Republic Day: Analysing the Colonial Continuity of the Indian Constitution

Even though it may potentially be termed as colonial, the pillars on which it pivots are as domestic as they can be.

The primary issue to reflect upon is the context in which we must analyse the Indian constitution. It was devised in the aftermath of a bloody partition that resulted in the death of millions on both sides of the border.

(Photo: The Quint)

Republic Day marks the adoption of an extensively detailed constitution by a newly independent India. The question, or rather the polemics, of the Indian Constitution being an unwanted offspring of the British, that has sporadically emerged from the margins of political and legal lobbies, is increasingly gaining ground.

Over the years, the arguments used to substantiate this claim have significantly changed tone and tenor. Some of the most recent voices advocating for this change include Bibek Debroy who highlighted the need for Indian citizens to “embrace the idea of a new constitution” in light of the Indian economic growth story post the 2014 elections.

Notwithstanding the many adverse reactions to Debroy’s comments, the floodgates seemed to have been opened to a larger chunk of the legal and political community, now in congruence with the notion that the Indian constitution is, in fact, largely colonial.  

The Makers of the Indian Constitution Were Influenced by the West in General

Renowned Indian academic Shiv Visvanathan argues in favour of a new constitution on the grounds of “intellectual continuity” that reiterates peoples’ faith in their constitution. The most recent addition to this discourse is by noted lawyer, Arghya Sengupta, who labels the document as one that empowers a “government that towers over the citizens” which must necessarily be termed colonial. Essentially, those calling for a newer constitution seem to agree on a few areas that require revision such as a centralised form of governance, the laws on preventive detention, sharing of taxes (collected by the Centre) and funds (controlled by the Centre) to be reimbursed and distributed to states, lack of a clear division of power between the legislature and executive branches of the government, etc.

If one were to separate the strands of arguments surrounding this debate, it would appear that there are two parallel lines of reasoning intertwined with one another. One seems to debate, and consequently negate, the likelihood of the Indian Constitution as an illustration of post-colonial legalism, and the other declares the document as colonial and demands a newer one on an array of varying grounds of similar intent.

The primary issue to reflect upon is the context in which we must analyse the Indian constitution. It was devised in the aftermath of a bloody partition that resulted in the death of millions on both sides of the border. Incidentally, it was also the fruit borne out of an excruciatingly long and arduous freedom struggle that hinged on the principles of ahimsa, satyagraha, and swaraj.

We must remember that the makers of the Indian constitution were influenced by the West in general. For instance, the drafting committee of the Indian constitution borrowed the revolutionary phrase “Liberté, Egalité, Fraternité” from the French Constitution and the same can now be found in the Preamble to the Indian constitution.

Having said that, the very same document also provides a right to constitutional remedies that has given birth to the phenomenon now known as ‘Public Interest Litigation’ ( PILs). Laws propounded, via the medium of PILs, have only consolidated the position of the Indian judiciary in upholding the Fundamental Rights of its citizens in landmark cases that have shaped the contours of the lives its citizens lead. Some of these cases have dealt with the lack of a statute addressing sexual harassment at the workplace, custodial violence against women in prisons, the applicability of fundamental rights to transgender persons, environmental protection, decriminalising homosexual acts, and payment of minimum wages among others.

The Pillars on Which the Indian Constitution Pivots Are as Domestic as They Can Be

As is evident from Dr Ambedkar’s writings and speeches, once formulated, the values incorporated into the Constitution are not only sanctified but also maintained through a system of checks and balances. To say that the present Indian constitution has been weaponised, more than once, to aid and abet, the suppression, exploitation, and violation of these values would be an understatement. However, it is the wielder of the weapon that deserves our criticism. The tool used for destruction can be re-modeled to prevent further damage.

Similarly, in our case, the Constitution can simply be amended to plug the lacunae that currently allow for gross misuse by the executive. Even the most sardonic matrimonial lawyers agree that one of the more noteworthy grounds of distinction between Hindu and Muslim personal laws (in India) is the fact that marriage is considered a sacrament by the former and a mere contract by the latter. It may be contended that while the sacred values (the holy trinity of liberty, equality, fraternity) Dr Ambedkar refers to have been retained as the skeleton of the Indian Constitution, the overall document itself need not be viewed as sacred.

Even though the Constitution of India may potentially be termed as colonial, the pillars on which it pivots are as domestic as they can be. A monument can be refurbished so long as its foundations remain solid. Learning from the mistakes of our past does not make the resultant document a product of the past.

Those calling for a ‘new constitution’ exclusively on the grounds that the document must be negated because it is decisively colonial and therefore worthless may consider revisiting the consistently changing landscape of constitutional jurisprudence in India. Instead of acknowledging that some problematic features, of an otherwise well-drafted constitution, be discarded, insisting that the entire document be resurrected from scratch is a top-tier example of legal nihilism. Political theorist Madhav Khosla has termed the Constitution as a “pedagogical apparatus” that can used to shape a new society where democracy can flourish in all its glory.

We must realise that yearning for a perfectly autochthonous Constitution is an intellectual fallacy as no society evolves with the linearity of time. Lastly, the Constitution of India was drafted as a conduit for social, economic, and political reform, and it has achieved that purpose to a fair extent. To conclude, even though the Constitution of India may have risen from the ashes of colonial control and retained some of its residue, claiming the document as colonial and hence inefficient is nothing more than a red herring by the deniers of democracy and it must be viewed as precisely that.

(The author is an advocate at the High Court of Delhi and the author of “In the Body of a Woman: essays on law, gender and society” published by Simon & Schuster. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)