In an interview to discuss his new book The Colonial Constitution, Arghya Sengupta told Karan Thapar why he believes India’s constitution is colonial. Thapar challenged the view put forth by Sengupta – who is the director, Vidhi Centre for Legal Policy – and the arguments on which it is based, in a thrilling 45-minute interview.With minor edits for style, this is the full text of their conversation.Karan Thapar: Hello, and welcome to a special interview for The Wire. A recently published book argues that India’s constitution is colonial. It’s called The Colonial Constitution, and it raises a fundamental question: is the book right and is our constitution really colonial, or is that a mistaken view? Joining me now to answer that question is the author himself, the research director of the Vidhi Center for Legal Policy, Arghya Sengupta.Arghya Sengupta, I want to focus this interview on your belief that the Indian constitution is colonial, and if I’ve understood your book correctly you have two broad arguments for saying so. Let’s go through them one by one. To begin with, you write, “The constitution of India is a colonial document. It’s colonial for the simple factual reason that it is heavily borrowed from the Government of India Act 1935, a fact that has been widely glossed over”.Now, that’s true, but only in the sense that that’s the broad outline structure, and you can see that when you go on in your book to say “Fundamental rights were guaranteed to every citizen of independent India in a marked departure from colonial rule”. So is there a contradiction inherent here?Arghya Sengupta: It needn’t have been based on the Government of India Act of 1935. When the constitution framers started their task in 1946 on the 9th of December, the question that they asked could have been ‘What kind of India do we envisage?’ It could have been, ‘What is the constitutional structure that gets us to that India’, but rather the questions that were asked were: ‘How can we adapt the Government of India Act to make it suitable for independent India?’, ‘What do we need to change, what do we need to incorporate?’ The fact is, that they didn’t start off with a clean slate. What they chose, as what was written on the slate before they started, was factually the Government of India Act. That may not be a bad thing entirely, because they were in a hurry and they needed to have something to begin with; but it is a fact and that fact has been lost.Karan Thapar: Let’s pick up on the point you make, that it needn’t have been based on the Government of India Act. In fact, in your book you say, “Borrowing from the Government of India Act was a missed opportunity”. You then say, “Ambedkar and the rest of the drafting committee members did not consider forms of local government and constitutional thinking in ancient and medieval India”. But surely, India is far too big a country to have been ruled by village panchayats. Leave aside second and third century BC Buddhist sanghas and shakyas.Arghya Sengupta: Absolutely. I think that there’s one fallacy that we always tend to make when we think about going beyond colonial rule, which is that we tend to go back 2,000 years. You’re absolutely right, that we cannot go back to a pre-modern state. It cannot be anyone’s argument that we go back to a state that essentially is not modern. But at the same time, there has been a lot of, if I may use the term, constitutional activity in India right from the Buddhist shakyas that you spoke about. Even before that, right down through the Cholas in the South, where a lot of very interesting stuff went on, through the time of the Mughals. As many people have written about the medieval period, India has always been a contest between empires and kingdoms, and you see how division of powers have been worked out in a very interesting way. There’s a lot of material there. But what happens is, and I don’t blame the constitutional framers as I’ve said, is that the exigencies of time and the urgency of having a new constitution come out quickly means that they don’t go into that exercise at all, and they take what is closest at hand.Karan Thapar: Let me once again quote from your book. You say, “Vesting sovereign power at the local level, which clearly our constitution did not do, would enable individuals to directly participate in government”. There’s a great danger that if that had happened, you would have ended up prioritising community rights over individual rights, thus enforcing and reinvigorating caste and khap panchayats, and reducing individuals to the status of simply members of a community rather than individuals in their own right. That would not have been modern, that would have emphasised caste and khap panchayat, which are retrogressive parts of our past. Surely, that’s not what we wanted.Arghya Sengupta: Yeah, we didn’t want that. But it’s not essential that if we are talking about local government, that we are talking about caste and khap panchayats. I think that what you point out, it could have been a real danger at that point of time. But the question is this: that when you are drafting a constitution you are not drafting a constitution for five years, or 10 years. If that were to be the case, I fully agree with you that we cannot go down and say that ‘Okay we want a local government’, because a local government would possibly have been riddled with the problems that you mentioned. But now we can see that in 1990, when the 73rd and 74th Amendment