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The Government of Nepal Act 1948 is one of the few constitutional legal instruments before the 1950-51 revolution that contained a preamble. It is meant to be an introductory and expressionary statement explaining the document’s object, purpose, underlying philosophy and the reasons for its enactment. As a preliminary part of the statute, the preamble contextualized the contents of the rest of the document for its readers.

The Government of Nepal Act 1948 is one of the few constitutional legal instruments before the 1950-51 revolution that contained a preamble. It is meant to be an introductory and expressionary statement explaining the document’s object, purpose, underlying philosophy and the reasons for its enactment. As a preliminary part of the statute, the preamble contextualized the contents of the rest of the document for its readers.

A preamble may be defined as any statement that follows the title of the constitution and precedes the numbered articles. The content of the substantive preamble, however, is not easy to decide. Orgad (2010), for example, suggests that a substantive preamble presents “the history behind the constitution’s enactment as well as the nation’s core principles and values.” A preamble may not be explicitly termed “Preamble” or even be unnamed, and yet, serves the same purpose. On the other hand, even if labeled as something else, such a text may qualify as a preamble anyway.

There is no specific rule about the length of a preamble, and evidently, they vary greatly in length, with an average of 300 words, according to a researcher. Its length is unrelated to the length of the body of the constitution. The text of the preamble may often contain very lofty ideals and aspirations. Due to this fact, it may not necessarily represent the reality of the actual constitutional order. Very often, it may contain ideological fictions, or even deliberate distortions of facts, in a bid to legitimize the constitution.

According to Oxford English Dictionary, the term “preamble” comes from the Latin word “preambulare,” meaning “to walk before.” It defines a preamble – in the context of law – as an introduction or kind of foreword to a legal act. Wim Voermans, Maarten Stremler & Paul Cliteur make it clear that preambles take different shapes and their authors may use them for different reasons. The introductory statement can provide the purpose and rationale of the law, or elucidate its intention. Sometimes, it highlights the assumptions and principles that the drafters found particularly important. A preamble can also place the law in its historical and political contexts. The inclusion of a preliminary statement into a law can be traced back to a very early phase in the evolution of law. The Code of Hammurabi, the Babylonian code of law of ancient Mesopotamia, dated to about 1754 BC, contains a preamble that evokes the greatness of the ruler.

In British law and constitutional traditions preambles have been adopted for a long time as a means of communicating abstract principles of the superiority and identity of the emperorship. This was especially true during the High and Late Middle Ages. According to Wim Voermans, Maarten Stremler & Paul Cliteur, the preambles legitimized the rule of the monarch. For example, a preamble to a law created by Charles V highlights how the virtue of prudence is to be guarded by rulers and governors, as they have the knowledge about past, present, and future events. “With this virtue [of prudence] and by means of it, with justice, strength and moderation, all kingdoms must be governed,” it reads. Currently, in the United Kingdom, the practice of including a preamble to a statute has been replaced by the practice of using long titles, which describe the purpose or scope of the legislation.

Then, as noted by Wim Voermans, Maarten Stremler & Paul Cliteur, the tradition of including preambles for significant laws were eventually faded out in continental Europe, with the French National Assembly dictating that all decrees were to be printed without one. This was because people perceived that there was no need to explain why the decree was being made when the people themselves, and not rulers, were making them. Only fundamental laws, new constitutions, were to contain preambles, and this trend persisted through most of the nineteenth century. In the twentieth century, however, the trend was revived yet again.

The Act of 1948 is like a constitution in its makeup. A Code, called Nyayavikasini or Manav Nyayashastra, issued by King Sthitiraj Malla in 1436 was a significant effort in Nepal’s history to codify its laws and customs. Yet, it did not contain a preamble. Instead, in its place, the Code referred to the Dharma and the character of human beings. The Rules framed and issued by King Mahendra Malla (1554-1568), the exact date of which is not clear, also lacked a preamble, but mentioned that these Rules appeared in the King’s dream in the midnight of the bright half of lunar month and were sent by Goddess Taleju. Rules framed and issued by King Ram Shah (c.1606–1636), who was well known in the hilly region as a reformer of the justice sector, also lacked a preamble. His famous Rules on Decorum of the Courts also enter into the subject without any preambulatory note.

Rules issued by King Rana Bahadur Shah in 1806 were accompanied by a preamble. This preamble maintained that these Rules shall come into force all over the country from west of the Kanaka-Tista and east of Mahakali and that justice shall be dispensed based on law and without any favour, bribery and corruption. The Rules on Abolition of Sati, issued on 1877 by Prime Minister Bir Shamsher, were without preamble. It was addressed to the concerned officials straight, without any philosophical note.

In 1854, when the National Code (Muluki Ain) was codified and enacted, it contained a preamble that emphasized uniformity within the country in the application of laws. It was a powerful preamble that clarified that the Code applied even to the Prime Minister of Nepal. The Land Management Rules issued by Bahadur Shah, the youngest son of King Prithvi Narayan Shah, in 1791 contained a preamble. However, the said Rules were issued more as a decree than a matter of principle. Bahadur Shah issued these Rules as a regent (1785–1794) for the minor king at that time.

