Moiz Tundawala

Book Review | Why Not to Call the Constitution Colonial

Arghya Sengupta, The Colonial Constitution (Juggernaut 2023)

There is a widely prevailing tendency in constitutional scholarship and public discourse to celebrate India’s founding as a revolutionary or transformative moment for inaugurating a modern democracy in the most inhospitable conditions of poverty, illiteracy and millennial histories of social injustice. This miraculous new birth of a political society promising freedom and equality to one and all is, no doubt, an incredible accomplishment, but an uncritical veneration of the founding moment fails to account for the persisting culture of a strong law and order state, sanctioned by the Constitution itself, towering over citizen aspirations in every sphere of life. Arghya Sengupta’s recent book The Colonial Constitution pushes back against hagiographic readings of the origins story with a seemingly provocative claim that the Constitution is in fact a colonial document.

As is well known, Sengupta is the founder, manager and research director of Vidhi, a private think-tank which works closely on law and policy with the current Bharatiya Janata Party-led government at the centre as one of its most important clients. With the BJP pursuing its Hindu supremacist nativist ideology by decolonising law codes, this book has got alarm bells ringing in progressive circles invested in the secular, liberal and egalitarian values of Indian constitutionalism.

A Colonial Constitution?

Stepping back from our immediate context, however, apart from his basic thesis contained in the title ‘The Colonial Constitution’, Sengupta’s arguments are neither particularly controversial nor entirely original. By no means offering to rewrite the Constitution, all he asks for is an honest conversation about it.

Sengupta contends that the Constitution is colonial based on the simple fact that at least one thirds of its provisions, especially those dealing with the institutional structure of the state, are derived from the last imperial era super legislation of the British Parliament, the Government of India Act, 1935. We may counter this by pointing out that enough is available in the remaining two thirds of the text to bolster its decolonial credentials, including fundamental rights, responsible government, popular sovereignty and adult suffrage democracy. Nevertheless, the book is troubled by the Constitution retaining an all-powerful centralised government, evincing a unitary bias during emergencies, downgrading the socio-economic commitments of non-justiciable directive principles, and authorising preventive detention in its fundamental rights chapter.

These are familiar themes covered extensively in the scholarship on critical constitutionalism, beginning with Upendra Baxi’s sceptical response to Granville Austin’s reverential tomes on the Constitution, and extending into the present day with generative work on the legalisation of an elite-controlled passive revolution in postcolonial India. But instead of providing fresh insights on this dialectical tension between breaks and continuities with the colonial past, Sengupta ends up reducing it into a straightforward narrative on the derivative aspects of the Indian Constitution.

Direct Democracy

Although the book is mostly equivocal on the question of preferred constitutional alternatives around the founding moment, it offers for our consideration more direct forms of democratic rule such as the Gandhian panchayat or village republic and the Hindusthan Free State Constitution’s proposals for initiative, referendum and recall. Sengupta’s adversaries on the left may in fact be intrigued to learn that he shares some of their taste for direct democracy even if not going on to make a fully fleshed out case for it. However, he fails to grasp that representative democracy was inscribed in the Constitution not merely because individualism and modernity were favoured over community and tradition. Nor was it chosen as a practically viable albeit conceptually inferior substitute to direct democracy. There is more to the representative model than an elitist takeover of people’s power, and its adoption was a clear-eyed normative decision at the founding moment.

The key problem with direct democracy is that it is anti-political. It reduces democracy to the function of revealing a Rousseauvian general will, expressed in popular involvement with law making and governance, rather than a form of rule giving space to different beliefs, opinions and judgements that bring out in political language the conflicts and contradictions inherent in society. In seeking to present the people directly beyond all forms of indirect mediation, it leaves little room for a contestatory politics of competing ideas through which they come to be imagined and represented.

Citizen solidarity at local and national levels is crucial for political vibrancy, but direct democracy can well be put to use by an autocratic leader to undo the Parliamentary system altogether. This was certainly the case in Pakistan with the setting up of the panchayat-centred ‘basic democracy’ during the military dictatorship of Ayub Khan. Referenda too are no guarantee of better democratic outcomes, as we have seen in the last few years with parochial and exclusionary decisions winning out in Britain and Australia. On the contrary, despite all its shortcomings, representative democracy in India has at least thus far produced powerful social movements of caste, language, region and religion, challenging statist consensus and even succeeding in reshaping the political order.

Gandhi and Satyagraha

What emerges from different parts of the book is Sengupta’s sympathy for a Gandhian worldview and his misgivings with the constitutional enterprise for failing to absorb it in any meaningful way. Not only did they refuse to accord primacy to Gandhi’s conception of local self-government, the framers of the Constitution also stayed away from a textual acknowledgement of his anticolonial legacy of satyagraha, truth and non-violence for the postcolonial nation state.

The closure of one constituent possibility, however, was essential for the opening of another. Since the Gandhian village republic was inextricable from a caste-based social order, it had to cede space to a modern state espousing progressive ideals, given the ambition of the constitutional enterprise to seek legitimacy in the eyes of the most disadvantaged and least well off. In lamenting Gandhi’s absence from the constitutional field, Sengupta does not sufficiently appreciate how this created a much needed opening for Ambedkar, his arch political antagonist on the caste question, to assume responsibility and become the chief legislator of India’s agonistic republican democracy.