were enacted by Rajiv Gandhi’s government, what are we talking about? We are talking about decentralisation. What is decentralisation? Decentralisation is greater power to the people, bringing the power of sovereign power closer to the people.Karan Thapar: But surely you are not saying that the absence of the panchayat laws in 1947, 1948, 1949 meant that the whole constitution therefore became colonial?Arghya Sengupta: No, not at all. That is a very simplistic claim to make. But there was an alternative idea that was proposed.Karan Thapar: But was there? That’s the point I’m making.Arghya Sengupta: Yes.Karan Thapar: The alternative idea years would have inevitably led to a situation where individuals would have been submerged under communities, where the traditions of caste, khap and community would have gotten priority over the right of a single man or single woman. That would have been un-modern.Arghya Sengupta: That’s right. The fact that we are still asking that question, and it is a very legitimate question to ask even 75 years later, shows that there is much work to be done in trying to ensure that the individual and community can live in harmonious coexistence with power vested at a local level. It is not an inevitability.Karan Thapar: But that argument you’re making doesn’t mean that the constitution is colonial, it simply means that some of the rights the constitution confers on people haven’t actually been implemented and haven’t gone down far enough. In other words, it hasn’t been perfectly executed. Imperfection in the execution means you still have these problems at ground level.Arghya Sengupta: No, but the constitution didn’t envisage any significant power at the ground level. It’s a fact that the constitution envisages a very powerful union government in general.Karan Thapar: I come to the power of the union government in a moment’s time, but let’s take up this point you’re making, that because the constitution didn’t envisage significant part at the local village level or ground level, therefore it’s colonial. That is what I’m disputing. It may not have transferred power decentralised all the way to the bottom, but the conclusion doesn’t mean that therefore it’s colonial.Arghya Sengupta: You’re right, in the sense that I say it’s colonial because it doesn’t devolve power to the people effectively. That is the way in which it is colonial.A Constituent Assembly of India meeting in 1950. B.R. Ambedkar can be seen seated top-right. Photo: Unknown author, Public DomainKaran Thapar: Let me then counter that in this way: you claim this is a colonial constitution, yet this constitution confers every single fundamental right on every single citizen of India, that not a single colony ever had.Arghya Sengupta: That’s right.Karan Thapar: Secondly it has a fairly well-defined parliamentary system, federalism, a division of power, checks and balances, and a strong commitment to equality which colonial systems do not have. Liberty, fraternity, freedom of speech, and most importantly of all, this constitution guarantees the right to vote to every Indian over the age of 18, regardless of caste, creed or gender, something that didn’t happen in the UK till 1918.Arghya Sengupta: That’s right.Karan Thapar: It didn’t happen in America till 1920, and if you look at the situation facing Blacks not till the mid 60s. Yet you still call it a colonial constitution.Arghya Sengupta: All of what you said, I fully agree with. This is the standard script of the constitution of India that we all have been brought up with for 75 years, and there’s a reason why it’s a standard script, because it’s true. All these things that you mention are true. The fact is that, as I write in my book, there is a lot to celebrate in this constitution. Merely the fact that we call it a ‘colonial constitution’ does not mean that it should be rubbished, or thrown into the dustbin, not at all. That is not my claim.Karan Thapar: It’s only colonial in that it uses and adopts the outline formal structure of the Government of India Act, having kept that structure of administration and governance intact. It’s actually infused into the constitution a million things that the British didn’t have. The structure may be that of the act, yes, but what lies behind the structure in terms of rights is so different.Arghya Sengupta: Yes, so what lies behind the structure as you said is rights, but let’s see the other side of the coin. What also lies is a huge slew of restrictions on those rights, and I think this is very important for us to understand: why is it that every government in democratic India, irrespective of political party, has not removed the law on sedition? Why is that the case? The case is because constitutionally, what we have set up is a law and order state.Karan Thapar: Forgive me, you’re an expert and I am not. But if I am correct, the first couple of high court judgments actually struck down sedition that’s right and that’s why the first amendment was passed to bring sedition back in. So the original constitution as interpreted originally, actually didn’t have sedition – it was the first amendment that brought it back.Arghya Sengupta: Well, this is a complicated story because it was always intended to have it. But the judges held otherwise, and so Nehru brought it back, because he felt that we need it because of Gopala and so on.Karan Thapar: The reason that judges thought otherwise is because the constitution gave them grounds to do