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The Colonial Constitution
In December 1946, a diverse bunch of battle-weary Indian nationalists who had spent long years struggling for freedom against the British took up the challenge of a drafting the constitution of a soon to be independent India. But, curiously, the document they produced seemed divorced from their own experience as freedom fighters.
While during the freedom movement, the Government of India Act 1935 had been reviled as a ‘charter of slavery’, now more than a third of the Constitution was directly borrowed from that hated law. While many members of the Constituent Assembly had personally experienced the brutality of preventive detention and the law against sedition, the Assembly didn’t outlaw either. While Gandhiji had talked about keeping sovereign power close to the people by vesting a large part of it in the gram panchayat, the Constitution gave Indians a powerful, remote Union government ‘perched on Mt Everest’ that towered over the people like an imperial lord. Though citizens had some important fundamental rights, the government could suspend these rights at will using its wide emergency powers, wider than even what the British had when they left India. What we got then was a colonial constitution that fundamentally did not trust its own people.
In this brilliantly argued and profound book, the scholar Arghya Sengupta shows us how we got here. Neither a critique nor a celebration, this is an origin story. It is a meditation on the nature of constitution making and of moments of great change. An instant classic, The Colonial Constitution is the perfect antidote to the gushing accounts of the Constitution that abound. In the end, this book raises an unsettling does India need a new constitution?
While during the freedom movement, the Government of India Act 1935 had been reviled as a ‘charter of slavery’, now more than a third of the Constitution was directly borrowed from that hated law. While many members of the Constituent Assembly had personally experienced the brutality of preventive detention and the law against sedition, the Assembly didn’t outlaw either. While Gandhiji had talked about keeping sovereign power close to the people by vesting a large part of it in the gram panchayat, the Constitution gave Indians a powerful, remote Union government ‘perched on Mt Everest’ that towered over the people like an imperial lord. Though citizens had some important fundamental rights, the government could suspend these rights at will using its wide emergency powers, wider than even what the British had when they left India. What we got then was a colonial constitution that fundamentally did not trust its own people.
In this brilliantly argued and profound book, the scholar Arghya Sengupta shows us how we got here. Neither a critique nor a celebration, this is an origin story. It is a meditation on the nature of constitution making and of moments of great change. An instant classic, The Colonial Constitution is the perfect antidote to the gushing accounts of the Constitution that abound. In the end, this book raises an unsettling does India need a new constitution?
201 pages, Kindle Edition
Published September 23, 2023
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January 31, 2024Interesting
A good account how our constitution came into being. Quite a well researched book, going by the plethora of citations.
A good account how our constitution came into being. Quite a well researched book, going by the plethora of citations.
May 28, 2024
A book that explains the colonial aspects of the constitution
July 30, 2024
It is an undoubted conclusion, that any citizen of India who is a little well – read and has an enquiring mind, would be aware that The Constitution of Bharat (India) has all vestiges of – as the tile of this book states = a colonial constitution. A reading of the Government of India Act, 1935 and the Constitution of Bharat that is India, by lay persons will make it clear that nearly forty percent of the provisions of our Constitution is a verbatim reproduction of the provisions of The Government of India Act, 1935.
The author Arghya Sengupta is a Rhodes scholar and was a lecturer of Law at University of Oxford, who after completing his law degree from National Law School of Law University Bengaluru, is currently the Research Director of the Vidhi Centre for Legal Policy.
The book is the story of why a group of freedom – loving Indians who, having liberated themselves after two centuries of colonial rule, chose to compose this so – called music of an English band and call it the Constitution of India. It is a tale of texts that they looked up to as models and contexts of the fluid nature of Indian politics at the time of the country’s independence and partition. It features the most outstanding political leaders of the generation displaying both exalted erudition and banal sentiment, dashes of originality interspersed with episodes of cautious copying. It is neither a celebration of the Constitution nor a critique. It is an origin story that begins on the morning of April Fools’ Day 1937.
As stated elsewhere in this review, the draft constitution presented by the All India Hindu Mahasabha advocated a secular state with no state religion and freedom of religion of all. It also demanded a strong Union government to curb secessionist tendencies that any regional or religious groups might have. Though Savarkar’s theory of Hindutva ran counter to their own constitutional vision, for the Mahasabha, this was not a contradiction. Hindutva was first and foremost a doctrine for Hindu revivalism in society, to restore Hindu self – worth. To achieve this required work outside the Constitution and the state, not inside it.
