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  • Piyush Rangra

Is the Constitution of India colonial?

In a Book Launch event held at India International Centre on October 6th, 2023 of the book titled - The Colonial Constitution authored by Arghya Sengupta, who is the Founder and Director of Vidhi Centre for Legal Policy, an answer to the title of our report was provided for with diverging views.

The book launch was followed by a discussion on the book amongst Shekhar Gupta (Founder and Editor-in-Chief of the Print), Arghya Sengupta (Author of the book) and Fali Nariman (Senior Advocate and Eminent Jurist). In his opening remarks, Mr Gupta remarked the book as a libertarian view about the Indian constitution and gave credit to the Constitution of India for making India stay on as a republic till date while during the same time period many republics like Yugoslavia broke up to make way for new nation states. However, the author of the book stated that his work is a provocation and that the Constitution is not holy or sacrosanct, but is needed to be engaged with and critiqued as and when necessary.

Mr Sengupta provided three arguments to justify the Constitution of India as colonial. Firstly, the Indian constitution is guided by a colonial philosophy that viewed Indians as inferior to Europeans therefore the Constitution spells out everything in great detail and is extraordinarily prescriptive in nature. Secondly, the constitution of India has perpetuated many colonial services such as the Indian Police Service that played a critical role in safeguarding imperial rule. Thirdly, Fundamental Rights are restricted within the Constitution due to the retention of a colonial policy like Preventive Detention for which a figure of 2021 was cited under which 56 lakh citizens were arrested for a crime in India whereas 86.6 lakh citizens were detained by the police. Furthermore, Mr Sengupta invoked Gandhi’s call for a Constitution that is instinctive to India in his call for new constitutional ideas in India.

Eminent Lawyer Fali Nariman in his opening remarks invoked Ambedkar’s remarks stating the Constitution of India as being borrowed from the Government of India Act 1935 and offering no apologies for the same. However, Mr Nariman stated that Ambedkar did offer apologies for the Constitution providing a framework for administrative machinery in greater detail. Mr Nariman called the book an intellectually stimulating perspective and invoked many personal anecdotes in his remarks. Other key observations and remarks of the discussion include Mr Nariman calling for an end to colonial laws like Sedition Law and Preventive Detention. Along with this, Nariman remarked that super majoritarian and majoritarian governments tend to be worse than a coalition government and the institution of Governor is colonial and must be reformed.

Moreover, Mr Sengupta also projected the Seventh Schedule of the Constitution that carries Union List, State List and Concurrent List and Fundamental Duties as two key issues which need to be dealt with for having a successful constitution. The Basic Structure doctrine was declared as an excellent dogma by Mr Nariman and justified for having no boundary due to the fact that amendments can never be foreseen. Shekhar Gupta called the Constitution of India as Secular and remarked that there was no need to add the word Secular in the preamble as there is no need to idiotproof the Constitution. On the Constitution being an enabler of excessive load on judiciary, Mr Nariman responded by saying that the Constitution should not be blamed for everything and Mr Gupta replied that load is due to all governments being litigious in their pursuit and not getting out of litigation. The discussion ended with a vote of thanks to the discussants and audience.

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