so. The attack you’re making on the constitution, that it retains sedition, is actually invalidated by the fact that courts like I think it was the Punjab high court that actually struck it down, believing that the constitution did not permit it.Arghya Sengupta: So that wasn’t the solution. It was your namesake actually, Romesh Thapar – a very famous case in the Supreme Court which actually said that the freedom of speech and restriction cannot not be limited by, and in that case it was the magazine which was called Cross Roads, and Organiser was also the RSS magazine which was also…Karan Thapar: Perhaps out of honesty I should admit he’s my first cousin.Arghya Sengupta: All right, should have known that there’s a connection.Karan Thapar: But let’s come back to this: the important thing and this is again apparent in your book, is that on the one hand you call the constitutional colonial and I’m disputing that because of the enormous number of rights it confers, which no colony ever had, no empire would ever have given. But you have another, I think odd point in that. You say that on the one hand is colonial, and on the other you go to a great extent to point out how the constitutional advisor B. N. Rao had made an enormous effort to adapt aspects of western constitutions which we were taking on, because he wanted to ensure that those aspects fitted India’s reality. This is what you write, “During his extensive travels abroad, Rao realised that a postcolonial constitution like India’s could not simply replicate a western stereotype. It would have to adapt such models to suit the needs of an aspiring constitutional democracy”. Very importantly you add, “Bold, original thinking was the need of the hour to decolonise the constitution”. If what you say about Rao is right, then clearly it can’t be that the constitution that emerged is colonial.A postal stamp of B.N. Rau. Photo: Wikimedia Commons/ India Post, Government of IndiaArghya Sengupta: That’s right. I’m never doubting the intention of any of the framers, including Rao. I think the idea always was that we need a system that works for India. The question is what would work for India? Here, the idea that came to the framers as almost natural is that we need a large state that is based on the centre’s power in New Delhi, and that is what will work wonders for India. At its core, this idea that a country as large as India will be ruled with a from a powerful centre in New Delhi, with powers to ensure law and order, preventive detention and all kinds of activities that restrict rights of individuals…Karan Thapar: Law and order actually was passed down to state levels. Preventive detention may not have been, law and order actually is a state prerogative.Arghya Sengupta: I use law and order in terms of the normative conception of law and order, and not the legal question of who has competence to deal with the question.Karan Thapar: You’re now coming to the second broad argument on which you base your claim that India’s constitution is colonial, the fact that the constitution created a strong central government in Delhi. This is what you write, “The Indian constitution is colonial in a more conceptual sense. It sets up a government that towers over the citizen, much like colonial governments tend to do”. But I put it to you, one, that was a reasonable response to the trauma of Partition, and as you were hinting a moment ago it was probably a very necessary response to the fact that India is a heterogeneous country, with a multiplicity of ethnicities, castes, creeds, cultures, cuisines and languages. You needed a strong centre to hold this country together. Therefore this strong centre is not a colonial influence, it’s a reflection of India’s reality.Arghya Sengupta: That’s right. So as I say in the book, the book is an origin story – it’s a story of how we got the constitution. I certainly have some views in terms of what it should be, but that’s not what the book is about. It’s neither a celebration nor a critique of the constitution, but a fact of what the framers were thinking and to set the context straight on that. As far as the specific points that you make, of whether it is a reasonable choice, yes of course it’s a reasonable choice to make. We were, as as I said, on the 9th of December 1946…Karan Thapar: Excuse me, I’m interrupting, but it’s not the reasonableness of the choice I’m questioning, nor you. What I’m questioning is that you call a strong central government colonial. I’m saying it’s not colonial, it’s a reflection of understanding the reality that without a strong central government, this country would have fallen apart.Arghya Sengupta: Everything has many impulses. I think as you rightly say, that one of the key things that the framers are bothered about in 1947 – there’s Partition that’s happening is that there must not be secession of this kind, and we must ensure that there must be a strong centre to make that happen.Karan Thapar: Also, they were bringing together a patchwork of 560 odd princely states that were not directly under British control, although they were closely allied to it. Once again, there was a great fear that if you don’t have a strong centre, these 562 states that have never been united or part of India in the government sense, would actually fracture the country.Arghya Sengupta: That’s right, and I think we need to just unpack what we mean by a strong centre. I think that’s where much of the discussion is in the book, is