The growth of such work remained stunted because of the larger – than – life presence of Mahatma Gandhi. Like the adherents of Hindutva, Gandhi too was not focally interested in the Constitution at the time it was being drafted. His physical absence from the Constituent Assembly as well as his intellectual remoteness from questions of constitutional law meant that the draft Constitution did not have any ideological competition. This was one of the key reasons why the Constitution, according to noted Gandhian Kengal Hanumanthaiah, resembled the ‘music of an English band’.
In this brilliantly argued and profound book, Arghya Sengupta shows us how we got here. Neither a critique nor a celebration, this is an origin story. It is a meditation on the nature of constitution making and of moments of great change. An instant classic, The Colonial Constitution is the perfect antidote to the gushing accounts of the Constitution that abound.
In December 1946, a diverse bunch of battle-weary Indian nationalists who had spent long years struggling for freedom against the British took up the challenge of a drafting the constitution of a soon to be independent India. But, curiously, the document they produced seemed divorced from their own experience as freedom fighters.
While during the freedom movement, the Government of India Act 1935 had been reviled as a ‘charter of slavery’, now more than a third of the Constitution was directly borrowed from that hated law. While many members of the Constituent Assembly had personally experienced the brutality of preventive detention and the law against sedition, the Assembly didn’t outlaw either. While Gandhiji had talked about keeping sovereign power close to the people by vesting a large part of it in the gram panchayat, the Constitution gave Indians a powerful, remote Union government ‘perched on Mt Everest’ that towered over the people like an imperial lord. Though citizens had some important fundamental rights, the government could suspend these rights at will using its wide emergency powers, wider than even what the British had when they left India. What we got then was a colonial constitution that fundamentally did not trust its own people.
While the Constituent Assembly debated and drafted the Constitution over a period three years or more, it is interesting to note that there were three drafts of the Constitution:
One which followed Gandhi’s idea of devolving power to villages, each village being more or less self – sufficient, levying their own taxes and utilizing the revenue for welfare of the villagers – schools, health care, drinking water, etc. There were no legislative assemblies, the laws would be made by elected members of the panchayats. The members of taluka panchyats would be elected by the members of village panchyats, which in turn would elect the district panchayats, ultimately culminating in the national body. There was no concept of fundamental rights instead there were fundamental duties. Instead of courts there were panchayats comprising of five villagers, men and women.
The second draft presented by Hindu Mahasabha was more or less like the Constitution adopted by the Constituent Assembly. However, certain provisions of this Constitution do not find place in the Indian Constitution like the requirement to hold referendums, the right of recall, old age pension for all, etc.
The third draft was authored by Sri Benegal Narasing Rau, a model ICS officer who was the adviser to the Constituent Assembly. His original draft had 239 sections of which 150 were adapted or copied from the Government of India Act, 1935. This draft was the outline and guide for our Constitution. Some of the provisions adapted were more draconian than the British Act and hence it is obvious that our Constitution is much, much more colonial than the Government of India Act, 1935.
Even though Ambedkar accepted reservation of seats for a period of ten years, he knew all along: mere constitutionalization of the caste question, including the constitutional outlawing of untouchability, would not alone be sufficient. Untouchability, a social phenomenon that dated back millennia, could not simply be legislated away by the stroke of a pen. He was acutely aware that the Constitution could not set down the roots of a society based on liberty, equality and fraternity, and repudiate caste overnight. It could be legislated in a moment, but its fruit would take considerable time to emerge. Sadly, the generations succeeding the constitutional one, are more casteist than orthodox Hindus ever were. For short term benefits in elections they have carried forward the ten year reservation, now for perpetuity, still dividing society on lines of caste. Both Gandhi and Ambedkar felt that the Constitution would nourish the soil of India in which it was planted but would also have to be nourished by it. But they were united in their realization that constitutions don’t change countries, countries create constitutions that are conducive to their time. The colonial constitution was the Constitution of India circa 1950. Narsi Mehta’s ‘Vaishnava jana to’, on the other hand remains timeless.
Irrespective of political affiliation, it is time to start thinking about new constitutional ideas for Bharat that is India. The Constitution, itself a creature of continuity, has time and again showed its staying power. Much had changed in seventy plus years, but equally, very little had. The Constitution had continued a colonial state in 1950. Seven decades on, and before the question creeps up onus unknowingly, it is time to ask the hard question: does India need a new constitution?