Prime Minister Chandra Shamsher’s appeal for the abolition of slavery in Nepal on November 1924 was a great text, but then it was not addressed by the Rules. The last paragraph of his appeal concluded: “With earnest prayers to God that He may give us all wisdom to select the proper course, courage to pursue it, ability to perform our allotted part in it and turn the heart of all to feel for and incline us to help those held in vile bondage, let me bring this long discourse to a close, thanking you for the patient hearing you have given to it and beg with hope that, with God overhead and heart within, we shall be able to achieve success in the good cause in which we are all engaged.”

All these examples show that Nepalese statues, notwithstanding their variations in terms of power and authority, were either without preamble or, even when there were exceptions, they were not befitting of the standards they deserved. They were not meant to open the minds of the makers of the statutes as to the mischiefs which were to be remedied, and the objectives which were to be accomplished by the provisions of the statutes. In some instruments, the notes at the top of the statutes were addressed to the administrators and judges, who were supposed to implement such statutes. They were thus to be as effective as the main part of the statutes, and were not introductory statements stating the reasons and intent of what followed.

In this background, the Government of Nepal Act, which was perceived as the Constitution, was the first constitutional legislation in Nepal with a modern preamble. It was a preamble with a purportedly constitutional manifestation. It was probably also the first statute that used the word preamble in Nepal. It not only takes stock of the new law that follows, but is substantive, uses aspiring language, and provides a basic orientation about the document itself. Setting out a preliminary statement, it gives reasons for why the constitution is being adopted, its purpose and its justification. The preamble was enacted at the same moment as the constitution.

The Preamble of the Act of 1948 explicitly mentions that the Act was being promulgated by Maharaja Padma Shamsher, the hereditary Rana Prime Minister, “by virtue of the supreme authority vested” in him “through the instruments of their sacred Panja-patras” by the Kings of Nepal, dating from the year 1903 onwards, delegating all powers of the state upon the contemporaneous Rana Maharajas. The preamble does not mention the sovereignty of the people or their constituent power as such. It does not refer to popular will, democracy or human rights. However, it refers on the hereditary prime minister’s “fervent desire” to pursue all possible social, economic and political developments to bring Nepal in line with the advanced nations of the world and give the country its rightful place in the comity of nations. While keeping from referring to the country as Hindu state, he describes it as “the sacred country of Lord Pashupatinath,” the most revered Hindu god in Nepal.

Even though the preamble does not express any commitment to democracy, it does, however, express commitment to resurrect Nepal’s ancient ideals of the Panchayat and other similar institutions. It maintains that “it is our declared policy to provide for the increasingly closer association of our dear people in every branch of administration and, thus, bring about enhanced prosperity and happiness to our people.” In this pursuit, the preamble emphasizes that progress in giving effects of this policy can only be achieved by successive stages. This process must be guided by the cooperation received from those to whom new opportunities have been offered and by the extent to which further confidence can be reposed upon their sense of responsibility. The preamble explicitly states that Prime Minister Padma Shamsher considers it to be expedient that immediate steps in these direction be taken. He then ordains and promulgates the Constitutional Act under his own authority, and without the consent of the King.

The preamble of the Government of Nepal Act was a part of the main body of the constitution, rather than merely a “preface” or “introduction.” Therefore, it was likely that this would affect the legal status that courts attribute to the preamble. With a legal status, the preamble is expected to be “law,” just like the main part of the constitutional document.

As a final note, however, it must be emphasized here that the textual analysis of the preamble of Government of Nepal Act, as every other constitutional or statutory instrument, depends on its context and that, as a consequence, grasping its meaning requires contextual background information. This may include the relevant setting’s history, social and political reality, legal system, and so on. However, textual analysis in itself is a necessary and valuable first step towards understanding constitutional preambles.

[This article is part of the research work the author is conducting on the first Constitution of Nepal, issued in 1948]

The British constitution has been the source of inspiration for many countries in the world. It had a long and arduous history. The Ranas of Nepal knew about the British constitution and its parliamentary system. At times, the Ranas connived that they too had the desire to introduce a similar system in Nepal. Padma Shamsher, for example, talked about the parliamentary system in 1947 very clearly. The issue here is to what extent his Government of Nepal Act 1948, which he so passionately introduced, as the first Constitution of Nepal, was influenced by British traditions.

The British constitution has been the source of inspiration for many countries in the world. It had a long and arduous history. The Ranas of Nepal knew about the British constitution and its parliamentary system. At times, the Ranas connived that they too had the desire to introduce a similar system in Nepal. Padma Shamsher, for example, talked about the parliamentary system in 1947 very clearly. The issue here is to what extent his Government of Nepal Act 1948, which he so passionately introduced, as the first Constitution of Nepal, was influenced by British traditions.

The current name of the country, the United Kingdom of Great Britain and Northern Ireland, was officiated in 1927, but the constitutional laws and institutions developed gradually via a long and extended process before this date. The Constitution of the UK, as it developed over time with multifarious efforts, reflecting the relative stability of the British Government, is not contained in a single constitutional document. It is comprised in several resources. Thus, many people misleadingly claim that the UK does not have a constitution.