the fact that at that point of time as you remember the Cabinet Mission plan had come in. The Cabinet Mission plan had said that the central government would have only three subjects – Foreign Affairs, Defense and Communications – broadly I am simplifying here. Everything else would go to the states. This was the last ditch effort.Karan Thapar: States grouped in three.Arghya Sengupta: Yes, states grouped in three. This was a last ditch effort to try and keep Pakistan as part of the country. But when it was realised that this was not going to happen, and it’s pretty incredible to look at those constituent assembly debates, there was an immediate reversion to the fact that India must be a strong central union government with powers; some powers devolved to the states and a federation with residuary powers that will continue to remain with the centre. There will be no village level units or local municipal units at all, as Mahatma Gandhi had been asking for for the last 20 years.Karan Thapar: But there was another reason why people also decided after the failure of the Cabinet Mission plan that they needed a strong centre, that Jinnah actually agreed to the Cabinet Mission plan. The reason he did is because he realised this effectively, if not in name, gave him a Pakistan both in the East and the West. The federal or confederate nature of that plan would have given him the autonomy he wanted. That was another reason you have to have a strong centre, and that’s otherwise this sort of confederacy will break up our country.Arghya Sengupta: Absolutely. Let me be upfront. The Cabinet Mission plan was completely unworkable. That is why what happened was that the idea of a weak centre and stronger states became conflated with an unworkable idea of a Cabinet Mission plan.Karan Thapar: But are you not noticing the paradox in what you’re saying? The Cabinet Mission plan was colonial. Had we accepted the confederal nature that it imposed on the country, then you could say we went for a colonial architecture. What we opted for was the opposite of the Cabinet Mission plan. Therefore you can’t call it colonial. That was India’s own decision that we need a strong centre. It’s the colonial thing that would have been the Cabinet Mission plan.Arghya Sengupta: Well certainly both are colonial, this is what I would say.Karan Thapar: But look at this. Let me point out a second problem, and I’m using your phrase with your claim, that a government that ‘towers over the citizens is colonial’. After the Meiji Restoration in Japan, you had a government that towered over the citizens. In fact, the Emperor was considered God, yet Japan has had no colonial experience in its history. Indeed, it’s been a colonising country as far as Korea and parts of China are concerned. So this belief that a government that towers over its citizens is colonial, is not true. The Japanese model is not colonial, and it towers over them.Arghya Sengupta: There are many models which as you rightly point out where the state can tower over the citizens, and every monarchy towers over their citizens, there’s no doubt about that. But the sense in which I use the word colonial is a continuation of what we had under the British.Karan Thapar: Only in terms of outline structure, but in terms of the rights that were infused in, which makes such a huge difference, we were not colonial. Just the fact that they borrowed the structure of the 1935 Act doesn’t really mean you end up with a colonial document, because the contents of that document are not colonial at all.Arghya Sengupta: Well, I would dispute the fact that they’re not colonial at all. On its own, simply borrowing the structure is not colonial, I’ll grant that. But when you look at the contents, and let’s look at the contents. Let’s look at a specific example: let’s look at the right to life and personal liberty. It was quite possible for the framers of the constitution to write that everyone shall have a right to life and personal liberty, full stop. It could have been done, but it was not done. Instead, what was done is that that can be restricted by procedure established by law. Even the more expansive due process of law, which would prevent the state from taking actions to restrict the life and personal liberty of citizens was not done. Now why was this done, which comes back to the unrest that was happening at that time. At that time, on the 9th of December when the constituent assembly met for the first time, Mahatma Gandhi was in Noakhali, because there were communal rights in Noakhali. So it was in their minds that they needed to do something about the law and order situation. What is it that they do? They authorise preventive detention in the constitution. Now I find this actually quite incredible, because of the fact that we’ve all heard of the Rowlatt Act.Mohandas Karamchand Gandhi in Noakhali, 1946. Photo: Wikimedia Commons.Karan Thapar: Let me put it like this – there’s no doubt that there is preventive detention which is part of our constitution, there’s no doubt that there are restrictions on freedom of speech that were expanded with the First Amendment. There are many other such, as I would call them imperfections in our constitution, but to conclude from those imperfections that the document is colonial is a huge stretch. That’s what I’m questioning. You’re right, there are several things over the years that judges have watered down with Supreme Court judgments thereafter, and expanded the right