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regular-article-logo Monday, 26 February 2024

A provocative argument

British law formed basic text on which Constituent Assembly constructed edifice we know now and revere as Constitution of India

T.C.A. Raghavan Published 01.12.23, 10:17 AM
Constitution of India

Constitution of India

Book: The Colonial Constitution

Author: Arghya Sengupta

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Published by: Juggernaut

Price: Rs 599

Arghya Sengupta argues that notwithstanding the hyperbole, India’s Constitution is, at its core, a colonial document and invention. The origins of the ‘colonial Constitution’ go back to 1937 when the Government of India Act of 1935 came into effect. British law formed the basic text on which the Constituent Assembly constructed the edifice we know now and revere as the Constitution of India. Ironically, the 1935 Act had been roundly criticised by many stalwarts of the freedom struggle for providing only the briefest semblance of self-government. That this “new charter of slavery” (as Jawaharlal Nehru had termed the 1935 Act) should be the bedrock on which the Constitution of a free India would rest meant — in Sengupta’s words — “[t]he cognitive dissonance was outstanding.”

The argument continues that the Constitution is colonial for reasons even more fundamental than the wholesale borrowing from the 1935 Act because it envisages and constructs a State apparatus in which the government towers over the citizen much like colonial governments tend to do. The desire for a strong State cuts across many ideological and political divides and was a natural response, given the traumas of Partition and the accompanying violence.

But the chaos of the times was not the only factor. The drafters of the new Constitution were elements of what Sengupta terms India’s “deep state” — lawyers, politicians, judges, and civil servants. Each of them exhibited a natural conservatism on issues relating to law and order. The consensus that emerged from the Constituent Assembly was that secession and subversion needed to be tackled firmly. The 1935 Act provided a readymade basis for this consensus to be easily consolidated. The introduction of preventive detention and the absence of a due process guarantee — steps against which the national movement had launched its most significant protests — were quickly internalised as being essential for a free India’s statute books.

The new Constitution had other features that were in contradiction with the cherished ideals of the freedom struggle. The Centre possessed exaggerated weight. More significantly, the decentralisation of powers to the grassroots and the Gandhian ideal of self-governing village communities were discarded. The relegation of social and economic rights to the non-enforceable ‘Directive Principles’ was also an illustration of how conventional approaches and pragmatism prevailed.

In Sengupta’s account, other templates — in part inspired by the Gandhian blueprints of a decentralised State machinery and self-sufficient village communities — were available but these were never engaged with as a conscious choice in favour of continuity, stability and perhaps the familiarity of a top-down colonial model of State power.

Sengupta does not underemphasise the transformative features of the Constitution and where it does make a decisive break. Universal adult franchise, the assurance of fundamental rights, the policy of reservations and so on are all instances of new and radical interventions to secure social and political transformation. Therefore, while the Constitution was not a simple ‘blind perpetuation’ of the past, it remains nevertheless, in Sengupta’s view, a colonial document.

How convincing or novel is this account? That the Constitution bore the strong imprint of the 1935 Act was always well-known and it is arguable whether the gloss put to obscure this, if indeed there was such an attempt, was ever successful. Sengupta’s central thesis, however, may be entirely convincing to some and not at all to others. It is tempting to aggregate all the features we do not like — restrictions on fundamental rights, preventive detention, an excessive and regressive encroachment of State functions into daily lives, among other tenets — as colonial. But one can certainly ask whether ‘colonial’ is, in fact, the right term to either describe or critique such measures. The question is whether the aim to construct a strong, interventionist and even overbearing State was a residual ‘colonial’ impulse or something else — something newer. The strong State as an inevitable necessity had emerged as a global phenomenon across both the socialist and the capitalist worlds. There was nothing particularly colonial about it although certain features may well have been adopted from colonial practice.

This book’s punchy and engagingly written argument comprises a thought-provoking essay on the dilemmas of our times and the historical trajectory that has brought us to where we are today.

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