Who is afraid of talking about the Constitution? A book review of Arghya Sengupta’s The Colonial Constitution: An Origin Story

The old world is dying, and the new world struggles to be born: now is the time of monsters. – Antonio Gramsci

In The Colonial Constitution: An Origin Story, Arghya Sengupta writes that “We are at an inflection point, with the old giving way to the new.” State socialism is being replaced by market-led neoliberalism; identity-based reservations in jobs and education are being replaced by universal poverty alleviation programmes; and instead of the liberal consensus which had heretofore kept openly Hindutva elements confined to the fringes, the BJP-RSS combine has become the mainstream in Indian politics with the liberals looking more and more out of touch with every passing day.

Sengupta’s thesis is that the Constitution of India is a colonial document and this time of change is a good opportunity for us as a nation to have a conversation about decolonizing it. He puts forward two central arguments to buttress his thesis.

The Colonial Constitution

One, the Constitution of India is colonial “for the simple factual reason that it is heavily borrowed from the Government of India Act, 1935,” which was roundly denounced by such disparate personalities as Jawaharlal Nehru, Madan Mohan Malviya, Dr Rajendra Prasad and Mohammad Ali Jinnah, and from which the Indian Constitution copies unchanged a significant portion.

Second, “the Indian constitution is colonial in a more conceptual sense: it sets up a government that towers over the citizen like colonial governments tend to do . . . The state is simply not expected, except in theory, to empower and protect citizens.” Its job, instead, is to police its subjects into behaving properly.

Due to the historical circumstances at the time of its framing, “Instead of drafting a new constitution that would ask fundamental political questions of the new nation and its future, the constituent assembly prioritized the indivisibility of India.” This priority informed all the choices they made, converting the document into what Sengupta calls, after Somnath Lahiri, a “police constable’s constitution”.

“In newly democratic India, the needs of the security of the state were weightier than the new-found freedom of citizens,” Sengupta argues that it became more important for the framers to save the integrity of the newly formed state from its subjects than to safeguard the liberty of citizens from the state. This was the reason they made provisions for a clearly colonial law like preventive detention in the constitution, which has then been used to enact various security laws like AFSPA, UAPA and NSA to increase the ease with which political opponents can be legally detained by those in power.

Secondly, “With Pakistan become a reality, the need to preserve the territorial integrity of the rest of India became paramount.” This led to the inclusion of emergency powers which basically allowed the constitutional subversion of democracy by “the establishment in New Delhi that wields disproportionate power over the whole country.” This uneven power balance was the primary impetus for the Khalistan movement for autonomy and independence; and it was also recently exemplified by the unilateral abrogation of Article 370 and demotion of the state of Jammu and Kashmir into two union territories.

While Sengupta says that the constitution is uniquely suited to allow those in power to abuse their power, no matter what political affiliation they have, he does not reject the constitution wholesale. He appreciates the good things in the constitution but argues that things like emergency powers, preventive detention and excessive centralization must go if we are to become democratic citizens instead of colonial subjects.

Sengupta’s argument is not new. The left has criticized the constitution from the very beginning for its bias towards property owners at the expense of workers and landless peasants. Economic rights, as Sengupta himself argues, get short shrift in the constitution as they are relegated to non-justiciable directive principles. The Maoist movement in the forested regions of central India is a direct response to the state-capitalist nexus exploiting Adivasis and Dalits.

Then we have the Hindu right which has always bemoaned the fact that the constitution is not Hindu enough, that it ignores India’s glorious legal history for American, British and French ideals. Dr Bibek Debroy, the chief of the economic advisory council of the Prime Minister, encapsulates this view in an article on the occasion of Independence Day in 2023 arguing that the constitution is a colonial legacy and “There’s a case for ‘we the people’ to embrace a new Constitution” to make it more suitable to our country’s vision for 2047.

On the other hand, we have those like Muslims, Sikhs and Christians who think the constitution is colonial because of its deep Hindu bias. Kashmiris and Nagas, among other nationalities, rejected the constitution when it was brought into force and have waged an almost endless battle against its colonization over them ever since.

Whether it is too Hindu or not Hindu enough, all these groups agree with Sengupta that the constitution is colonial and needs a major overhaul. Sengupta’s Gandhian approach may differ from Debroy’s Hindutva approach or Basavraj’s Maoist approach and they may disagree on what needs to change and how, but they agree on the basic facts and are part of the same conversation.

But there is also one group which rejects the thesis that the Indian Constitution is colonial and thus refuses to engage in this conversation at all. Karan Thapar exemplifies this view in his interview with Sengupta when he says that the problems facing us are due to people running our country going from bad to worse; the constitution in this view is a neutral document which functions as well or as badly as those who man the institutions which implement it.