to life and interpreted it in multiple imaginative ways. But to conclude from the facts that there were imperfections in the original document, therefore it’s colonial is not just a huge stretch, it seems to me it’s the wrong application of the word colonial.Arghya Sengupta: Well it reminds me of the famous saying, that everything you say in India, the opposite is also true. I think it’s the case for the constitution as well. There could equally be a book called The Anti-Colonial Constitution and that would be true as well.Karan Thapar: You’re reaching a point where you’re half agreeing with me, and I’ve reached a point where I’m half agreeing with you. I think this is a fascinating discussion but let’s then move to three things that you say about the constitution. One of them is this – you point out that there were other documents, for example the Hindu Mahasabha was crafting a constitution of its own at roughly the same time, presumably in competition or rivalry with the one that the drafting committee was setting up. But what’s interesting, it’s either a paradox or an irony that the Hindu Mahasabha document was as colonial as the one that we ended up with. This is what you write, “The substance of the constitution of the Hindustan free state was as colonially inspired as the eventual constitution”. How do you explain that, that this document from the Hindu Mahasabha et all being colonial?Arghya Sengupta: I think the interesting part here is that this seems like a paradox in today’s day and age, because we seem to be at a decolonial moment with the Bharatiya Janata Party (BJP) in power. But at that point of time and in the 1940s, the established wisdom particularly amongst those who are erudite lawyers who end up drafting most constitutions, irrespective of which parties drafting them, is that the cutting edge of constitutional law is the Anglo-American liberal model. The Hindu Mahasabha is no exception, because at the end of the day Savarkar is a complex person as in many senses he also wants India to be a modern state. Savarkar himself is an atheist. He does not want Hinduism to become the state religion, so he doesn’t want a constitution that is pre-modern. Who has suggested the constitution? It is Gandhi, who is his most bitter rival. So, in some sense, the Hindu Mahasabha suggests a constitution that is mainstream centrist and reasonable, because it wants to be seen as a mainstream centrist and reasonable party.Karan Thapar: What this also suggests is that whether you were part of the Congress or the Hindu Mahasabha, or for that matter even the Muslim League, their inspiration for the constitution was in fact the values from the French Revolution onwards that had been handed down and accepted as the core principles of democracy, added to by the Americans and that wonderful echoing phrase which we borrowed from them, “We the people”. In other words, that western influence, it may not be colonial, but that western influence ran through our country.Group photo of Hindu Mahasabha. Standing – Shankar Kistaiya, Gopal Godse, Madanlal Pahwa, Digambar Badge. Seated – Narayan Apte, Vinayak D. Savarkar, Nathuram Godse, Vishnu Karkare. Credit: FlickrArghya Sengupta: That’s right, and Ambedkar has a very beautiful quote, because he says that “We have come 200 years late to this party. Whatever had to happen has happened, and so there should be no shame in copying”.Karan Thapar: Absolutely. Let’s come to some specific points you make in your book about the constitution. You say, “The Rajya Sabha remained in the constitution of India because it was tried and tested in other countries as a means of preventing democracy getting out of hand”. But look at the way the Modi government introduced electoral bonds through a finance act. Immediately you realize that you do need an institution like the Rajya Sabha to curb the tendency of powerful prime ministers like Modi misusing the numbers they have in the Lok Sabha. That’s really why you need a Rajya Sabha, which may not have been apparent when the constitution was written because no one would have believed we’d have a prime minister who would steamroll electoral bonds the wrong way. But now that it’s been done you suddenly realise you do need a Rajya Sabha, because otherwise a man like Modi, and I’m only using him as an example, can misuse his numbers in the Lok Sabha to do things that actually should not happen, in a way they shouldn’t happen.Arghya Sengupta: The Rajya Sabha didn’t stop the electoral bonds, Karan and neither did it stop the 42nd Amendment.Karan Thapar: Because they went through a finance act.Arghya Sengupta: They didn’t stop the 42nd Amendment during Indira Gandhi’s time. I think the Rajya Sabha is only in theory a check on elected government. I think in concept it seems nice, it makes us feel good about ourselves but it actually doesn’t work. So if we really want to look at curbing an elected government –Karan Thapar: No. The Rajya Sabha, often when the government of the day doesn’t have a majority, there is a check on the sort of legislation the government can bring. We know that from Modi’s experience in the last eight years – he’s often had to be careful about what he does. His attempt to pass the first labor reforms in the first year, they were checked because he couldn’t get the land acquisition through the Rajya Sabha.Arghya Sengupta: That’s right. I think that yes, there obviously can be cases where there is a check and balance, but I actually