The British Constitution is based on various parliamentary statutes, judicial precedents, conventions, and other sources, which collectively provide constitutional laws and institutions. They include, but are not limited by, historical statutes such as the Magna Carta of 1215 and the Act of Settlement of 1701, laws and customs of parliament, political conventions, case law, and constitutional matters decided in a court of law. Such instruments came up in the context of different struggles in history.

Constitutional experts, such as Walter Bagehot and A.V Dicey, who have written on the subject, clarify the theoretical advances of these sources. Books by William Gladstone, Benjamin Disraeli and Lord John Russell, parliamentary manuals by Walter Bagehot and Erskine May, popular histories by Henry Hallam and Thomas Macaulay, and scholarship by John Stuart Mill, Henry Brougham and A. V. Dicey all contributed to constitutional thought. Dicey’s Law of the Constitution, Bagehot’s The English Constitution, William R. Anson’s Law and Custom of the Constitution and May’s Parliamentary Practice could be included as major works of authority at the time of Padma Shamsher. These books can be referred to for purposes of ascertaining what the law of the constitution is even now. It thus makes it clear that the British constitution very much remained an ‘uncodified,’ rather than an ‘unwritten,’ constitution. The first striking factor is the evolutionary nature of the British Constitution. There has been a continuous process of inversion, reform and amended distribution of powers.

Milestones

The most important historical source of constitutional law and principle of the modern UK is the Magna Carta of 1215. Taxes levied by Richard I, and his successor King John, to pay for the wars led to intense discontent in England, to that extent that the aristocracy forced the King to sign the Magna Carta. This was a commitment to hold the ‘common counsel’ before imposing any taxation. The king was required to hold courts at a fixed place and trials according to law or before an accused’s peers. He was required to guarantee free movement of people for trade and to return their common land. These changes were happening in the country for the first time.

King John defied the Magna Carta within just six months. The discontent among the people continued. It became a tool for renegotiation between the ruler and the ruled. In the process, it was reissued in 1216 as well. The commitments on common land were soon recast in the Charter of the Forest 1217, signed at St Paul’s by King Henry III. These documents established that the monarch, even with apparent authority from God, was bound by law. The Magna Carta remains ‘the nearest approach to an irrepealably “fundamental statute” that England has ever had. ‘This is the version that is remembered even today. It defined the nature of monarchical rule in England, ensuring in law the principle that a king governs only with the consent of his people. A few of the provisions of the Magna Carta remain on the statue book, but this legislation nonetheless continues to possess considerable symbolic importance. Not just in England, but the ideals it expressed influenced the development of law and liberty throughout the world.

Under King Henry VIII, to seal a divorce from Catherine of Aragon and marry Anne Boleyn (whom he later beheaded for supposed infidelity), the Church of England was declared separate from Rome in the Act of Supremacy 1534, passed by the Parliament of England. The King replaced the pope as the head. The 1558 Act declared Queen Elizabeth and her successors as the Supreme Governor of the Church. Royal Supremacy is specifically used to describe the legal sovereignty of the civil laws over the laws of the Church in England. The 1534 Act marked the beginning of the English Reformation, giving rise to a series of events in 16th century England by which the Church of England broke away from the authority of the Pope and the Roman Catholic Church.

Charles I, another authoritarian ruler, succeeded to the throne in 1625. He resisted parliament and ignored the rights of his subjects, fervently asserting a divine right, including the ability to levy tax without Parliament. Edward Coke, who is considered to be the greatest jurist of the Elizabethan and Jacobean eras, decided to curtail him and argued that Charles’s actions violated the liberties afforded to his subjects by the Magna Carta. He drew up a new document, the Petition of Right, which turned the charter’s core principles into constitutional law. Yet Charles wouldn’t be constrained for long, and civil war ensued.

The Magna Carta’s legacy of holding power accountable reached a difficult crossroad. The people demanded the King to abide by the Magna Carta, levy no tax without Parliament, not arbitrarily commit people to prison, not have martial law in times of peace, and not post soldiers in private homes. All these rights reflected the needs of the contemporary generation. Charles I responded by shutting down or proroguing the Parliament and taxing trade without authority. Yet, he was not strong enough to contain the demands of the people.

The civil war between monarchists and parliamentarians became unavoidable. The civil war in 1642 culminated in the capture and execution of the King outside the banqueting house in Whitehall in 1649. It was done by the New Model Army led by General Oliver Cromwell. The republican government was then established through the Parliament. The experiments in the republican government had its own problems. Cromwell took office as the lord protector in 1653. He happened to be an unsuccessful ruler. After his death, the monarchy was restored with Charles II in 1660. The instability was not over. His successor, James II, again attempted to assert divine right to rule. In 1688, the Parliament ‘invited’ his replacement with a King and Queen, William and Mary of Orange.

