Emerging challenge to the Constitution

In 2023, voices demanding a new Constitution grew louder, bolder—fuelled by the need for consolidation of power at the Centre.

Students of Jamia Millia Islamia University prepare banners during a protest against the Citizenship (Amendment) Act in New Delhi in December 2019. The law sparked protests across the country, which were marked by readings of the Preamble to the Constitution. | Photo Credit: Altaf Qadri/AP

The Constitution was challenged in 2023 for being “colonial” and outdated. One of these challenges was explicit, with a call to action: the claim that the Constitution needs to be rewritten. The other was implicit: a demonstration of how the Constitution is colonial. If the Constitution is colonial and/or past its expiry date, then were all the Citizenship (Amendment) Act protesters misguided when they used the Preamble to protest? One cannot also help but ask, where does the controversy around Article 370 fit into this?

LISTEN: The Constitution was challenged in 2023 for being “colonial” and outdated. If the Constitution is colonial and/or past its expiry date, then were all the Citizenship (Amendment) Act protesters misguided when they used the Preamble to protest?

A brief opinion piece in Mint by Bibek Debroy, member of the Prime Minister’s Economic Advisory Council, became a talking point on whether India needs a new Constitution. Relying on a study by the legal scholars Thomas Ginsburg, Zachary Elkins, and James Melton that compared the endurance of world constitutions since 1789, Debroy argues that the average lifespan of a constitution is 17 years, and the Indian Constitution is 73 years old. He states unequivocally that “amendments won’t do”, there is a need to “go back to the drawing board and start from first principles. We the people have to give ourselves a new Constitution.” As to what is wrong with the Constitution, he argues that it is colonial, based on the Government of India Act, 1935. There follows a long list of rhetorical questions that indicate which provisions need to go when this rewriting process starts. Among them are judicial appointments, the jurisdiction of High Courts, electoral reform and the Rajya Sabha, special laws including Article 370, and the reorganisation of States.

The aim behind these suggestions is to facilitate Central “executive efficiency”, governance involving “law and order, and swift dispute resolution”. On the point of law and order, partial praise is given to “the three recent Bills, on the criminal side”. Given that the items listed have been direct targets of the current government, it is safe to read this as an indicative list of changes the government will introduce in future. As there is no mention of rights or minorities or anything that matters to people other than how to indirectly praise the government, this opinion piece is product placement. It serves as a warning by the government of things to come.

Jawaharlal Nehru addressing the General Council of the All-Jammu and Kashmir National Conference that decided to set up the Constituent Assembly for Kashmir, in Srinagar in October 1950. | Photo Credit: The HINDU ARCHIVES

What is interesting is the possibility of going after the “first principles” of the Constitution itself. Until now, the ruling government’s agenda has been carried out ostensibly within the framework of the Constitution: by Governors in recalcitrant States withholding assent to Bills, reading federal division of powers in such a way that Delhi’s officers come under Union control, putting in place far-reaching amendments to citizenship law because the Constitution gives the legislature unusual powers on questions of citizenship.

Debroy’s legitimising narratives are worth noting: the Constitution’s purpose is characterised as executive efficiency of the Centre, maintenance of law and order. If independence of High Courts, the Rajya Sabha, and Article 370 are impediments, they need to go.

The Constitution is ‘colonial’

Several commentators have been concerned that a call to do away with the Constitution is dangerous. With Debroy’s brief comment receiving a fair bit of visibility, the question of whether the Constitution is fundamentally problematic is in the air. It is here that Arghya Sengupta’s book The Colonial Constitution comes in. Sengupta is one of the founders of the Vidhi Centre for Legal Policy, a leading legal think tank. The organisation has supported the drafting of important legislation such as the Aadhaar Act and the Data Protection Bill.

