An open-&-shut case

The author presents three main arguments for calling the Constitution ‘colonial’.

The title of Arghya Sengupta’s book is provocative. Terming the Indian Constitution ‘colonial’ at a time when there are calls for a review of the Constitution, if not a complete rewriting, suggests that this book too is an endeavour to support that cause. The provocativeness, however, is limited to the title. Sengupta fails to make any meaningful argument to support his assertion that the Constitution is indeed colonial in character. To the contrary, he identifies several reasons why the Constituent Assembly, in fact, made a clear and conscious policy choice when drafting all the provisions of the Constitution. Merely because the provenance of some provisions can be traced to ideas from Western civilisations, in general, and to the British, in particular, does not make the Constitution colonial, when the Constituent Assembly made a deliberate choice. Sengupta recognises these choices, and curiously, lauds the pragmatism behind them, while still alleging that the Constitution is colonial!

The book is divided into two parts (containing three chapters each), a prologue and an epilogue. Each chapter is neatly organised and well-written. In the first three chapters, Sengupta describes the Constituent Assembly’s process of constitution-making, the roles various individuals played, the competing ideas of the time and the reasons for the choices made. In the last three chapters, he examines the alternatives that could have been considered by the Constituent Assembly — one being the Gandhian model of ground-up, self-sufficient, direct village democracies, and the other, the draft constitution that had been floated by a few Hindu groups. Sengupta is quick to point out that neither was a viable option at the time for a variety of reasons, including the need to keep the new nation united and the social reform agenda of the leaders of the Independence movement.

Sengupta makes three major arguments for calling the Constitution ‘colonial’. First, the continuance of a large state with extraordinary police powers has the potential to subjugate the rights of citizens. The legislative history of independent India has seen various statutes that vest the police with powers of preventive detention, investigation, and arrest, which the Indian judiciary has upheld, rejecting the argument that they violate the Constitution. The repercussions of laws such as TADA, AFSPA, UAPA and the sedition provisions of the IPC are apparent even today. Sengupta is therefore right in arguing that the Constitution does not go far enough in protecting the rights of citizens against the state’s arbitrary police powers. Sengupta also points out, rightly, that it is perhaps difficult to accept that a group of people who had suffered from the excesses of colonial police powers did not exert themselves enough to ensure that the police in independent India had fewer powers to interfere with the rights of citizens in an independent country.

The second argument is that the democracy envisaged by the Constitution is a ‘top-down’ state, with Delhi being at the centre of a powerful union government and the states and villages being mere vassals of the Union. Sengupta wishes that the Constitution had instead adopted Gandhi’s model of a village-led republic, or at least some variation of it. However, he points out that there was no successful model of this Gandhian vision for the Constituent Assembly to follow. He also notes that leaders like Ambedkar were hardly enamoured by the Gandhian idea of a village-centric model, as that would make it difficult to emancipate the depressed classes, particularly from practices such as untouchability.

The third argument is around the directive principles of state policy. Sengupta laments that the Constituent Assembly did not pursue the ideas around making India an ‘economic democracy’ by including enforceable social and economic rights. Social and economic rights were thus, by and large, relegated to Part IV of the Constitution, providing direction to the state but not compulsorily enforced. Sengupta does admit though that this was a pragmatic decision based on the experience of other countries and the practical difficulties faced by a poor nation state.

However, Sengupta provides no basis for concluding that “in retrospect, the Constitution of India that came into force in 1950 was neither a decisive break from the past nor transformative” because it eschewed a “spirit of revolution for the spirit of continuity”. A democratic republic based on universal adult suffrage and an enforceable set of fundamental rights are only two of the several features that marked a break from the past, not just from the colonial government but from the various monarchies before that.

The strength of the book is its easy language. It is written more lucidly than others that make the same arguments. Crisp sentences, simple words and the use of plain English make the book accessible. One need not be a lawyer or a legal academic to read and understand the thoughts in the book and their flow. Despite that, regrettably, it neither educates the lay reader nor gives new insights to scholars.

The reviewer is a Bengaluru-based senior advocate. Views are personal.