Further, Gandhi was astute enough a political actor to have understood during the days of the Non-Cooperation Movement itself—almost three decades before the Constitution-making exercise—that his Hind Swaraj would remain an unrealisable utopia. Yet he committed himself in public life to a non-violent struggle for ‘parliamentary swaraj’, and even went on to endorse participation in the Constituent Assembly as an act of ‘constructive satyagraha’. Although Ambedkar denounced it along with other bloody methods of revolutionary violence as a ‘grammar of anarchy’, satyagraha was understood by many others in the Assembly as basic to all fundamental rights. It was not to be enshrined in the text as a right, but more fundamentally in the capacity of the people to offer themselves as ‘sacrifice’ for the very establishment of the constitution.

One may also observe with the advantage of hindsight that the constitutionalisation of satyagraha would have only tamed and domesticated its disruptive potential, as has been the case with much else in the Gandhian programme appropriated by the state. Last mobilised in public protests against the discriminatory Citizenship Amendment Act and extractive farm laws, civil resistance of the kind Gandhi inspired is sustained precisely by eluding institutionalisation. It remains available as a radical form of constituent power operating besides the formal constitution, for restraining and negating the domination of governmental authority.

Hindutva and Hindu Mahasabha

While Sengupta’s position on Gandhi, even if not compelling enough, is understandable as an iteration of political conservatism, his portrayal of the Hindu Mahasabha’s constitutional alternative as reasonable and secular is partial, misleading and dangerous. Indicating that Hindutva’s ideological aversion towards Muslims and Christians found no place in the Constitution of Hindusthan Free State drafted by the Hindu Mahasabha, he stresses upon its liberal provisions stipulating no state religion, equal citizenship, freedom of religion for all, and linguistic and cultural rights for minorities.

But far from diluting Hindutva, as the book would have us believe, it was through a purely individualist conception of equality, with one vote for one person, that the Hindu Mahasabha sought to forge a Hindu majority by denying Muslims the political rights which accrued to them as a religious minority in the form of separate electorates and weighted representation. To put it mildly, this was the least promising constitutional proposal at a time when other options on the discussion table included political safeguards for minorities, a Hindu–Muslim federation, parity and partition.

Commenting on Savarkar and the Hindu Mahasabha in his book on Pakistan, Ambedkar provided a more scathing assessment. It was evident to him that Savarkar, like Jinnah, believed in the two-nation theory. But unlike Jinnah’s demand for a sovereign Pakistan, Savarkar’s proposal was illogical and inconsistent in regarding Muslims as a separate nation distinct from Hindus on the one hand, and maintaining that India was indivisible on the other. His major nation would neither treat the minor nation as a co-equal authority, nor let it break away by forming a separate independent state. Ambedkar had the clarity to discern that the Hindu Mahasabha’s offer of cultural autonomy without proper and sufficient political representation for minorities was a ‘dreadful’ alternative, designed only to give the Hindus an ‘empire’ over Muslims and satiate their ‘vanity’ and ‘pride’ in being an ‘imperial race’.

A National Constitution

In a way, Sengupta is correct in suggesting that the final Constitution of India resembled the Hindu Mahasabha version in some respects, especially as it ruled out separate electorates and weighted representation, and adopted a democratic arrangement supposed to favour individuals rather than communities. But it bears reminding that there was no certainty regarding India’s future form when the transfer of power negotiations began, and the broad scheme of the constitutional text as we know it today, became possible only after the failure of the Cabinet Mission Plan, leading eventually to partition and the creation of Pakistan.

This also brings us to the most elementary flaw in the book’s argument. Politically speaking, India does not have a colonial Constitution. For better or for worse, its Constitution is national. Whatever group entitlements were available to religious minorities in the political sphere under the colonial regime, were once and for all discontinued after independence in the name of a singular national community.

The adherents of civic-nationalism may celebrate the Constitution and the lofty claims made on its behalf. But those with a more critical disposition towards triumphalist narratives would want to ask how the birth of the Indian republic paradoxically ended up creating conditions for the depoliticisation of the Muslim question. It is by latching on to the national rather than colonial character of the Constitution, that the BJP has been able to turn what was envisaged as a temporary political majority produced by elections into a permanent communal one. If Sengupta is up for it, we could well do with an honest conversation on the constitutional features that have aided and abetted aggressive Hindu nationalism in our time, instead of pondering over a simplistic colonial origins story seventy-five years after independence.

Yet, despite all the scepticism with hagiographic accounts, the constitution-making moment represented, even if in a minimal sense, a rare convergence between the best traditions of the anti-colonial movement and the most robust strand of anti-caste thinking. Although it has failed them for years on end, Muslims today draw upon the Constitution as a symbol of resistance to claim equal citizenship in the new Hindu Rashtra. If for no other reason, whatever remains of it must be defended for their sake against the decoloniality onslaught.

About the Author

Dr. Moiz Tundawala is a Leverhulme Early Career Fellow at the Bonavero Institute of Human Rights at the Faculty of Law, University of Oxford.