This is not a call to draft a new constitution today. In the polarized time we live in, any constitution that emerges out of such a time is unlikely to be long lasting. But it is a call to think more deeply about the Constitution rather than merely extolling its virtues in a rhetorical fashion or criticizing it unthinkingly. The Constitution creates a towering state that stifles individual initiative. It creates big governments that diminish the role of the local communities. It gives citizens fundamental rights but hedges them with a slew of restrictions. At the same time, it spells out a clear vision of a more equal, secular, democratic India with free and fair elections based on universal adult franchise. If India is to prosper, it needs to embrace some of what the Constitution has to offer: the promise of freedom, communal harmony, and equality. Equally, it has to reject some other bits: preventive detention, rights without meaningful duties, a colonial state which over time has become a rent – seeking one. India today needs an honest conversation about its colonial constitution and whether it is ready to chart its own constitutional course. The time for banal homilies is over.
ARE YOU LISTENING – THE OPPOSITION PARTIES OF THE 18th LOK SABHA?
An invaluable read for not just lawyers and students of constitutional law but also those who are interested in knowing about our Constitution.
The author Arghya Sengupta is a Rhodes scholar and was a lecturer of Law at University of Oxford, who after completing his law degree from National Law School of Law University Bengaluru, is currently the Research Director of the Vidhi Centre for Legal Policy.
The book is the story of why a group of freedom – loving Indians who, having liberated themselves after two centuries of colonial rule, chose to compose this so – called music of an English band and call it the Constitution of India. It is a tale of texts that they looked up to as models and contexts of the fluid nature of Indian politics at the time of the country’s independence and partition. It features the most outstanding political leaders of the generation displaying both exalted erudition and banal sentiment, dashes of originality interspersed with episodes of cautious copying. It is neither a celebration of the Constitution nor a critique. It is an origin story that begins on the morning of April Fools’ Day 1937.
As stated elsewhere in this review, the draft constitution presented by the All India Hindu Mahasabha advocated a secular state with no state religion and freedom of religion of all. It also demanded a strong Union government to curb secessionist tendencies that any regional or religious groups might have. Though Savarkar’s theory of Hindutva ran counter to their own constitutional vision, for the Mahasabha, this was not a contradiction. Hindutva was first and foremost a doctrine for Hindu revivalism in society, to restore Hindu self – worth. To achieve this required work outside the Constitution and the state, not inside it.
The growth of such work remained stunted because of the larger – than – life presence of Mahatma Gandhi. Like the adherents of Hindutva, Gandhi too was not focally interested in the Constitution at the time it was being drafted. His physical absence from the Constituent Assembly as well as his intellectual remoteness from questions of constitutional law meant that the draft Constitution did not have any ideological competition. This was one of the key reasons why the Constitution, according to noted Gandhian Kengal Hanumanthaiah, resembled the ‘music of an English band’.
In this brilliantly argued and profound book, Arghya Sengupta shows us how we got here. Neither a critique nor a celebration, this is an origin story. It is a meditation on the nature of constitution making and of moments of great change. An instant classic, The Colonial Constitution is the perfect antidote to the gushing accounts of the Constitution that abound.
In December 1946, a diverse bunch of battle-weary Indian nationalists who had spent long years struggling for freedom against the British took up the challenge of a drafting the constitution of a soon to be independent India. But, curiously, the document they produced seemed divorced from their own experience as freedom fighters.
While during the freedom movement, the Government of India Act 1935 had been reviled as a ‘charter of slavery’, now more than a third of the Constitution was directly borrowed from that hated law. While many members of the Constituent Assembly had personally experienced the brutality of preventive detention and the law against sedition, the Assembly didn’t outlaw either. While Gandhiji had talked about keeping sovereign power close to the people by vesting a large part of it in the gram panchayat, the Constitution gave Indians a powerful, remote Union government ‘perched on Mt Everest’ that towered over the people like an imperial lord. Though citizens had some important fundamental rights, the government could suspend these rights at will using its wide emergency powers, wider than even what the British had when they left India. What we got then was a colonial constitution that fundamentally did not trust its own people.
While the Constituent Assembly debated and drafted the Constitution over a period three years or more, it is interesting to note that there were three drafts of the Constitution:
One which followed Gandhi’s idea of devolving power to villages, each village being more or less self – sufficient, levying their own taxes and utilizing the revenue for welfare of the villagers – schools, health care, drinking water, etc. There were no legislative assemblies, the laws would be made by elected members of the panchayats. The members of taluka panchyats would be elected by the members of village panchyats, which in turn would elect the district panchayats, ultimately culminating in the national body. There was no concept of fundamental rights instead there were fundamental duties. Instead of courts there were panchayats comprising of five villagers, men and women.
