worth defending insofar as it was inferior to contemporary British legal institutions and norms, except that this is considerably counterbalanced by the superiority of the Ancient Indian Constitution in the one crucial respect that the system of rights and obligations was far less expropriative.

Next Step:

So far all I’ve established is that such a concept as an Ancient Constitution had intellectual currency in Britain and India during the Company period and the Raj, and that it does refer to real institutions which existed in India which were seen as compliant with more universal principles of justice. The idea is at least plausible, but it should not be assumed to be true without proof. The next stage of this analysis (should I choose to finish it) will entail an examination of the types of laws which actually existed in ancient India. I’ve already been reading the Dharmashastras, the Mughal court histories, the British legal texts, and the land revenue histories.

Based on this preliminary reading my conclusion would be that some synthesis of Bose and Roy’s views is essentially the correct one. Of course, one was being polemical for the purpose of inspiring nationalist courage, and the other was being obsequious to win favors from the British, so it makes sense that the truth lies between these two white lies.

It seems as though there were existing philosophical principles governing obligations and rights of subjects and rulers dating back into India’s ancient history. Coherent, stable, legal institutions existed to preserve those up until the Mughal period, though Roy is correct that they did become more arbitrary and that the Hindu system degraded during this period. It seems as though the British came into India with the intention of largely preserving its ancient system of laws, rights, and obligations if only out of convenience. However they couldn’t help themselves from meddling and the more they bungled their modifications the more incoherent the system got until eventually the Utilitarians and Statists just decided to use India as an experimental social engineering project. However, there were important ways in which the British retained aspects of the Ancient Constitution. Anglo-Hindu law, Anglo-Mohammedan law, some aspects of the land tenure system, some aspects of the military particularly pertaining to the Sikhs and Ghorkas, and the interactions with Princely States all are examples of this. It is very difficult to talk about these things in blanket terms.

1 (Justice, War, and the Imperium: India and Britain in Edmund Burke’s Prosecutorial Speeches in the Impeachment Trial of Warren Hastings, Law and History Review, Mithi Mukherjee,  Vol. 23, No. 3 (Fall, 2005), pp. 589-630, p. 591)

2 Jacobinism in India, Indianism in English Parliament: Fearing the Enlightenment and Colonial Modernity with Edmund Burke, Sunil Agnani Source: Cultural Critique, No. 68 (Winter, 2008), pp. 131-162, p. 136

3 Mithi Mukherjee, p. 596-595

This post first appeared on Videshi Sutra, please read the originial post: here

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India’s Ancient Constitution, Part 1


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