REVIEW OF LITERATURE

THE “COLONIAL CONSTITUTION” BY ARGHYA SENGUPTA

Academic Year : 2024-2025

Semester-III

Submitted by:
JANHVI ASHOK DHANVIJAY
UID: UGJ23-21

submitted to:
Dr. DIVITA PAGEY
(ASSISTANT PROFESSOR OF LAW)

November 2024

MAHARASTRA NATIONAL LAW UNIVERSITY, NAGPUR

ABOUT THE AUTHOR
Arghya Sengupta is a respected Indian constitutional law scholar and founder of Vidhi
Centre for Legal Policy, an independent legal think tank. Known for his insightful analyses of
India's constitutional framework, his work delves into complex areas of law with a focus on
improving policy and legal reforms. Sengupta’s book, “The Colonial Constitution”, critiques
India’s post-colonial legal system, suggesting that the constitution, though born after
independence, retained many colonial era structures that shape India’s governance today. His
approach reflects a balanced yet critical stance on the impact of colonial legacy on modern
India, questioning whether the Indian Constitution truly embodies the democratic ideals it set
out to achieve. By engaging with these themes, Sengupta sparks debate on reform and the
need for a constitution that aligns more closely with the diverse democratic aspirations of
Indian society. His work appeals to both academics and those interested in India’s evolving
legal landscape.
CHAPTERS
The “Colonial Constitution” challenges readers to rethink the foundation of India’s
independence. Commonly, India’s Constitution is celebrated as a revolutionary break from
British rule, symbolizing the country’s emergence as a democratic republic. Sengupta,
however, argues that this notion is only partially true; he claims the Indian Constitution is, in
certain respects, a “colonial document.” According to Sengupta, while the Constitution
introduced new ideals, it still incorporates structures, laws, and policies that mirror colonial
priorities, particularly in its support for a centralized government and limitations on certain
freedoms. This review examines Sengupta’s main points, his critique of foundational choices,
and their implications in the current political landscape. To fully appreciate Sengupta’s
argument, it’s essential to understand the historical journey from colonial governance to
independent India. Following the Montagu-Chelmsford Reforms (1919) and the Government
of India Act (1935), Indian leaders sought greater autonomy within a constitutional
framework that Britain had largely designed to retain control. These documents, which aimed
to strengthen law and order rather than democratic representation, shaped the governance
structures that would later influence India’s own Constitution. Sengupta emphasizes that
when the Constituent Assembly met to draft India’s founding document, they were working
from a legal structure rooted in these colonial acts. The Constituent Assembly, led by Dr. B.R.
Ambedkar and other prominent leaders, wanted a departure from British rule. Yet Sengupta
argues that India’s founders, bound by practical considerations, chose to retain significant
aspects of colonial-era laws, especially from the Government of India Act of 1935, believing
they could modify these to suit an independent India. Sengupta suggests that while some
adaptations worked, others merely carried forward colonial governance methods, leaving an
imprint on the nation’s highest legal framework.
One of Sengupta’s central critiques is that the Indian Constitution places too much
power in the hands of the central government. He contends that this centralized authority
reflects a colonial mindset, in which the British prioritized control over Indian territories. By
embedding this structure into the Constitution, Sengupta argues, India’s founders indirectly
promoted a colonial-style governance model that limits regional autonomy. The central
government retains significant authority over states, from emergency powers to legislative
supremacy, which mirrors the British strategy of keeping local powers under strict oversight.
This approach, according to Sengupta, has had long-term consequences, particularly for
federalism in India. He suggests that regions with distinct cultural identities, such as the
northeastern states and Jammu & Kashmir, feel alienated due to this centralized framework.
Sengupta contrasts India’s centralized model with that of the United States, which
emphasizes state autonomy and a more balanced distribution of power. In Sengupta’s view, a
more decentralized approach could better serve India’s diversity, enhancing regional
autonomy without compromising national unity. Sengupta’s examination of individual rights
under the Constitution brings to light another colonial remnant: preventive detention. Under
British rule, preventive detention laws were used to suppress dissent and curb civil liberties.
Surprisingly, this provision was retained in the Indian Constitution under Article 22, allowing
authorities to detain individuals without trial for specific periods. Sengupta argues that this
contradicts the democratic ideals espoused by the Constitution’s framers and reflects a
lingering colonial influence. While preventive detention was initially justified as necessary
for security, Sengupta contends that it has since been used to stifle political dissent, a practice
that seems more in line with colonial governance than with a democratic state. Sengupta’s
critique aligns with broader concerns about human rights and civil liberties in India. He