It wasn’t until 1679 that the principles of the Magna Carta that “no free man will be seized or imprisoned … except by the lawful judgment of his equals” became part of the law. Habeas corpus ensured that the state could not arbitrarily imprison people without the support of the law. If an individual was imprisoned without charge, he or she now had the right to challenge his or her detention before a judge. A landmark in English legal history, these changes proved that the Magna Carta had the power to influence the nation’s law some 300 years later and remained on the statute book.

The Glorious Revolution, which was a great point of departure in the English constitutional history, took place when William of Orange took the English throne from James II in 1688. The event brought a permanent repositioning of power within the English constitution. The Revolution confirmed the Parliament’s supremacy over the monarch, represented by John Locke’s Second Treatise on Government (1689). The Bill of Rights 1689 recorded its fundamental unit of right in “person” and that the “election of members of Parliament ought to be free.” This laid the foundations for a peaceful unification of England and Scotland in the Act of Union 1707. Ireland was added in 1801, but the Republic of Ireland formally separated from the UK between 1916 and 1921.

A series of cases from Sir Edward Coke, the Chief Justice of the Common Pleas and then King’s Bench courts at that time, denied that the King could pass judgment in legal proceedings and held that the royal prerogative was subject to the law and could not be expanded. Coke CJ went even further in Dr Bonham’s case, holding that even that “the common law will control Acts of Parliament. Though supported by some judges, the idea that common law courts could nullify Acts of Parliament was rejected, and the common law was formally placed under the King’s control in the Earl of Oxford’s case. This power transferal established that equity (then administered by the Lord Chancellor in the House of Lords) was above common law. Coke fell from favor and was removed from judicial office.

The Bill of Rights 1689 was proclaimed with a Claim of Right Act 1689 in Scotland. It cemented parliamentary sovereignty. As well as reaffirming the Magna Carta, the Bill of Rights states that the ‘pretended power of suspending laws or the execution of laws by regal authority without consent of Parliament is illegal’, that the ‘election of members of Parliament ought to be free’, and that the ‘Parliament ought to be held frequently.’ The Crown could neither raise money nor keep a standing army without Parliament’s consent. The Bill of Rights also enacted the principle of the freedom of speech in Parliament and that what is said in Parliament cannot be impeached or questioned in any court or place outside of Parliament. The justification for the government itself, encapsulated by John Locke, one of the most influential of Enlightenment thinkers, in his Second Treatise on Government, was the protection of people’s rights: “lives, liberties and estates.”

Many of the provisions of the Bill of Rights and the Claim of Rights still shape the law. In 1703, the decision in Ashby v White established that the right to vote was a constitutional right. The concept of parliamentary sovereignty began developing as the cornerstone of the constitution. The Parliament proceeded to set up a system of finance via the Bank of England Act 1694. Similarly, the Act of Settlement 1701 created an independent system of justice. Judges were salaried and could not be removed, except by both Houses of Parliament if they maintained “good behavior.” This change reversed the preceding provision that a judge’s position was held at the discretion of the monarch. No person who had an office under the monarch, or received a pension from the Crown, was to be a member of Parliament. This provision was inserted to avoid unwelcomed royal influence over the House of Commons, the lower house of the Parliament. The Crown had to be Anglican according to the Act of Settlement. The line of succession to the throne, to preserve the Protestant succession, would pass on to Sophia, James I’s granddaughter and the first cousin to Charles II and James II. Sophia’s son, George I, became king in 1714 and his descendants, including George VI, who was the King during the rule of Padma Shamsher, have reigned Britain ever since.

The International Treaty of Union between England and Scotland in 1706/7 was another instrument that contributed to the constitutional development of the country. It was followed by implementing Acts of Parliaments in both countries. This resulted in both countries being amalgamated into a single state in international law. The Act of Union 1707 formally joined the Parliaments of England and Scotland into a new Parliament of Great Britain. Its seat was Westminster. The treaty provisions also enabled Scottish electors’ representation in the Union Parliament at Westminster. The Union that was created was also a full economic union. It replaced the Scottish systems of currency, taxation and laws regulating trade.

In the next turn of events, Robert Walpole (August 1676 – March 1745) emerged as a stable political figure in Britain. He held a majority in the House of Commons and ruled the country for 21 years. Walpole chaired cabinet meetings, appointed all other ministers, and developed the doctrine of cabinet solidarity. In view of his role as the leader of the cabinet, he is now generally regarded as having been the first prime minister of Great Britain. Until then, this position had no official recognition in law. Walpole held that power de facto due to the extent of his influence in the cabinet. This supported the future growth of the office of the cabinet.

The Industrial Revolution transformed British society. The democratic system required some change due to industrial revolution. For this reason, the Great Reform Act was enacted as an Act of Parliament of the United Kingdom to introduce wide-ranging changes to the electoral system of England and Wales. According to its preamble, the Act was designed to take effectual measures for correcting diverse abuses that have long prevailed in the Choice of Members to serve in the Commons House of Parliament. It redistributed parliamentary seats to give fairer representation to the population than before. Many people moved from rural communities to some mainly urban ones. The citizens demanded to have a say in how they were governed, a cause taken up immediately by the Magna Carta-inspired Chartist movement. The formal citation of the Act is the “Representation of the People Act 1832.”Erskine May notes that the “reformed Parliament was, unquestionably, more liberal and progressive in its policy than the Parliaments of old; more vigorous and active; more susceptible to the influence of public opinion; and more secure in the confidence of the people,” but May admitted that “grave defects still remained to be considered.”