dispute this premise. My view is that as a nation, we are only as good as the people we elect. If the people we elect are people whom we think are unfit, then we have the power of the ballot to vote them out.Prime Minister Narendra Modi speaks in the Rajya Sabha. Photo: RSTV grab via PTIKaran Thapar: Not that they are unfit, although that may follow; but that if you give people such huge power, they will have a tendency to abuse it. All power corrupts, absolute power corrupts. When a man or a prime minister has a number in the Lok Sabha where he can do whatever he wants, that’s when the Rajya Sabha, if he doesn’t have a majority becomes an effective check. It’s not a way of throttling democracy – it then becomes a way of ensuring there’s no abusive democracy.Arghya Sengupta: Yeah, and I think that was very much the thinking as with the constituent assembly. As I said and I may sound like a broken record here, the fact is that I think that if a prime minister has been voted in by such a landslide majority, and if we don’t like what they are doing, then we can vote the prime minister out. I think these checks in terms of the Rajya Sabha or you know legal checks in terms of High Court striking it down can be edge cases, they are marginal cases, but I think ultimately we shouldn’t feel comfortable that there is some other institution that’s doing the job for us. It’s not.Karan Thapar: All right, that’s a disputable point but let’s come to the second one. I’ll give you another example: you say, “Only a constitution that does not trust its legislators has to lay down an excruciating detail of what rules of procedure they must adopt”. Once again, look at the record of the Modi government. I’ll point out again that I’m only using it as an example. They’ve run rough shots over procedures right through nine years, which is why when the constitution lays down in what you call “excruciating detail”, how they must be followed. The constitution is hoping to tell people as powerful as Modi, “Look, there are ways of doing things, the means are as important as the end, the right means are necessary”. It’s only if you lay it down in that way, that a man with the power of Modi is hopefully encouraged to fulfil the procedure. Even then he violates it, but at least the constitution making an effort to tell procedure is important.Arghya Sengupta: I just feel that this cannot happen by dictation. This is something that is a culture of compliance with law, which cannot happen because the constitution is saying in some painful detail as to how a bill is to be introduced.Karan Thapar: But then the corollary to what you’re saying is that the culture of compliance with law doesn’t exist in the Modi government.Arghya Sengupta: I think this is a much larger case, because I think that we shouldn’t fall into the trap of seeing this through Modi tinted glasses. I think that there is a problem with the culture of compliance of law, written law in the way in which we think of law in the country generally. I know this is a large game.Karan Thapar: But then you’re giving a second good reason as to why the constitution spelled it out in excruciating detail. The framers must have been aware of what you’re talking about, that the culture of compliance with law doesn’t exist in India, therefore we must spread in detail the procedures that must be followed. Otherwise, because that culture of compliance doesn’t exist, people will deliberately short circuit, people will deliberately take shortcuts.Arghya Sengupta: I think, and this may sound very counterintuitive, but the fact that there is no culture of compliance means that you cannot impose a culture of compliance by writing densely.Karan Thapar: You can certainly try.Arghya Sengupta: I mean that’s what they did, that was very much the effort. This is sort of maybe much more Gandhian in this way, but I would say that we have to wait for our time. This culture of compliance will grow, the sense of responsibility will grow.Karan Thapar: But then what’s the point of the constitution?Arghya Sengupta: The constitution serves as a framework, but as to how a bill will be introduced, some conventions will develop, so let conventions develop. What happens when you don’t have conventions developed, is that you spell out everything in detail and then nothing is left for convention.Karan Thapar: There is a view, that in fact one of the things the constitution did was actually to create a democracy, and to create the spirit and culture of democracy that didn’t exist earlier. That’s another reason why things have to be spelled out, because the constitution was actually creating the Indian people in the mold. It wanted them to follow, rather than the opposite.Arghya Sengupta: I dispute this view, while I agree with parts of this thesis. But the general thesis, and Madhav Khosla has written a book called The Founding Moment which you know –Karan Thapar: That’s exactly what I’m talking about.Arghya Sengupta: That’s the thesis. I think it is something that I would like to dispute, that the constitution created the Indian people. The constitution created the Indian people only in a legal sense.Karan Thapar: I think what he meant is the constitution created the Indian people in a democratic sense. The cultural compliance that you say didn’t exist, the constitution sought to try and create.Arghya Sengupta: No. I think that the culture of democracy in India starts with our freedom movement, and not the constitution. It