The Constitution: An imperfect charter

Colonial or otherwise, our Constitution requires more than just tinkering to align it with ground reality

The Colonial Constitution

Author:  Arghya Sengupta

Publisher: Juggernaut

Pages: 296

Price: Rs 599

There are several issues, such as Article 370, the Uniform Civil Code, LGBTQ+ rights, the women’s reservations, for which the tenor and character of the Indian Constitution is increasingly called into question. Is it fit for purpose, homegrown or a colonial residue with a fresh varnish applied by our leadership? These questions form the central theme of this book.

Did the Constitution reflect the aspirations of all sections of the people, address the priorities of a nation that was vastly different in character than the one that existed under colonial laws with their primary purpose of extraction, facilitative law and order and centralisation?

The draconian Rowlatt Act of 1919 authorised the police to “detain without trial, try without a jury, search without a warrant”. Called Black Laws, which no self-respecting nation would accept, became accepted and perfected in the form of preventive detention in free India.  

It is the least bad option, a technocratic constitution drafted to ensure continuity rather than a break from colonial past, incorporating best practices of other countries rather than best ideas and home-grown suggestions to serve our aspirations. So total was the influence that B R Ambedkar’s first draft had called our country the United States of India. It was anchored more on acceptability and consensus than conviction.

The author, Arghya Sengupta, justifies his title in Part 1 around the following reasons. First, 150 of the 239 articles of the first draft were from the much castigated Government of India Act, 1935, though by the final version, the proportion may have been a third. Second, the initial set of questionnaires sent around by Benegal Rau contained examples of choices all of which came from the British Empire, Europe and the US and there was no option on how these could be tweaked to serve the requirements of the elite respondents’ provinces. Third, both our constitutional framers and colonisers looked at the Constitution “as a means of control” but with a refreshed justification: That our people were not ready for democracy. Both had the underlying belief that the people can’t be trusted. Fourth, facilitation of preventive detention, and, fifth, retraction by dismissing elected Assemblies via Governor’s rule and Ambedkar’s elaborate justification for copying constitutional provisions from elsewhere.

In Part II, the book discusses the alternatives proposed by others. For instance, there was the Constitution of Aundh, which actually operated between 1923 and 1948, and was “dictated” by Gandhi based on “self-sufficient village communities being the sheet anchors of decentralised administrative machinery”. Then, there was the question of a bottom-up decentralised government with rights based on duties on Gandhian principles proposed by Narayan Agarwal. And finally, there was the Hindu Mahasabha’s Constitution of Hindustan Free State (largely similar to the Constitution of India). 

If the Constitution framers had been more liberal, they would have accommodated the Gandhian Aundh experiment. Julius Nyerere had given the option to some large tribes within Tanzania to either join the formal Constitution with all the rights and privileges or continue to follow their own custom, culture, family practices and rights over property including movement of villages within a vast territory within the country. If the Aundh Constitution had been similarly allowed to continue, it would have offered several lessons for the incorporation of panchayat raj administration into the formal fold faster.  

Despite Gandhi’s stature, Gandhian philosophy was deposited into the “dustbin of sentiment”, as the author describes the Directive Principles of State Policy, which are not enforceable in any court of law. It was a dustbin wisely used by Ambedkar to accommodate all that sounded nice but did not fit in into his scheme of things. Instead, in the words of the author, the Constitution “got carried away by doctrines of Cabinet government from Britain, checks and balances from the US, and winds of centralised power blowing worldwide at the time”. So much for contextualising our Constitution.

In defence of our Constitution, however, it has to be said that it has served India well during the next tumultuous 75 years and held a country of continental proportions where every 30 km exposes one to a new dialect, cuisine and history. It has shown the flexibility to wade through every crisis it has met — wars and famines, emergency and internal security issues, messy coalitions and assassinations included. No constitution is written forever and as Gandhi observed regarding Motilal Nehru’s draft of the late 1920s, “if it’s found unsuitable, it would be certain to be replaced by another constitution”.

The Indian Constitution had also done well to avoid several hobby horses, such as constituency-wise religious reservations, religious rotation of constitutional posts, conditional voting based on wealth, tax payment and education, and Ambedkar’s state-owned agriculture on collective farms. 

The author has done well to stick to presenting events as they unfolded with virtually no vitriol, so that an expert incensed by the title would find it difficult to punch holes. It is a relevant effort — and not a day too soon. It is a must read by all those who want to meaningfully debate efforts to amend our Constitution from time to time, rather than defend it as immutable and sacrosanct.  

The true state of our Constitution in action is best exemplified by the remarks of Jabudana Sahaya during the debates: “You have here magnificent and sparkling words, social justice, political justice, and economic justice. Very good and splendid words but they appear very far away from the toiling millions”. Colonial or otherwise, it definitely requires more than just tinkering to align it with ground reality.

The reviewer is the author of Making Growth Happen in India (Sage)