The Parliament Act of 1911 was yet another great achievement in asserting the power of the House of Commons on the House of Lords, the upper house of the Parliament. Notably, it removed the right of veto, except on bills to extend the life of Parliament, from the House of Lords. Lords were permitted the power to delay for one month on money bills and two years legislation. The duration of the Parliament was reduced to five years. Amended by the Parliament Act 1949, the Parliament Act 1911 further limited the power of the Lords by reducing the time that they could delay bills, from two years to one. These Acts have been used to pass legislation against the wishes of the House of Lords on several occasions since 1911.

Adult franchise was still a problem in Britain. By the Representation of the People (Equal Franchise) Act 1928, almost every adult man and woman was finally entitled to vote for the Parliament. It gave voting rights to men over 21 years of age with 6 months’ residence qualification and to women over 30 years of age meeting occupancy requirement. Additionally, the Parliament (Qualification of Women) Act 1918allowed women to become Members of Parliament.

His Majesty’s Abdication Act enacted in 1936 passed by the Parliament of the United Kingdom provided for the abdication of King Edward VIII, who wanted to marry his lover, Wallis Simpson, despite opposition from the government and the dominions. This was another significant achievement for the Parliament. The Actrecognised and ratified the abdication of King Edward III and passed succession to his brother King George VI. The Act also excluded any possible future descendants of Edward from the line of succession. The British Constitution had no provision until then for a sovereign to abdicate. Parliament had to pass a bill to remove the King from the throne and then receive the royal assent in order to make it a law. The Royal Marriages Act 1772was not to be applied to Edward III. Upon the royal assent being communicated to Parliament on the King’s behalf, the Act came into effect and Edward VIII ceased to be king. The throne immediately passed to his brother, who was proclaimed King George VI the next day at St James’s Palace, London.

To sum up, the British constitution is a document in evolution. With regards to the great constitutional landmarks, notable documents include the Magna Carta of 1215, the Petition of Right of 1628, the Bill of Rights of 1689, the Act of Settlement of 1701, the Act of Union between England and Scotland of 1707, and the Parliament Act of 1911 among others. All these constitutional landmarks form only the addenda to the constitution. Many of them have not been enacted by Parliament. Yet, these documents govern the relations between the State and its citizenship in addition to limiting the power of the state. The large number of statutes passed from time to time by the British Parliament also form the Constitution.

Reference may be made in this connection to the Reform Acts of 1832, 1867, 1884, 1918, 1928, and 1949. The Representation of the People Act of 1948 abolished the university constituencies. The right of person to vote in a constituency in which he had a “business premises qualifications” but did not reside was taken away. Other acts belonging to the same category include the Abdication Act of 1936, Septennial Act of 1716, the Irish Free State Act of 1922, the Municipal Corporations Act of 1935, the Parliamentary and Municipal Elections Act of 1872, the Judicature Acts of 1873-76, the Local Government Acts of 1888, 1894, 1929, and 1933, the Government of Ireland Act of 1920, the Public Order Act of 1936, the Ministers of the Crown Act of 1937, Indian Independence Act, 1947, and the Statute of Westminster of 1931.

Features of the Constitution

The British constitution provided for constitutional monarchy, a limited monarchy, as a form of government. The powers of the monarch have been removed in the process of its evolution and the same powers are being exercised by the government in the name of the King. The King cannot do anything without the advice and consent of the government.

The formation of the government is based on a parliamentary system, as highlighted above. The government is made by the House of Commons the members of which are elected by the people. Only the party having majority in the Commons forms the government. That party continues in office so long as it continues to enjoy that confidence. If the government is defeated, it must resign. The ministers are responsible to the Parliament for their acts of omission and commission. The administration is operated according to the wishes of the people as expressed through their representatives in Parliament.

The supremacy of the British Parliament is a strong principle of the British Constitution. Its powers are limitless and its jurisdiction absolute and transcendent. The sovereignty of the Parliament is the rule. It cannot bind its successor. It has the power to create any type of law on any issue. The Parliament cannot interrupt or end the process of constitutional change. The Parliament is sovereign, but most of the time, it is activated by the government, which commands majority in the House of Commons, and the real power lies at the hands of the Cabinet.

Until the recent reforms, the upper house of the Parliament, the House of Lords, sat as the Highest Court of Appeal, but only the Law Lords took part in its proceedings when it sat as the Highest Court of Appeal. Judges of the British courts are appointed and cannot be turned out by the executive. They hold office during good behavior. They can criticize and check the arbitrary exercise of power by the executive. With regards to judicial decisions, they are also a part of the Constitution.

The British Constitution is a flexible Constitution. It can be amended in the same way that an ordinary law of the country can. As a matter of fact, there is no separate method of amendment of the Constitution. The British Constitution is also called a unitary Constitution. All powers are concentrated in the central government, and the British Parliament can do whatever it pleases. The questions of ultra vires did not arise.

