Book Review | Beyond hagiography, Arghya Sengupta takes critical look at Indian Constitution

The Constitution of India is often eulogised as a “sacred” document. Hence, any attempt to chronicle its journey is fraught with the possibility of transforming itself into a hagiographic account. And critiquing it, at least in the current atmosphere, is fraught with the danger of being rejected as an attempt to delegitimize the Constitution at the behest of a larger political project. If a book finds a midway to it, it has hit the gold. ‘The Colonial Constitution’ by Arghya Sengupta is closest to this distinction. Biographies of the Indian Constitution by eminent legal scholars starting from Granville Austin who termed the Indian Constitution as ‘Cornerstone Of The Nation’ to recent ones by Gautam Bhatia, Rohit De, and Madhav Khosla who have termed it as ‘The Transformative Constitution: A Radical Biography in Nine Acts’, ‘A People’s Constitution: The Everyday Life of Law in the Indian Republic’ and ‘India’s Founding Moment: The Constitution of a Most Surprising Democracy’ respectively have been largely appreciative of the Indian Constitution be it for its “reformative abilities” or its pro-people stance. A valuable addition to this list of books tracing India’s constitutional journey is Sengupta’s book. Sengupta is the founder and Research Director at Vidhi Centre for Legal Policy. [caption id=“attachment_13194022” align=“alignnone” width=“671”] The Colonial Constitution (Paperback), written by Arghya Sengupta[/caption] In an intellectually attractive departure Sengupta who describes his book as “neither a critique nor a celebration” calling it rather an “origin story” critically concludes the Indian Constitution is a “colonial” one. The Supreme Court in the landmark judgement titled ‘Virendra Singh And Others vs The State Of Uttar Pradesh’ delivered in 1954, talking about the Indian Constitution expressed great appreciation for it. In its judgement, the apex court said, “At one stroke all other territorial allegiances were wiped out and the past was obliterated except where expressly preserved; at one moment of time the new order was born with its new allegiance springing from the same source for all, grounded on the same basis: the sovereign will of the people of India with no class, no caste, no race, no creed, no distinction, no reservation.” Rohit De, Professor of History at Yale University commenting on this in his essay ‘Constitutional Antecedents’, rightly points out that, “While the Constitution did usher in a new order, its claims to have obliterated the past remain unconvincing, even to contemporary observers.” He goes on to write, “The Constitution text contained aspects of imperial charters and colonial legislation and in several cases reproduced sections verbatim.” One of the central arguments made by Sengupta to buttress his point that the Indian Constitution is a colonial one matches that of De. According to Sengupta, the Indian Constitution was heavily influenced by the Government of India Act 1935—an act that Jawaharlal Nehru termed as a “New charter of slavery” and Madan Mohan Malaviya termed as an attempt to take away whatever little freedom Indians have. Sengupta writes that “150 out of 239 articles of the first draft Constitution of India written by Indians for India were based on, or copied from, the very same Government of India Act that has been so roundly denounced”. In the chapter titled ‘New Delhi Darbar’ Sengupta highlights an important fact to press his claim of the Indian Constitution being a colonial one when he talks about emergency provisions. He writes, “The ultimate irony, according to H N Kunzru, was that Section 93 of the Government of India Act, authorising the colonial governor to take over the functions of an elected provincial legislature—from which the framers derived the concept of dissolving the State legislature in an emergency—itself had been deleted by the British before they left India. In the India (Provisional Constitution) Order 1947, that adapted the Government of India Act for independent India, the governor-general of India had removed this provision, presumably believing such emergency power would be antithetical to the functioning of representative popular democracy. But now, the Constituent Assembly, of its own free will, had resurrected it.” The fact that the author unapologetically calls the Indian Constitution a colonial document might ignite a fierce debate. An essential aspect of the book that might be ignored in this debate is the facts regarding the contribution of other members of the Constituent Assembly in the drafting of the constitution, especially that of the constitutional advisor to the Constituent Assembly Benagal Narsing Rau. Using the analogy of cricket the author explains how different members played their respective roles well. “Much of the work of the Constituent Assembly resembled this landmark game. B N Rau and Rajendra Prasad had provided a solid opening. Ambedkar had been the star of middle