At an East Punjab transit camp in January 1948. After Partition, members of the Constituent Assembly brought in ethnicity and religion-based ideas of citizenship, on which it was difficult to get a consensus, and Ambedkar left it to the legislature.   | Photo Credit: THE HINDU ARCHIVES

Sengupta’s argument is both emotional and theoretical. He is ashamed to live under a Constitution that made it possible for migrant labourers to suffer the indignity of squatting and being sprayed with bleach in Bareilly during the pandemic. Theoretically, Sengupta finds the Indian Constitution as one under which a “towering state… stifles individual initiative” and “diminish[es] the role of local communities”. Although Sengupta observes that the Constitution was not the brainchild of one man alone, B.R. Ambedkar’s key role in drafting a “colonial” Constitution is the heart of the book. In the examples of colonial provisions identified by Sengupta—emergency powers that make it a “police constable” Constitution, the inclusion of preventive detention, Central rather than local governance—“the imprint of Ambedkar, champion of a big state with a powerful Union government, was unmistakable”. Ambedkar unapologetically utilised provisions from the Government of India Act, 1935, in his shaping of the draft of the Indian Constitution. Here a clarification is in order: Sengupta acknowledges that some of these provisions were inserted in response to Partition, such as preventive detention to deal with riots and curfews. To what extent such provisions bear the imprint of a colonial legacy in general and that of the Partition aftermath needs to be worked out.

To my mind, Sengupta’s deeper challenge to the Constitution is that “Constitutions don’t change countries, [but] countries create Constitutions that are conducive to their time”. This position was spelled out in an interview with Karan Thapar. Sengupta disputes the claim that a constitution defines a people.

He also believes that a people are represented by the government they elect, and therefore one cannot say that a constitution creates a people. Here the challenge to Ambedkar and Nehru is clear—neither had faith in informal social relations to create a just society, thereby deferring to a powerful state with a Constitution. Here is Ambedkar’s famous statement during the Constituent Assembly Debates in November 1948:

“It is only where people are saturated with constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic. In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration.”

Highlights

• In 2023 the Constitution was challenged as being colonial and outdated.
• Bibek Debroy’s opinion piece was product placement, a warning of things to come.
• The aim behind these suggestions is to facilitate Central “executive efficiency”, governance involving “law and order, and swift dispute resolution”.
• The also indicate the possibility of going after the “first principles” of the Constitution itself.

Issue of constitutional morality

Sengupta’s position that the people of India can be identified with the government they elect does not address the issue of constitutional morality that was on Ambedkar’s mind and does not address Ambedkar’s view that the Constitution “safeguards against the tyranny and discrimination of the majority”. It is a particular theoretical position where all politics can be collapsed into a social contract of equals and negates any nuanced consideration of how democracy works or can be distorted.

A sculpture of the Constitution at Dr. B. R. Ambekdkar Centre in Telangana’s Hanmakonda town. The Constitution became the supreme law of the nation, replacing the Government of India, after it was passed by the Constituent Assembly on November 26, 1949, and became effective from January 26, 1950.  | Photo Credit: G.N. Rao

For instance, it does not account for campaign finance (or the rules around it), or the independence of institutions such as the Election Commission. It is also the polar opposite of the Basic Structure doctrine laid down by the Supreme Court that sought to protect parts of the Constitution such as Fundamental Rights from legislative amendment. This position also explains why the judiciary does not feature in Sengupta’s account of the origins of the Constitution. Legal historians and sociologists have argued that it was through cases from the periphery that the Indian Constitution was formed in its initial years, and through creative judicial interpretation that the substance of equality and non-discrimination were carved out.

Dr Rajendra Prasad, President of the Constituent Assembly, signing the text of the Constitution in Novemner 1949. | Photo Credit: THE HINDU ARCHIVES

What appears to be common to both Debroy and Sengupta is the assumption that the point of the Constitution is to facilitate the government elected by the people. This is done in three ways. The first is characterising everything problematic with the Constitution as colonial. The word “colonial” implies that the text is not really Indian, it is not ours. It is an imposition and a relic from another time. In contrast, anything that is “ours” should be accepted. This line of argumentation whitewashes the dominant role of Partition and communal conflict in shaping the indigenous “ours”. There is scholarship on how the current Indian Constitution comprises two Constitutions: a liberal Constitution envisaged by the framers, and a divisive Constitution shaped by Partition. Several provisions of the Constitution facilitate communal divisiveness both through silence and through inclusion.

One prominent example is a notwithstanding clause on citizenship. After Partition, members of the Constituent Assembly brought in ethnicity and religion-based ideas of citizenship which were too difficult to deal with in arriving at a consensus, and Ambedkar deferred this decision to the legislature. This allowed legislation—both colonial legislation (the Foreigners Act 1946) and the Citizenship Act and its amendments—to take Indian citizenship down a murky exclusionary route. The other example is the provision on cow slaughter: although placed within the seemingly harmless Directive Principles, it was mobilised in States where the Hindu Mahasabha was strong.