argues that preventive detention laws, along with laws like the Armed Forces (Special
Powers) Act (AFSPA), enable the government to maintain order but at the expense of
individual freedoms. By retaining these colonial-era measures, Sengupta suggests, the
Constitution inadvertently allows modern governments to employ methods of suppression
reminiscent of the British regime. In discussing the impact of colonial legacies, Sengupta
highlights the critical contributions of Dr. B.R. Ambedkar, the chief architect of the Indian
Constitution. Sengupta acknowledges Ambedkar’s commitment to social justice and his
efforts to build a document that would uplift marginalized communities. Ambedkar’s vision
included provisions for fundamental rights, affirmative action, and social justice, which
Sengupta views as vital departures from colonial policies that ignored social inequality.
Sengupta, however, argues that Ambedkar’s vision of a socially transformative Constitution
was somewhat compromised by the need to maintain a centralized governance structure. The
inclusion of Directive Principles of State Policy, which encourage social and economic
justice, reflects Ambedkar’s aspiration to transform society. Yet Sengupta notes that these
principles are non-justiciable, meaning they cannot be enforced in court. This limitation, he
argues, weakens the Constitution’s capacity to drive social change. Sengupta’s analysis
implies that while Ambedkar’s ideals are embedded in the document, they are constrained by
the practical compromises of the time, which prioritized state power over social reform.
Sengupta also addresses the absence of direct democratic mechanisms, such as
referendums, in the Constitution. He argues that Mahatma Gandhi’s vision of village-level
governance and self-sufficiency is notably absent, which he sees as a missed opportunity to
empower citizens. Gandhi advocated for Panchayati raj (village republics), envisioning a
decentralized system where communities could govern themselves. Sengupta posits that
Gandhi’s ideas were sidelined in Favor of a centralized, representative democracy, which
ultimately prioritized state control over citizen engagement. However, Sengupta
acknowledges the rationale behind choosing representative democracy. Given India’s size and
diversity, direct democracy could have created fragmentation rather than unity. Sengupta
contends that while representative democracy has drawbacks, it has allowed India to mediate
differences and promote inclusive development. Nevertheless, he suggests that incorporating
more direct democratic elements, even at local levels, could enhance citizens’ participation
and foster a more responsive government.
One of the book’s more controversial claims is Sengupta’s exploration of the
influence of Hindu nationalism on the Constitution. He draws attention to the Hindu
Mahasabha’s “Constitution of Hindustan Free State”, which proposed a Hindu-majority
nation while allowing limited space for other communities. Sengupta argues that while the
Indian Constitution is secular, certain foundational choices echo the Mahasabha’s vision,
particularly in how the state perceives unity and national identity. Sengupta contrasts this
with Dr. Ambedkar’s stance, as Ambedkar fiercely opposed the Hindu Mahasabha’s
exclusionary agenda, advocating for a pluralistic society where all communities are equal.
Sengupta contends that while India’s founders rejected the Mahasabha’s ideology, echoes of
its vision can still be detected, especially in contemporary discussions on national identity
and citizenship. Sengupta ultimately challenges readers to consider whether the Constitution
is truly a national document or a relic of colonial governance. He argues that while it served
as a unifying force post-independence, certain colonial aspects persist, particularly in
centralized governance and limitations on personal freedoms. Sengupta believes that by
recognizing these elements, citizens and lawmakers can foster a more balanced and inclusive
constitutional framework. Sengupta also highlights how movements for autonomy, such as
those in Jammu & Kashmir or the Northeast, reflect a constitutional struggle for regional
identity within a centralized system. He points out that while the Constitution has evolved to
accommodate new demands, its colonial structures sometimes hinder progress.
CONCLUSION
The “Colonial Constitution” by Arghya Sengupta offers a fresh perspective on India’s
Constitution, encouraging readers to think critically about its origins and relevance today.
Sengupta’s book is not about dismissing the Constitution but about understanding it better by
exploring both its strengths and its colonial influences. He highlights that while the
Constitution upholds democratic values, it also keeps some aspects of colonial rule,
especially in centralized control and certain limitations on individual freedoms. Sengupta
argues that India’s Constitution should be seen as adaptable a “living document” that can
evolve with the times. By recognizing its complex roots, Sengupta believes India can move
toward a fairer form of governance that values regional diversity, protects individual rights,
and strengthens democracy. “The Colonial Constitution” is a thought-provoking read for
anyone interested in how colonial history still influences Indian law and governance, and how
India can grow beyond these influences.