The British constitution is based on the large number of conventions in the Constitution. These conventions have revolutionized the very nature of the Constitution. The important provision regarding the actual functioning of the government are based on conventions in England. What are named as conventions of the Constitutions by A. V. Dicey are referred to as “the unwritten maxims of the constitution” by J. S. Mill and “the custom of the constitution” by William R. Anson. The conventions consist of understanding, practices and habits that together regulate a large portion of the actual relations and operations of the public authorities. The Constitution works by a body of understanding that no writer can formulate. It is on account of the existence of a large number of conventions that the Constitution is said to be convention-ridden.

Another characteristic of the constitution is the Rule of law. This implies the supremacy of law in the country. No person can be punished until and unless he or she has been proved to be in violation of a law of the country. There can be no arbitrary punishment of any individual. No person is above law. Every person, whatever his or her rank or condition, is subject to the ordinary law of the country. What is law for one is also law for another.

Another characteristic of the British Constitution is that it is essentially a judge-made Constitution. It has rightly been pointed out that most of the rights enjoyed by British citizen’s has-been guaranteed to them by the judicial decisions ruled from time to time by their judges.

The British Constitution is also based on the principle of checks and balances. The two Houses of the British Parliament can pass a law; it can only be enforced after it is signed by the king. Likewise, an order of the king is valid only after it is countersigned by a minister of the country. The prime minister and his government is responsible to the Parliament and the later has the power to remove it by passing a vote of no-confidence. The Parliament may also reject a Bill introduced by the government. Likewise, the prime minister can ask the King to dissolve House of Commons. If the members of the House of Commons can turn out the government, the government can also dismiss the members by dissolving the Commons. The Ministers control the civil servants but also depend on them to enforce their policies.

Another characteristic of the British Constitution is the principle of tolerance. To quote Ivor Jennings, a noted constitutional expert at that time, “it has developed gradually from the struggle of the seventeenth century. It has been carried out in the laws; but it is still more an attitude of mind. It is, however, not tolerance alone that makes democratic government work, that is, the majority is not permanent. It is based upon different views personal and national interests, views which are susceptible of change, and, in a sufficient number of persons, do change from time to time. Not only do opinions fluctuate but they fluctuate sometime violently and the swing of the pendulum is a familiar feature of British politics. Consequently, parties can and do appeal to reason. Majorities are unstable and the Opposition of today is the government of tomorrow. This important fact must not be forgotten for it enables the minority to submit peacefully and even cheerfully to the will of the policy of the majority.”

In the British constitutional legal system, the common law of the country, which developed over many centuries as a vast body of legal precept and usage, has important value. It is a body of judge-made rules that have never been ordained by a King or enacted by a Parliament. It has acquired almost immutable and binding character. The common law, like statutory law, is continual in the process of development of judicial decisions. The common law is the basis of the prerogatives of the Crown, the right of trial by jury in criminal cases, the rights of freedom of speech and assembly, and the right to redress grievances against the government officers, among others.

The royal prerogatives are part of the Constitution. The powers to declare war, make treaties, pardon criminals, and dissolve Parliament are exercised through royal prerogatives by issuing Orders in Council, proclamations and writs under the Great Seal. These powers are exercised by the ministers on behalf of the King; thus, the ministers’ authority comes from the Crown and not from Parliament.

These constitutional developments were fascinating for any country aspiring for democracy and the rule of law. It is challenging to analyze Government of Nepal Act1948 at the backdrop of the status of the British constitutional development at 1940s and its influence on Padma Shamsher’s reforms. As this research will show, there were important linkages.

[This article is part of the research work the author is conducting on the first Constitution of Nepal, issued in 1948]

The Ranas of Nepal, including Prime Minister Padma Shamsher, had a decent official and personal relationship with the rulers of British India. The Ranas were more exposed to British India than to any other government or people, including historical Tibet, China and the United Kingdom. As such, the Ranas had the opportunity to learn from the British due to historical military ties as well as trade and wartime collaborations. Disregarding the quality of democracy and the status of human rights in Britain, the British in India had created their own (usually inferior) constitutional legal subsystems befitting their colonial ambitions. Therefore, the quality of their laws, institutions and administration were compromised in the colonial territories.

The Ranas of Nepal, including Prime Minister Padma Shamsher, had a decent official and personal relationship with the rulers of British India. The Ranas were more exposed to British India than to any other government or people, including historical Tibet, China and the United Kingdom.

As such, the Ranas had the opportunity to learn from the British due to historical military ties as well as trade and wartime collaborations. Disregarding the quality of democracy and the status of human rights in Britain, the British in India had created their own (usually inferior) constitutional legal subsystems befitting their colonial ambitions. Therefore, the quality of their laws, institutions and administration were compromised in the colonial territories.