As Ian Copland has argued, the inclusion of the provision on cow slaughter was “the first substantial victory of the nascent Hindu right”. Downplaying the unequal bargaining power of the Hindu Right in an origin story of the Constitution (Sengupta argues that the Hindu Mahasabha was a “fringe player” when the Constitution was being drafted, but there are accounts that dispute this and point out ways in which Hindutva ideology and resources permeated representative bodies in general), and not identifying the salience of divisive communalism renders Sengupta’s account problematic.

The second challenge posed by Sengupta and discussed earlier is the colonial basis for a towering Centre. The current government has expressed fidelity to “one-nation, one-election”, “one-nation, one-tax”, “one-nation, one-ration card”. Centre-State relations form the basis for most of the changes brought about by the current government and the items on Debroy’s list. This makes sense given the reconfiguration of political power away from two decades of coalition governments to a single-party government at the Centre since the 2014 election. To seek mobilisation of a pan-India majority community under a constructed Hindu identity is the core basis for the current government’s power.

It may be asked, is this because we have a colonial Constitution? As Sengupta points out, Ambedkar pushed for a strong Centre. This is contrary to the Gandhian alternative of “decentralised government based on village panchayats”. There is evidence to suggest that Nehru and Ambedkar were in favour of Central power to divert power away from the princely states. The origins of “Akhand Hindustan” was the mobilisation of Hindu princes at the provincial level through voluntary associations such as the Vedic Council, the Arya Rajsabha, and the Arya Vidyasabha, which sought to find good governance practices in ancient Hindu ethics.

Shift in debates on federalism

Coupled with the construction of homogenised communities for electoral purposes, debates on federalism shifted from minority protection to contests over sovereignty. It is in this context that Ambedkar wanted the Constitution to “discard the village” and adopt “the individual as its unit”.

Further, Ambedkar did not advocate an all-powerful Centre that would be able to restructure Centre-State relations for the sake of oneness, except by following a “dual polity” structure laid out in the Constitution. As we saw above, he plainly did not “trust the Legislature to prescribe forms of administration”.

The third fundamental challenge is the characterisation of the Constitution as a piece of legislation. The Constitution is a text made by a legislative body, and hence the textual affinity with the Government of India Act, 1935, becomes suspicious. Thus, if there is anything wrong with the current state of affairs, then we need a new constitutional text (according to Debroy). If there is any unsavoury aspect of political life such as the indignity suffered by migrants at the hands of state officials, then the founding document is to blame (according to Sengupta). If there is something deeply problematic about the Constitution, then the only solution would be to legislate again. And that would be under the aegis of whatever government is in power.

In Arghya Sengupta’s The Colonial Constitution, the line of argument whitewashes the dominant role of Partition and communal conflict in shaping the indigenous “ours”.

This is precisely where recent legitimate fears around Article 370 lie. It is not that the constitutional text provided for a special status to Jammu and Kashmir or even that the government would fulfil its electoral promise on Kashmir. It is a pliant Supreme Court that allows the government to extinguish States for whatever reason, and the Constitution is assumed to have no purpose other than to facilitate the government in power. This is perhaps the real challenge the Constitution faced in 2023: it showed signs of redundancy.

In an interview, Professor Tarunabh Khaitan recently observed that if the Modi government comes to power in 2024, it may find the political will to rewrite the Constitution or vigorously amend it. It will no longer need the pretence of neutrality or have to kill the Constitution slowly with a thousand cuts or, as suggested above, mobilise constitutional silences on citizenship or loaded provisions on cow slaughter.

Even if the government has officially distanced itself from Debroy’s view, plausible deniability assists with the spread of dangerous ideas. Even if Sengupta does not advocate a new Constitution, there is selective characterisation of the Constitution as colonial rather than a Partition Constitution, or a contested parchment, parts of which have been mobilised by resource-backed Hindutva authoritarians. Surely, the disregard for dignity of workers in Uttar Pradesh is closer in distance and spirit to the muzzling of anti-nationals or desecration of graves than to Ambedkar’s colonial tendencies.

Suryapratim Roy teaches law at Trinity College Dublin. He writes on citizenship, climate law, and Indian constitutionalism.