The second draft presented by Hindu Mahasabha was more or less like the Constitution adopted by the Constituent Assembly. However, certain provisions of this Constitution do not find place in the Indian Constitution like the requirement to hold referendums, the right of recall, old age pension for all, etc.
The third draft was authored by Sri Benegal Narasing Rau, a model ICS officer who was the adviser to the Constituent Assembly. His original draft had 239 sections of which 150 were adapted or copied from the Government of India Act, 1935. This draft was the outline and guide for our Constitution. Some of the provisions adapted were more draconian than the British Act and hence it is obvious that our Constitution is much, much more colonial than the Government of India Act, 1935.
Even though Ambedkar accepted reservation of seats for a period of ten years, he knew all along: mere constitutionalization of the caste question, including the constitutional outlawing of untouchability, would not alone be sufficient. Untouchability, a social phenomenon that dated back millennia, could not simply be legislated away by the stroke of a pen. He was acutely aware that the Constitution could not set down the roots of a society based on liberty, equality and fraternity, and repudiate caste overnight. It could be legislated in a moment, but its fruit would take considerable time to emerge. Sadly, the generations succeeding the constitutional one, are more casteist than orthodox Hindus ever were. For short term benefits in elections they have carried forward the ten year reservation, now for perpetuity, still dividing society on lines of caste. Both Gandhi and Ambedkar felt that the Constitution would nourish the soil of India in which it was planted but would also have to be nourished by it. But they were united in their realization that constitutions don’t change countries, countries create constitutions that are conducive to their time. The colonial constitution was the Constitution of India circa 1950. Narsi Mehta’s ‘Vaishnava jana to’, on the other hand remains timeless.
Irrespective of political affiliation, it is time to start thinking about new constitutional ideas for Bharat that is India. The Constitution, itself a creature of continuity, has time and again showed its staying power. Much had changed in seventy plus years, but equally, very little had. The Constitution had continued a colonial state in 1950. Seven decades on, and before the question creeps up onus unknowingly, it is time to ask the hard question: does India need a new constitution?
This is not a call to draft a new constitution today. In the polarized time we live in, any constitution that emerges out of such a time is unlikely to be long lasting. But it is a call to think more deeply about the Constitution rather than merely extolling its virtues in a rhetorical fashion or criticizing it unthinkingly. The Constitution creates a towering state that stifles individual initiative. It creates big governments that diminish the role of the local communities. It gives citizens fundamental rights but hedges them with a slew of restrictions. At the same time, it spells out a clear vision of a more equal, secular, democratic India with free and fair elections based on universal adult franchise. If India is to prosper, it needs to embrace some of what the Constitution has to offer: the promise of freedom, communal harmony, and equality. Equally, it has to reject some other bits: preventive detention, rights without meaningful duties, a colonial state which over time has become a rent – seeking one. India today needs an honest conversation about its colonial constitution and whether it is ready to chart its own constitutional course. The time for banal homilies is over.
ARE YOU LISTENING – THE OPPOSITION PARTIES OF THE 18th LOK SABHA?
An invaluable read for not just lawyers and students of constitutional law but also those who are interested in knowing about our Constitution.
December 6, 2023
The first part of analysis of constitution juxtaposed with Colonial laws is good.
The second part is cursory reading with shallow opinionated nuggets that lead to epilogue which makes me wonder about analytical strength for first part.
My sense, read first part forget the rest.
The second part is cursory reading with shallow opinionated nuggets that lead to epilogue which makes me wonder about analytical strength for first part.
My sense, read first part forget the rest.
October 24, 2023
This is the best book on the Indian Constitution since Granville Austin’s original commentary! Marvellous ! Wonderful read, concise, precise and masterly condensed narration!
November 3, 2024
In-depth research of evolution and development of the Indian Constitution and a very valuable source for a student of law.
September 27, 2023
How the framers of the Holy Constitution, almost all lawyers blind themselves in self serving rules and law, which had a disgust for the people it was meant to be. The Rowlatt act makes a comeback and so does the salt tax. Making the Indian Government a vestige of the Colonial Act
Displaying 1 - 7 of 7 reviews