Thapar assumes that there was a mythical time when India’s institutions were manned by good people and we need to remove the current demons in power and return to our golden period. But this claim seems too optimistic at best and extremely ignorant of the facts at worst, as both preventive detention and emergency powers have been misused to oppress and silence political opponents from the very beginning of the republic, no matter which regime was in power.

It is this last group of people that Sengupta is primarily addressing in his book. He asks, isn’t it precisely the job of the constitution to prevent bad people from doing bad things? If it is so easy for anybody in power to interpret the constitution in any which way it suits them, is not the constitution failing at some level?

If the Hindu right does not even need to change the constitution but can just reinterpret it to make India a Hindu Rashtra, as has been argued in this article by Aakar Patel, should we not worry about the inability of the constitution to stop such a thing?

Even in the time of Indira Gandhi, she did not need to change the constitution to arrogate dictatorial powers for herself, should that not bring the constitution’s ability to stop a determined dictator into question?

To the argument that individuals are to blame, Sengupta responds with a principled structuralism—what we need to focus on is the governing mechanism in India, not a witch hunt of individuals. Individuals, he says, are always going to be vile, it is the job of a constitution to assume as much and institute mechanisms to stop that vileness from manifesting at the level of governance and policy.

To people like Karan Thapar who think secular individuals make for a secular country while communal individuals make for a communal country—a widely made mistake in India—we have to say that what we want is a secular country no matter what the individuals are like.

Contrary to Debroy, Sengupta rejects the need to make a new constitution at this juncture when the country is so polarized. Instead, he gives us an origin story, detailing how the constitution is colonial and bids us to “start thinking about new constitutional ideas for India”. As Sengupta tells Thapar, “While we should not draft a new constitution today, we also need to get rid of the banal homilies that we have a beautiful constitution and it is only the people who are bad.” We must squarely face the challenge history has thrown at us instead of hiding behind received dogma.

Sengupta also provides us with three alternative strands of thinking which were operative in India at the time of the framing of the constitution and are still operative today. Gandhi, Ambedkar and Savarkar are the three polarities in India, symbolised not by the line representing the right-left spectrum, which is ultimately meaningless here, but by a trishul. Bharat, India and Hindustan, he respectively terms the three chapters dealing with these three versions of constitutional thinking.

Sengupta himself sides with a more Gandhian approach, with weightage given to village level decentralization and moral regeneration. Being a partisan of Jinnah’s institutionalisation of fear, while I don’t agree with Sengupta’s solution, I do agree that the conversation is important and all approaches must find a space if we are going to forge a new consensus.

Sengupta does not give us an especially detailed or painstaking account. What he gives us is more of a traditional essay, written in simple language for the lay reader to understand. Sengupta articulates his opinion on an important topic in a way that provokes us to think. And it is because he focuses more on his personal opinion that he falters in some places, where the blind spots and biases of his thinking come out and overshadow what is otherwise a fairly objective historical account.

One, Muslims are completely ignored by the book, except as a spectre crystallised in the form of Jinnah and the anxieties he provoked with the Muslim league, the only successful subcontinental level Muslim political party in modern India. Maybe that is because the book is being faithful to the mindset and realities of the framers of the constitution or maybe that is because it reflects the mindset and realities of the author. Or what is more likely, maybe it is a little bit of both.

Two, Ambedkar’s politics is given a traumatic backstory, in the fashion of the day. We are told that Ambedkar wanted a strong central state because he was mistreated by a tongawala. At the same time, we are not told that Gandhi’s political beliefs are a result of his personal struggles with sex and meat-eating. Neither is that the case with Savarkar. Why do that with Ambedkar alone? While Sengupta might not have consciously meant disrespect, this reduction of Ambedkar’s political thought to a well-articulated trauma response surely is disparaging to the intellectual and moral calibre of the man.

Apart from his Gandhian prejudices, Sengupta manages to do a fairly lucid recounting of why we need to have a conversation about the constitution in good faith. The constitution has been criticized by almost everybody for a long time, and since it does not suit anybody anymore, maybe the time has come, in Ambedkar’s words, to burn it.

No matter what you think and where you stand, there is no denying the fact that the constitution made Indira Gandhi possible, is making Modi possible, that it has stood by as one government after another has used legal means to imprison and torture their political opponents and that it has allowed for the legal colonization of Kashmir, among other places. No matter where you stand on the trishul—whether you are an Ambedkarite, Gandhian or a Savarkarite—it is high time to engage in the conversation to improve our constitution.

And to those who don’t agree with him, the question Sengupta asks is this: Are you going to help the new world be born or are you going to remain attached to the old world, thereby extending the gestation period of the new world and thus the time for monsters to roam freely?

Akshat Jain is a writer currently residing in India. He uses the debate methodology of Syādvāda to piss people off. Like a good Syādvādist, he claims that all his claims fall within the ambit of falsifiability. 

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