Origin Story

ON THE EVE OF Independence India found itself in a strange political situation. The country had been freed of the British yoke by mass mobilisa­tion of a multitude that was divided by language, class and creed. So, when the moment of freedom came, it was expected that a suitably decentralised political system would be the outcome of this struggle. But the elite shepherding the nascent nation wanted a strong centralised state and managed to get one. When the time came to draft a constitution, these contradictions became manifest: A country of continental proportions that was diverse to the point of being inchoate was bequeathed a founding document that provided for a powerful, centralised, executive.

The most “repressive” parts of the 1950 Constitution were directly taken from the Government of India Act, 1935. But much more was borrowed from the colonial apparatus as Arghya Sengupta shows in The Colonial Constitution: An Origin Story. Nearly one-third of the document is a direct lift from the 1935 Act, notwithstanding the three years of devoted labour on the part of 300-odd members in deliberating a new Constitution.

Sengupta says there were alternative Constitutional formulations that were available. There was the Gandhian “decentralised” variant with its emphasis on village republics and individual duties. Then there was another version—the Constitution of the “Hindusthan Free State”—given by the Hindu Mahasabha. The emphasis of the latter document was not on Hindutva but allegiance to the Indian state.

The version that was finally adopted paid lip service to Gandhi’s ideas by including them in the chapter on the Direc­tive Principles. Sengupta holds the watering down of many such potentially transformative features as another example of Constitution makers treading an allegedly colonial path. This led to many rueful voices in the Constitu­ent Assembly but to no avail. And this was for good reason. India’s first “constituent moment” was a fraught one: the choice was between a decentralised but unified country and a strong centralised state but with loss of territory. The founders chose wisely: a strong state was not just necessary for security and territorial integrity but also for economic planning and overcoming collective action problems in a number of areas. If anything, had a more “federal” Constitution been devised, that would have been more colonial in design. After all, the Cabinet Mission proposals outlined a fed­eration where the centre would be at the mercy of the provinces.

There was, however, a deeper reason for a centralised version and that had to do with the choices of the Chairman of the Draft­ing Committee in the Constituent Assembly, BR Ambedkar. Sengupta notes, “In Ambedkar’s view, such overriding powers of the central government in a federation were critical for safeguard­ing the rights of minorities. The closer the government was to the people, the closer it would be to their prejudices and discrimina­tion against the minorities in their midst. Since the Depressed Classes would be a minority in all provinces, Ambedkar put it plainly: ‘There must be some authority somewhere, over and above the Provincial Government, which will be in a position to intervene and rescue them from any adverse position in which they may be placed by the Provincial majorities.’” Another example is that of preventive detention. In the heated debates around the provision in the Assembly, it was Ambedkar’s vote that ensured the provision was retained. The man was far-sighted given the troubles that India would face in less than a decade.

THIS IS A BOOK of origins, and the author sketches the alternatives (and the non-alternatives) with thorough­ness. But what of the present and the future of Indian consti­tutionalism? Here the author’s story comes to a halt. Well, almost. In the final four pages of the book, Sengupta throws some tantalising hints. He writes, “This is not a call to draft a new constitution today. We live in polarized times and any constitution that emerges out of such a time is unlikely to be long-lasting.” The assessment is accurate for a paradoxical reason: The free run of democracy since 1947 has created condi­tions that prevent a second “constituent moment” from arising.

In these 76 years, identity politics has solidified in different parts of the country to a near-separatist extent. In such condi­tions, it is impossible to arrive at consensus of the kind seen when the Constituent As­sembly met from 1946 to 1949 and debated on what could be the best Constitution for India. If anything, in the second constitu­ent moment, the strongly centralising features that Ambedkar worked so hard to include will be thrown out without ado. Such a moment may turn out to be a prelude to dis-union. The result is that any talk of a second constitution is not just stillborn but is positively dangerous. It is not surprising that the National Commission to Review the Working of the Constitution, appointed by the Atal Bihari Vajpayee government in 2000, contented itself with the usual constitutional homilies and eschewed any radical­ism. Its members were aware of the risks inherent in constitu­tional engineering at that late hour.

That has not prevented some commentators from pushing the case for a new constitutional set up, making an argument based on the claim that India is a “civilizational state”. The claim may be true but any constitutional thrust on the basis of that claim is likely to create political upheaval. The civilisational state may not be coequal with the boundaries of the nation-state. Sengupta is too careful a scholar not to appreciate this reality. One example is a book that he co-authored—Hamin Ast? A Biography of Article 370 (2022)—an exegesis of that extinguished part of the Con­stitution. In that closely reasoned volume Sengupta points out what he thinks are severe flaws in the pro­cedure used to achieve that political end, notably the “creative” use of Article 367 of the Constitution.

This case has had its effect on the present book. The book outlines our constitutional distempers but then goes silent on what to do about them. The last four pages of the book weigh heavily on the first 210. Here, the author’s desires take over. He writes, “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.”

A part of this sentiment is admi­rable and is in the best of Indian tra­ditions. But another part is at odds with India’s experience as a country that is diverse but where the costs of diversity are high enough to imperil territorial integrity. Equally, it is harsh to describe the Indian state as a “colonial” one. In 1947, when the British left India, they handed power to an elite that had been literally bred by them. Since then—if only slowly—de­mocracy has taken root. Subalterns not only vote in large num­bers, bestowing legitimacy to any government, but have also taken over the reins of power in many states and at many levels in the Centre. These are no mean advances. As to a Constitution suited to, and made by, “Indian genius” perhaps that moment will come in the future. So far, the 1950 Constitution and its 106 amendments, has served the Indian people well.

The Colonial Constitution is a clear-eyed appraisal of the origins story. Unlike mawkish works that look at the same sweep of time and detect a “liberal Constitution,” Sengupta has a different, honest, take. Whether any “liberalising” changes are necessary, is a different story.

booksBritish colonialismConstituent AssemblyDirective PrinciplesIndian Constitution