The Battle of Plassey, fought in 1757, marked the British’s first move to colonize the South Asian sub-continent, thus kick-starting the beginning of the imperial or colonial era. The Battle was fought between the British East India Company under the command of Robert Clive and Mir Jafar, the commander-in-chief of the Nawab of Bengal. The Company was an English, and later British, joint-stock company that received a charter from Queen Elizabeth in December 1600 to trade in the Indian Ocean region; initially, they were to trade just with Mughal India and the East Indies, but later, they traded with Qing China as well. In the Battle, Jafar and his forces betrayed and helped defeat the Nawab, and Jafar was placed on the throne as a British puppet ruler. The Battle transformed the British’s perspective about colonizing India, as they realized their strengths and potentials in conquering smaller kingdoms in the sub-continent.

In 1765, after the Battle of Buxar, in the territory of present-day Bihar, the Company won the right to collect revenue of Bengal, Bihar and Orissa and took a large area of the subcontinent under its control. The Battle was fought between the forces of the Company and the combined army of an alliance of some states, including Bengal, Awadh, and the Mughal Empire. This Battle confirmed the British’s power over Bengal and Bihar after its initial success at the Battle of Plassey. The Company also ended the rule of Bengal through a subservient Nawab.

Thenceforth, the Company took control of the territory with renewed confidence. The British government set up a secret committee to evaluate the affairs of the British East India Company, as it was making important strides in business as well as politics. The report submitted by the committee paved the way for the Regulating Act, which enforced British governmental control and regulated the Company’s affairs, including its Indian territories. It also initiated the British Crown’s takeover process of India, completed in 1858. The British government pursued several experiments to consolidate its position in India and develop the constitutional legal order for this purpose.

The Government of India Act 1919 was one of the important initiatives in this regard. It is also called the Montagu Chelmsford Reforms and covered ten years, from 1919 to 1929. The Act was passed to expand Indians’ participation in the government. This Act represented the end of benevolent despotism and began the genesis of responsible government. It was set to be reviewed by the Simon Commission in 10 years. The Act provided a dual form of government (a “diarchy”) for the major provinces.

In each such province, control of some areas of government was given to a Government of ministers answerable to the enlarged Provincial Council by way of a “transferred list.” The transferred list included agriculture, supervision of local government, health, and education. At the same time, all other areas of government (the “reserved list”) remained under the control of the Viceroy. This list included defense (the military), foreign affairs, and communications. The Imperial Legislative Council was enlarged, reformed, and became a bicameral legislature for all India. The lower house was the Legislative Assembly of 145 members, of which 104 were elected and 41 nominated, with a tenure of three years. The upper house was the Council of State, consisting of 34 elected and 26 nominated members, with a tenure of five years.

This Act had a separate Preamble that declared that the objective of the British Government was to gradually introduce responsible government in India. Apart from defining diarchy, the Act created a provision for classifying central and provincial subjects. It maintained that the Income Tax was the source of revenue for the central government. However, for Bengal and Bombay, to meet their objections, a provision assigned them 25 percent of the income tax. No bill of the legislature could be deemed to have been passed unless assented to by the Viceroy. The latter could, however, enact a bill without the assent of the legislature, thus creating the central legislature bicameral. The Act provided for the establishment of a Public Service Commission for the first time. It also created a provision that a statutory commission would be set up at the end of the 10 years after the Act was passed and which would inquire into the workings of the government. Thus, the Simon Commission for constitutional reform in 1927 was an outcome of this provision.

Communal representation was extended, and Sikhs, Europeans, and Anglo-Indians were all included. The franchise (right to vote) was granted only to a limited number of those who paid a minimum “tax” to the government. Additionally, property was one of the main bases to determine a franchisee, and those who had property, taxable income and paid land revenue of Rs. 3000 were entitled to vote.

The seats were distributed among the provinces, not upon the basis of population but upon the basis of both their importance as determined by the government and communities. The financial powers of the central legislature were also very limited. The budget was to be divided into two categories: votable and non-votable. The votable items covered only a third of the total expenditure. Even in this sphere, the Governor-General was empowered to restore any grant refused or reduced by the legislature if, in his opinion, the demand was essential for the discharge of his responsibilities. Thus, the Government of India Act provided for a partial transfer of power to the electorate through the system of diarchy. It also prepared the ground for Indian federalism, as it identified the provinces as units of fiscal and general administration.

The Government of India Act 1935 was the next effort to address the demand of the Indian people for constitutional reforms. Until 1999, it was the longest Act of the British Parliament to ever be enacted.[1] The Act was the outcome of the Simon Commission Report, deliberation at roundtable conferences, and the white paper introduced in the British Parliament. The Act granted a large measure of autonomy to the provinces of British India (thus ending the system of diarchy introduced by the Government of India Act 1919). It contained the provision for the establishment of a “Federation of India” to be comprised of both British India and some or all of the “princely states.” It introduced direct elections, thus increasing the franchise from seven million to 35 million people.

The Act also partially reorganized the provinces.[2] Membership to the provincial assemblies was altered so as to include any number of elected Indian representatives, who were now able to form majorities and gain appointment to form governments. However, the degree of autonomy introduced at the provincial level was subject to important limitations: The provincial Governors retained important reserve powers, and the British authorities also retained a right to suspend responsible government. The parts of the Act intended to establish the Federation of India never came into operation, due to opposition from rulers of the princely states. The remaining parts of the Act were enforced in 1937, when the first elections under the Act were held.

