New Delhi: The Constitution of India should not be treated as a holy book and worshipped, it should instead be engaged with, said Arghya Sengupta, founder of Delhi-based think tank Vidhi Centre for Legal Policy, while discussing his book The Colonial Constitution, Friday.
“The Constitution needs to be engaged with and its contents need to be critiqued and that is the spirit with which I have approached this book,” he said during the discussion which also had senior advocate Fali S. Nariman and was chaired by ThePrint Editor-in-Chief Shekhar Gupta.
Introducing the book and speaking about the Constitution, Shekhar Gupta said, “Everybody had expected in 1947, that India is an artificial construct, that it will break up…If India has stayed together and has become stronger over these decades, unlike every other new Republic that broke up — a lot of the credit goes to this Constitution.”
Sengupta, meanwhile, clarified that his book does not propose the drafting of a new Constitution. “This is not a call to draft a new Constitution overnight. Constitutions don’t get drafted overnight. But this is certainly a call to think about new constitutional ideas for India,” he explained.
Nariman too, reiterated that Sengupta “does not recommend scrapping the 1950 Constitution”. Instead, he explained that “in an intellectually stimulating narrative, he (Sengupta) advises some load-shedding, some pruning”.
He also urged people to “improve ourselves and not the Constitution”.
“Don’t blame the Constitution for every damn thing that goes on in this country. Please do realise the importance of the fact that it is the Constitution — whatever the criticism there may be about it — has kept the country together…
“…Whatever shortcomings there may be, need to be dealt with individually, compartmentally and not on the basis that this Constitution is oppressive and we should have another Constitution or we should think of something else. I’m sorry I don’t agree with that at all.”
Nariman added that he doesn’t think there would be another Constitution because “the tolerance level today in all parts of the world is extremely low, including (in) India”.
“The word ‘fraternity’ which is used in the Constitution is hardly ever mentioned anywhere else…We are not as fraternal as we should be. We should, therefore, improve ourselves and not the Constitution,” he said.
Asked about parts of the Constitution that may be “outdated now”, Nariman said, “I don’t know about outdated, but there is a theory about the Constitution that they only last about 20 odd years…Ours probably will last, and I hope it will last because it is only this document, in my view, that keeps the country together — whether you have a new Constitution or you don’t.”
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‘Book is a provocation’: Sengupta
In the introduction to his book, Sengupta spoke about a “standard script” on the Constitution, used for teaching law in India.
It usually involves talking about the Constitution being a “wonderful document”, giving every Indian freedoms, and the right to vote, setting up the institutions of the State, and “it is the reason as to why democracy has sustained”, he said. And while he agreed that this standard script was true, he claimed his book is a “provocation”.
“It’s a provocation because I feel that, while all of what is said is true, there is much more to the Constitution.”
Nariman added, “Let’s face it ladies and gentlemen, India’s Constitution is the longest in the world…is needlessly long, and it does have, as Sengupta says, a colonial past.”
“And it is because the very idea of a Parliamentary form of government, like that of Great Britain’s, was something that inspired 19th-century nationalists like Bal Gangadhar Tilak and 20th-century Indian nationalists…to demand from Great Britain a Constitution, along with a Bill of Rights, just as the English had in Britain,” he said.
Nariman also pointed out that sedition still survives in India.
“This is something that is common to many of the 56 commonwealth countries around the world, including India. My concluding message to you this evening is, the sooner we get rid of this anomaly, the better for the survival of democracy in this country,” he said.
“So let’s not think of a new Constitution for India, but instead and as a start, hope to usher in a new and better understanding of India’s Constitution, by first getting rid of Section 124A of Indian Penal Code, as well as its equivalent in the current version of the draft Bharatiya Nyaya Sanhita.”
In response to a question from the audience, Shekhar Gupta spoke about the addition of the word “secular” to the Preamble to the Constitution during the Emergency. “The Constitution is secular enough. There was no need even to put the word secular in the Preamble…There was no need to idiot-proof the Constitution,” he said.
‘Colonial facets of the Constitution’
While responding to audience questions, Sengupta clarified that, in the book, he touches on the “colonial facets of the Constitution”.
“This is not a party political debate. We tend to see everything in Delhi through Modi-tinted glasses…this is really a debate about what are the provisions of the Constitution that need to go, and what are the provisions that are needed for 21st-century India,” he said.
He also explained why he thinks the Constitution is colonial, listing four key reasons.
The Constitution, he said, is an “extraordinarily prescriptive document” — the longest Constitution of any country in the world. He added that the philosophy that underlies this is “Indians are not ready for a democracy, so we have to spell out everything in great detail”.
“So if you really enquire into the basis of this view, this is a colonial holdover — the idea that the natives cannot be trusted,” he said.
Further, he pointed out that the Constitution was “written in very dense legal jargon”. “Perhaps a truly post-colonial Constitution would be a simple document, written in simple English and vernacular languages, which is possible for every Indian to read,” he added.
He also flagged the retention of preventive detention laws. Citing Vidhi’s research, he claimed that in 2021, while 58 lakh people were “arrested”, 86.6 lakh people were “detained by the police…without any legal process”.
“This, unfortunately, is a reality that is sanctioned by the Constitution,” even if it wasn’t envisaged by the Constitution, he said.
Lastly, he said that the Constitution “perpetuated colonial institutions”.
He gave the example of the imperial police service and also pointed out that Article 312 of the Constitution enshrines the Indian Police Service, without any restrictions or changes in incentive structure or retraining of the policemen.
“This is not a sign of dismay, it is a wake-up call,” he said.
(Edited by Richa Mishra)