Motivated Attempt To Denigrate The Constitution | Vijay Kumar

BOOK REVIEW

The Colonial Constituion
by Arghya Sengupta

Juggernaut
Page 285
Price Inr 599/-

The colonial constitution by Arghya Sengupta has come at a time when talks for the new Constitution are being floated in certain quarters, especially by those perceived to be close to the present ruling dispensation.

The Constitution of India was the outcome of intense deliberations by the framers of the Constituent Assembly, on the one hand, and the product of bricolage, on the other. The framers took into account the constitutions of different countries and attempted to tailor it to peculiar Indian requirement. Unlike the situation arising in the wake of revolution, as happened in France after revolution, or in the aftermath of war, as were the case in framing of the Constitutions of Germany and Japan after the Second World War, the framing of Indian Constitution represented both continuity with colonial legality, as evident from article 372, subject, of course, to the mandate of Article 13 of the Constitution of India, and reliance on bricolage by adopting the provisions of other Constitutions, such as borrowing the Bill of Rights from the US Constitution with Indian variant of reasonable restriction and Directive Principles from the Irish Constitution. The struggle for continuity and departure from colonial model is perhaps inevitable and is termed as “concurrent negation and affirmation†by Michel Rosenfeld. The federal structure of the Constitution, particularly division of legislative power between Union and States, are wholesale retention of the Government of India Act, 1935. Notwithstanding the visible stamp of 1935 Act in respect of earmarking of legislative power between Union and States, the Preamble, the definition of citizenship in Part-2, guarantee of fundamental right in Part-3, and delineation of aspirations of the constitution and country reflected in the form of directive principle in Part-4 were entirely novel exercise. On hindsight, it is clear that continuity with some of the colonial legality through colonial institution stood the country in good stead. Had India started on tabula rasa, it would have been difficult to create the institutions, as happened in France after revolution, and has happened in many countries in Asia and Africa. The colonial institutions, such as civil Service, the High Courts, Army and Universities provided the bedrock on which the other institutions were added and country established its democratic credential at formative stage. The criticisms for retention of colonial institutions by diametrically opposite groups: Gandhians and right-wing Hindu groups, on the one hand, and Marxists, on the other, ignore the significance of institution in nation- building, especially at critical formative stage.

No constitution can be written on clean slate. There has to be element of both continuity and novelty. After French revolution its constitution was written on tabula rasa, and it led to anarchy and its collapse. Merely because the federal structure is copied from 1935 constitution, it does not mean that the constitution is colonial.

The single biggest lacuna in the endeavour of the author is what precisely is the contours of the colonialism and decolonialism in the present time, marked by rise of neo-liberalism and its toxic combination with rise of identity politics --- not only in India but even in developed democracy, typified by rise of hideous phenomena of Trumpism in US, which is flourishing despite his electoral defeat in 2020 election— has not been explained. The colonialism is a historical byproduct of imperialism in the wake of industrial revolution. Imperialism led to colonialization by the dominant powers of the time, especially by England and France, which colonised Asia and Africa respectively. Thus, colonialism arose in particular historical conjuncture and it’s mindless invocation represents an insidious attempt to discredit the present constitution.

Paradoxically, the instrument used for sustaining the exploitation entailed the introduction of the modern scientific education along with the introduction of English legal system and study of medicine, which simultaneously facilitated the colonial exploitation and opened an avenue to resist it. For instance, the university is colonial institution, and yet it’s emancipatory— Indeed revolutionary potential in some respect ---- cannot be, and for that matter has not been devalued by labeling it as a colonial institution. Similarly, the salutary role of civil servant at the formative stage of nation- building cannot be belittled only on ground that it is a colonial institution. If these institutions in present times have failed to live up to its assigned functioning, it is not because of its origin during colonial time, but only because of sharp decline in morality and ethics in political practice resulting in impairment of theirs independent functioning. In fact, Dr. Ambedkar had this premonition when he prophesized ‘if the Constitution fails, it would be because people were vile’. Therefore, thoughtless and indiscriminate use of colonialism is impervious to the role and function of the independent institutions in democracy. The title of the book under review is perfectly, perhaps designedly, jells with current rhetoric of decolonialization of every aspect of politics.

The complete, perhaps deliberate, omission of neo-colonialism and it’s toxic combination with religious orthodoxy resulted in overlooking the phenomenon of internal colonization of masses by privileged minority. The poisonous mixture of capital and ethnic politics has accentuated the inequality. The neo-colonialism and its association with cultural marker have aggravated the problem of inequality nationally and globally. This aspect has clearly escaped the attention of the author.

Another clever stratagem used in the book for attacking the legitimacy of the present constitution is undue emphasis on the Gandhian notion of duty which fits emphatically with earlier advocacy of duty by the Prime Ministe,r Modi, and his attack on the concept of Right. Sengupta, mercifully, did not go to the extent of attacking the concept of right. In fact, he has taken strong exception to the constituent assembly decision to qualify the rights through reasonable restrictions.