Unlike the British statues and their Acts, the Government of India Act had no preamble setting out the broad philosophy of its objectives. Like the Commonwealth constitutional legislation of the time, the Act did not include a “bill of rights” within the new system that it aimed to establish. However, in the case of the proposed Federation of India, there was a further complication in incorporating such a set of rights, as the new entity would have included nominally sovereign (and generally autocratic) princely states. However, a different approach was considered by some, given that the draft outline constitution in the Nehru Report of the All Parties Conference of 1928 included such a bill of rights. A close reading of the Act reveals that the British Government equipped itself with the legal instruments required to reassume total control any time it deemed necessary.

The Act divided British India into two categories: two governor provinces and five chief commissioner provinces. The Act enlarged the legislature in the provinces as well. Six provinces (Assam, Bengal, Bihar, Bombay, Madras, and the United Province) were to have bicameral legislatures (i.e., the Legislative Council and the Legislative Assembly). Diarchy, which was abolished in the provinces, was established at the center. This meant that the Reserved Subjects (defense, external affairs, tribal affairs, etc.) were to be administered by the Viceroy and the Governor-General. The Act also separated Burma from India. Sind and North West Frontier Province were given the status of province.

Lastly, the Indian Independence Act 1947 provided for India’s partition and the establishment of two dominions, India and Pakistan, on 15 August, 1947. All laws enforced in British India would remain applicable until amended by the dominion legislature. Each dominion and all provinces were to be governed per the Government India Act 1935 until the adoption of a new constitution. The Act provided the termination of the suzerainty of the British Crown over the princely states. All treaty and functions exercised by the Crown over the princely states and the rulers would lapse from August 15, 1947.

Additionally, the Constituent Assembly of India was elected to write the Constitution of India, which, following India’s independence, served as the nation’s first parliament. During the First World War, a few Indian nationalists demanded that the people of India be given the right to framing a constitution for themselves. However, the British government did not concede to the Indian demand, popularized by the Swaraj Party, which was newly established, during the Council elections of 1924.

Many leaders of the Indian National Congress considered the Constituent Assembly to merely be an enlarged edition of an all-party conference or an Indian roundtable of sorts. Later, Mr M. N. Roy, a revolutionary and a founder of Communist Party of India, put forth this idea. However, in 1933, when the white paper proposals as issued by the British government were discussed, the issue of the people framing their own constitution came to the center of politics. Although the Congress accepted the Constituent Assembly’s method of drafting a new constitution in 1934, many congress leaders continued to believe in the Conference. After the promulgation of the 1935 Act, as noted above, the Congress reiterated its entire rejection and clarified that it would only recognize a constitutional structure that had been framed by its own people.

When the Second World War broke out and India declared war against Germany, the Indian National Congress withdrew all cooperation for the British government. The Congress asked Britain to define its aims in the War and recognize India’s independence and right of its people to frame their constitution through a constituent assembly. C. Rajagopalachari, who would be the last Governor-General of India, voiced the demands for a constituent assembly based on adult franchise on 15 November, 1939, a demand that was finally accepted by the British in August 1940.

On 8 August 1940, Viceroy Lord Linlithgow released a statement about the expansion of the Governor-General’s Executive Council and the establishment of a War Advisory Council. This offer, known as the August Offer, included lending full weight to minority opinions and allowing Indians to draft their own constitution. Britain did not acknowledge the right of Indians to frame their own constitution until the 1942 Cripps Declaration, following the failed attempt to secure full Indian cooperation and support for the British’s efforts in the Second World War.

Under the Cabinet Mission Plan of 1946, which aimed to transfer the British government’s powers to the Indian leadership, at the initiative of Prime Minister Clement Attlee, elections were held for the first time for the Constituent Assembly. It worked for the benefit of Indian unity, together with the Congress and Muslim League, to keep from dividing the country between India and Pakistan. The members of the Constituent Assembly were elected by the provincial assemblies by a single, transferable-vote system of proportional representation.

The Constituent Assembly met for the first time on 9 December, 1946, reassembling on 14 August, 1947 as a sovereign body and as the successor to the British Parliament’s authority in India. As a result of the partition, under the Mountbatten Plan, a separate Constituent Assembly of Pakistan was established on 3 June, 1947. The representatives of the areas incorporated into Pakistan ceased to be members of the Constituent Assembly of India. The Constituent Assembly drafted and adopted the Constitution of India in less than three years. It was framed by a Constituent Assembly, although elected on a limited franchise, but is believed to be one of the most successful constitutions of the world. The Constitution of India came into force on 26 January 1950, the day when the republic of India was born.

Apparently, these British Indian experiments, positive or negative, were known to Padma Shamsher and the Rana elites. These experiments certainly influenced them in their course of constitutional reform in Nepal, especially given that Padma Shamsher brought in Indian constitutional experts during the constitution-writing process of Nepal.

[This article is part of the research work the author is conducting on the first Constitution of Nepal, issued in 1948]