A 'Colonial Constitution' Past Its Sell-By Date: Time For A New One, A Second Republic

The Colonial Constitution. Arghya Sengupta. Juggernaut Books. 2023. Pages 285. Rs 599.

How much of colonial law has crept into our Constitution? What was Babasaheb Ambedkar’s true contribution to its final form, as opposed to the popularly depicted notion that it was substantially his creation?

Which constitutions of the world had the largest impact on our own “holy book”? Who really prepared its first draft?

Answers to these questions have been floating around for quite a while in our historical archives and the media, but if you want better and more complete answers, you could do no better than read Arghya Sengupta’s eminently readable book, The Colonial Constitution. 

Sengupta, who is research director of the Vidhi Centre for Legal Policy, is a regular columnist for The Times of India.

He has a simple answer to the first question: “The constitution of India is a colonial document. It is colonial for the simple, factual reason that it heavily borrowed from the Government of India Act, 1935…nearly two-thirds of the first draft of the constitution of India presented to the Constituent assembly and one-third of the final draft finalised by the assembly were directly borrowed (from the Government of India Act, 1935), with minor modification where necessary.”

In both spirit and content, the Constitution, accepted as a guiding principle, the British colonial preference for making the state all powerful, where citizens could not be trusted to make their own judgements and work for the common good.

Despite opting for universal adult franchise, something that even some Western societies had not fully implemented at that point of time, our Constitution nevertheless infantilised the citizen by insisting that she could not know what was good for her and the country. She needed the heavy hand of the state and the Constitution as guiding scripture for her progress.

The Constitution’s first draft was drawn up by an Indian Civil Service veteran, Benegal Narsing Rau, and his bureaucratic team, with 150 of the 239 articles in the draft being taken straight from the GOI Act, 1935, which Jawaharlal Nehru had once dismissed as a “new charter of slavery”.

And even after it went through its final version, which was discussed by the assembly, it bore no resemblance to anything that was conceived in India for Indians.

Mahatma Gandhi’s image, which was later ceremonially stamped on currency notes as father of the nation, did not cast any sort of shadow on the document. It was a 'Macaulayite' rendering.

Ambedkar, who was enamoured of the US Constitution, took large segments from it, including ideas about fundamental rights.

But he made some major original contributions to it: one was to emphasise that India would be socialist, with key industries, including agriculture, owned by the state, and in which social justice would involve affirmative action with reserved seats for the “depressed classes”, as the Scheduled Castes and Scheduled Tribes were then called.

A third, and equally important, feature of the Constitution was the centralisation of power, something that was anathema to Gandhi. Ambedkar was in favour of a strong centre as he saw villages and local politics as fountainheads of corruption and venality.

But, even as many things got copied from the US Constitution, when it came to creating institutions to support the vision, the drafting committee did not think a presidential system was appropriate for India.

And despite the rhetoric about making the state socialist and economic welfare its main focus, most of the provisions that would have enabled this outcome were put on an optional to-do list: the directive principles of state policy, which would be non-justiciable. 

Despite tall claims of ensuring liberty to all citizens, which in a liberal milieu would have meant giving the state a smaller role, Rau and Ambedkar effectively decided that freedom comes from a larger role for the state. We now know how wrong those assumptions were.

The most depressing thought about the Constitution was that its colonial nature was accepted and adopted by its post-colonial elite as a foundational and transformative text, thus testifying to the enduring success of Thomas Babington Macaulay’s desire to promote Indians who would be Indians in reality, but think like their colonial masters. 

While both Jawaharlal Nehru and Ambedkar were fans of Western constitutions, the one folly that was averted was due to Gandhi’s intervention. Apparently, Nehru was toying with the idea of using British jurist, Ivor Jennings. This is how Ambedkar became the drafting committee’s chairman.

The questions that linger after reading Sengupta’s book are these:

Why did our leadership, most of them victims of colonial rule, opt for a colonial constitution?

Why did practically no alternative constitutional idea, including Gandhi’s vision of local self-government, not find favour?

Why did a radical set of ideas — socialism, educational, social and economic empowerment — find so little purchase in state policy so many decades after independence?

The answer could lie in the fact that the Constitution was written at a time when keeping India together was itself seen as a herculean task ahead of its leaders, and hence they opted for the devil they knew rather than experiment with new and untested ideas.

Warts and all, it was the Constitution best suited for continuity, with small and homoeopathic doses of change. Radical intent was watered down when faced with ground reality. There is no need today to judge the framers of the constitution harshly today. They did what they thought was best for the country at that time.

The issue before us now is simple: is the Constitution still good for us now?

Is so much centralisation of power still necessary?

Is a presidential form of government better for us?

What is the use of words like secular and socialist in our preamble, when these have been made irrelevant by the practice of minoritarian politics, and judicial unconcern for the rights of the majority Hindu community?

Should we junk the existing Constitution as irrelevant to our needs, or fix it little by little in the hope that it will work better?

Sengupta’s answer is that it is time to have an honest conversation about our 'colonial constitution', and chart our own course free from colonial thinking.

My own answer: we are ready for a new constitution for a second republic of India that is comfortable in its own skin and proud of its roots. The stability of the state, a major concern in 1947 when the British left, is not a primary worry today. We must junk the old and ring in the new.