overs, constructing the innings painstakingly together with K M Munshi and his colleagues in the Drafting Committee. Nehru and Patel ensured consensus that took the document over the line, seeing the innings out to a respectable close.” He adds, “Neither Ambedkar was alone responsible for the text nor was he merely a top dressing to make the Constitution respectable to all sections of the society. The Constitution was a collective enterprise of all its framers.” Highlighting the role of Rau and how the Government of India Act was adapted to Indian needs, Sengupta writes that Rau “sought to repurpose the arrangements” under the Government of India Act “in a manner that would promote Indian interests”. “This was a technocratic constitution drafting at its best: adapting a familiar working framework rather than restarting from scratch ensuring continuity rather than a decisive break from colonial institutions, deriving from best practices in other constitutions rather than creating new best practices that would work for India,” writes Sengupta. The author while highlighting the domination of colonial documents on the Indian Constitution did not miss to mark the point of departure. He writes, “But, in one key respect, the game had changed. It was agreed early on by the Constituent Assembly that every adult Indian would now have the right to vote, irrespective of any property ownership or educational qualification.” One of the several reasons put forward by the author to mark the Indian Constitution as being heavily inspired by a colonial document was the favour for an overarching, strong central government with weak states and total disregard for local self-government. However, the author explains at length the reasons for doing so. He argues that given the prevailing circumstances at that time, the crisis of partition, it was imperative for the framers to keep a strong union to ensure law and order and check any secessionist tendencies. In an attempt to show how the current government, like the colonial one towers over the citizens, the author recounts two incidents from the recent past. Citing the ordeals faced by filmmaker Deepa Mehta during the shooting of her film Water and the inhuman treatment met to the migrant workers during the COVID-19 outbreak, the author concludes it is an outcome of the Constitution that failed to shed its colonial features. And, this is where the author seemingly goes overboard and forgets what Ambedkar had said: However good a constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a constitution may be, if those implementing it are good, it will prove to be good. Apart from this minor misgiving, the book shows the courage to raise some uncomfortable questions that have not been asked hitherto. Also, apart from examining the colonial angle, the book in vivid detail dwells on the alternatives that were available to the Constituent Assembly members. From Gandhian ideas centred around fundamental duties over fundamental rights to the arguments put forward by All India Hindu Mahasabha, the book has rich details of how various options were deliberated upon and sometimes ignored. The point made by Sengupta that the Indian Constitution is colonial as it heavily borrowed from the colonial document can find a rebuttal in the fact highlighted by Hanna Lernar of the Department of Political Science at Tel Aviv University. In her article titled ‘The Indian Founding: A Comparative Perspective’ published in the ‘Oxford Handbook Of Indian Constitution’ she writes that the Indian Constitution was one of the first among what is commonly termed the post-colonial wave of constitution drafting. By contrast to the revolutionary constitutions of the preceding centuries, post-colonial post-World-War 1 constitutions were generally written under conditions of limited sovereignty. She cites the example of Indonesia, where Japanese rulers appointed the members of the Drafting Committee, and in 1947 in Sri Lanka and in 1957 in Malaysia, where a (British) colonial constitutional committee reviewed and revised the draft constitution. She writes that India differed from these characteristics of its contemporaries in some respects, the major being that “although the Indian Constitution was initiated under the conditions of limited sovereignty, it resulted in a constitution that was perceived to express a high degree of sovereignty, both internally and externally”. To what extent the Indian Constitution can be termed as colonial is something that can be debated, but for a change, the book by all means makes an earnest attempt to question the well-settled beliefs and notions regarding the Indian Constitution. The writer is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective_. He writes on Law, Governance and Politics. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect_ Firstpost_’s views._ Read all the  Latest News ,  Trending News ,  Cricket News ,  Bollywood News , India News  and  Entertainment News  here. Follow us on  Facebook ,  Twitter  and  Instagram .