"The framing of Indian Constitution", according to one of the tallest constitutional scholars of the day in England, K.C. Wheare, "was the biggest experiment ever made by men to secure for themselves justice, equality, liberty and fraternity". The incorporation of Articles 13 and 32 of the Constitution has made the fundamental rights heart and soul of the Constitution. The framing of the Constitution marked both the continuity of the colonial legality and de novo start. The guarantee of enforceable fundamental rights was a complete break, not only from colonial legality, but also from the regressive aspects of tradition, notorious for hierarchical and patriarchal values. The guarantee of equality was made in a highly stratified society known for most revolting kind of inequality and exploitation.

The guarantee of equality, freedom of speech and expression, right to life and liberty and special guarantee extended to the minority are lodestars of the Constitution. No wonder, right from the day the Constitution came into force, i.e. 26 January, 1950, the citizens started taking their rights seriously by filing writ petitions in the High Courts and the Supreme Court under Articles 226 and 32 respectively. It is this assertion of the rights coupled with the right of adult suffrage that entrenched Indian democracy and made it a model worthy of emulation by countries in Asia and Africa. When democracy came under strain during emergency, and the Supreme Court, in its hour of shame, ruled that very right to move the court for enforcement of the right to liberty guaranteed under Article 21 of the Constitution stood suspended, people reacted angrily and asserted their rights, and it was the assertion of democratic rights that made the Indian democracy resilient enough to overcome the blow of emergency.

The right, according to Ronald Dworkin, furthers equality and human dignity. For instance, the principle of one man one vote and one vote one value promotes equality. Similarly, the assertion of other guaranteed enforceable rights furthers equality.

The concept of human rights and human dignity were brought on the center stage through the Universal Declaration of Human Rights in 1948 — the most liberating document — the United Nation has framed and inspired our framers at the time of framing of the Constitution. The human right is not a gift of the State, and the Constitution merely recognised what is inherent in every human being. This notion of human right and dignity started since the days of Thomas Aquina, and acquired lodestone through philosophy of Immanual Kant, has now been crystallized into enforceable Bill of rights and must trump hoary, iniquitous and patronizing concept of duty. Thus, the concept of human dignity is inconceivable in absence of right.

Without disparaging the concept of duty, its regressive features associated with the old culture, notorious for the exploitation through varna system and subjugation of women need acknowledgment and interrogation. The disproportionate stress on the duty will take the country to the old days of Monarchy in which person had only duty towards the King. The duty, in absence of rights, is charter of all totalitarian Governments. The craving of the author for duty associated with monarchy sits at odd with the Preamble of the Constitution which describes India as a Republican Democracy, and which has been declared as a basic feature of the Constitution by the Supreme Court. The articulation of duty regardless of it’s socially regressive aspect would strike at the very foundation of republican values and Constitution, and the citizen would be reduced to mere subject.

Two phenomena: Right to adult suffrage and guarantee of enforceable fundamental rights were embraced by the citizen with fullest of the zeal after the promulgation of the Constitution and that have helped democracy to take root and become robust. These developments, even amidst deterioration at all level, are sufficient to repel the arguments that the present constitution is colonial.

The author has conveniently sidestepped the incontrovertible fact that the democracy has survived in India and this is, in large measure, is owed to the present Constitution, which has conferred fundamental rights on the citizen.
The critique of the book does not mean that present constitution is perfect; there are certainly fault lines— some of them are inherent such as unitary bias and majority of them as an excrescences from the practice --- these need interrogation through the mechanism of amendment, as was done through emancipatory 44th amendment, which neutralized the notorious 39th and 42nd amendment carried out in emergency. More than the written forms, it is a structural autonomy of the institutions that is required for sustaining the constitutional culture. No wonder Arghya Sengupta is silent on distinction between constitution and constitutionalism. Every country has its own Constitution. Even totalitarian countries like USSR and China, rouge like North Korea and regressively religious countries like Iran, Saudi Arabia and other countries in Middle-East have their Constitutions, but that doesn’t mean there is constitutionalism in these countries. Constitutionalism can be sustained through assertion of rights by citizen and robust functioning of autonomous institutions.

The author concedes towards the end of the book that ‘Constitution is creation of continuity and has shown its staying power’. He also candidly admits in the last paragraph of the book that ‘his is not a call for new constitution as we are living in polarized time’ and ‘India today needs an honest conversation.’

The book is a reflection of a priori judgement. What is required is a informed and dispassionate discussion on the fault lines of the constitution rather that attempting to discard it by characterizing it as colonial constitution, which emanates from sinister adage: “give a dog bad name and hang it†.

Though Sengupta intends to kick start the debate into reform of the constitution, it fits neatly into pattern marked by the clamour for the new constitution bandied about by persons who wish to make the identity of the country on ascriptive category.

(Reviewer: Vijay Kumar is a Senior Advocate , Supreme Court and author of the book ‘The theory of ‘Basic Structure’ : Saviour of the Constitution and Democracy]