starts with protesting against colonial rule and not the constitution. This is what I find quite interesting, and I write it in my book as well, that the culmination of the freedom movement and the Constitution are happening contemporaneously, but it seems like they’re happening in two different worlds. The freedom movement is all about non-violence and satyagraha; the words ‘non-violence’ and ‘satyagraha’ don’t find any mention in the constitution.Karan Thapar: I think in your introduction or prologue you explicitly say the word ‘non-violence’ doesn’t exist in the constitution at all, and yet that was the central mantra of the freedom movement. Why does the absence of the word ‘non-violence’ make the constitution colonial, and how would that world have fitted in?Arghya Sengupta: You’re right, it’s not really the absence of the word because that would be a very simplistic claim to make, but it’s almost as if the spirit of the freedom movement had evaporated by the time the framers of the constitution came into the constituent assembly. Shankarrao Deo-Karan Thapar: The spirit of the freedom movement wasn’t simply encapsulated with the word ‘non-violence’. The spirit of the freedom movement was also to create a modern, free, independent state that would allow Indian people to fulfill their potential that would give them the freedoms and the rights they didn’t have, that would give them a democratic structure which they didn’t have. All of that was fulfilled in the constitution.Arghya Sengupta: In the broader sense, the constitution had one thing going for it – which was exactly echoing what the freedom movement did, the spirit of tolerance and consensus. Yes, it was a constitution that came about through great consensus, which is what the freedom movement was aspiring to do. But, the text of the constitution did not echo that vision.Karan Thapar: Let me raise one third point that you make, and I’ll be honest with you, I find this particularly bizarre. Right at the end of your book, you argue that the treatment of daily wage workers during the lockdown when they were having to walk hundreds if not thousands of miles back to their villages, is somehow proof that the constitution is colonial. You write, “The indignity of being made to squat in public and then forcibly made to bathe in disinfectant, captured in one image the reality of the colonial constitution. It had shown its true colours in Bareilly in 2020”. That’s simply not true. What happened in barely in 2020, was a breach of the constitution – it was disregard of the constitution, it was defiance of the constitution by a high-handed Yogi Adityanath government with a brute majority in the assembly. It wasn’t a result of the constitution, it was undermining the constitution.Arghya Sengupta: I think that’s a simplistic reading Karan, because my sense is that the state towered above the citizens. The reason I picked that example is because it was very graphic, and we’ve all seen that. When there are 50 labourers sitting on their haunches and then there’s an officer who’s spraying them with chemical disinfectant, I felt ashamed as an Indian on that day when I saw that photo. The reason as to why we are in this situation, and I say this with great humility, is that the constitution didn’t do enough, which is why our governments can behave like this.The infamous incident from March 30, 2020, when healthcare workers, in protective suits, used a hosepipe to spray disinfectant on migrant workers before allowing them to enter the town of Bareilly. Photo: PTIKaran Thapar: Had this matter been taken to court, it would have been struck down immediately and the judges would have condemned the government for doing it.Arghya Sengupta: On what ground?Karan Thapar: On the grounds that you are treating people as if they are slaves and animals, breaching their rights of freedom, equality and liberty. All of those would have stood up in court.Arghya Sengupta: Yes but this matter was taken to court. The last I know, there has been no judgment on this issue.Karan Thapar: Let me tell you something. That is not a reflection of the constitution, that is the reflection of the judges interpreting the constitution and the alacrity and diligence with which they do the work. I mean, you can have a great constitution which is not colonial, but judges who failed to act, who deliberately kicked the ball down the road, who come up with perverse judgments, that’s not a reflection of the constitution – that’s a reflection on them.Arghya Sengupta: Absolutely. I don’t want to give any judge who is not doing their duty or a government which has behaved in this manner, a free pass. Of course they are to blame and there’s no doubt about that. But I think in India we’ve got this very convenient expression, that ‘We have enough laws which are good, but they are not implemented’. I think it’s time to think about the laws as well – why is it that we are in a situation where governments and judges can do this and get away with it?Karan Thapar: Which law would have permitted governments to bathe people having made them squat on the road with disinfectant?Arghya Sengupta: I think that this is exactly the kind of large moral question which a constitution is meant to understand.Karan Thapar: No constitutional framework, whether in 2023 or 1949 would have asked themselves the question ‘How do I cater for a situation where a man like Yogi Adityanath will make people squat on the road and bathe them with disinfectant?’ That’s not something constitution makers didn’t think about.Arghya Sengupta: They wouldn’t be able to think of the example, but they can certainly think about the right to life with dignity being completely untrammelled. I think this is something that that can be thought about by a constitutional framer, and I remember what Chief Justice John…Karan Thapar: You’re saying the absence of the right to life completely untrammelled means the constitution becomes colonial? That’s a huge jump.Arghya Sengupta: That’s a bit reductionist. I wouldn’t say that, but the constitution gives the state huge powers, and every government knows that and that is what they use. If I could give you one statistic, because I found this quite incredible, some of my colleagues at Vidhi Center have come up with this – in 2021, 58 lakh people were arrested in India. These are people who are arrested by following the procedures of the IPC. The number of people who have been detained, that is without a legal process, is 86.6 lakhs. There are 87 lakh people who have been detained, which is essentially a policeman going, picking somebody up and putting them in lock up for a day or two, because they don’t want them to breach law and order or because they just don’t like the look of their face. Now, this is the country that we live in. It will not happen, in all likelihood, to people sitting in Lutyens Delhi, it will not happen to people sitting in South Bombay, but it is going to happen to people who aren’t that fortunate – and that is the state we are in today.Karan Thapar: But to jump from that, and it’s a despicable situation you describe. By no means would I justify what’s happening. But to jump from that to the conclusion that the constitution is colonial is like saying that what happened in America in the 50s against communists, which was illegal and wrong, means that the American constitution is colonial.Arghya Sengupta:No, I think that we have to look at who is responsible, and responsibility goes all the way. While certainly for something of this nature, the responsibility starts with the police officer who is not doing their duty, and goes right up to a framer of the constitution who is unable to think of what India would be like 100 years later. Because as I was saying, since you gave the American example, Chief Justice John Marshall of the United States had a very good quote, which is that “When we are interpreting the constitution, we must always remember it is the constitution we are expounding”. It is something that is for all times to come, and not an immediate expedient for today.Karan Thapar: Let me put it like this: your argument reminds me of the following, which I don’t think most people agree with – Trump’s failure to prevent what happened on January the 6th 2021 doesn’t mean that the constitution of America endorsed it and permitted it to happen. Similarly, the failure of a judge to act, the failure of a police officer to go down to the bottom, or the prime minister to go to the top to act, doesn’t mean the constitution is to blame. Those individuals are to blame. Just as Trump is to blame and not the American constitution, Modi or the policemen or judges are to blame, not the constitution.Arghya Sengupta: I mean blame is a strong word but as I said…Karan Thapar: Responsible, then.Arghya Sengupta: As I say, that it is a time for some introspection. We can’t simply say and I think it makes us feel comfortable to say that “Oh that policeman is not doing their duty”. Yes, that policeman isn’t doing their duty, but I think we have to ask that question – why is he or she not doing her duty? I think that goes up all the way, as in right through all chief ministers and prime ministers, right up the way all the way to what is the governing mechanism in India. I think it’s certainly food for thought to see as to can the constitution do something about this?Karan Thapar: Didn’t Ambedkar have something to say about this? No matter how bad a constitution, if good people implement it, it will be good. He said the opposite – no matter how good a constitution, if bad people implement it, it will be bad. We have a situation in India where progressively bad to worse people are implementing it at all levels, which is why people begin to raise questions about the constitution. Which is why your conclusion is colonial, and I’m saying to you it’s not colonial, but yes bad people going to worse are implementing it.Arghya Sengupta: That’s right. I think, because you gave the American example, the American constitution is based on the idea that people will be bad. I think every constitutional framework, unless they are overly optimistic, will know that the people who implement the constitution will do it for their own selfish devices.Karan Thapar: You’re saying the framers of the Indian constitution didn’t realise how terrible the Indian people would turn out to be?Arghya Sengupta: No, and I think that this is something I must say with all humility, that this is what was expected. The only person who knew that this would happen but cast it positively, was Gandhi – because Gandhi said that what we actually need is not so much a legal text. He said, ‘A son cannot follow their father as a matter of policy, or a matter of law’. What it needs is moral regeneration. I think that he was onto something, that what we need is essentially ensuring greater civic sense.M.K. Gandhi. Photo: Dutch National ArchivesKaran Thapar: For the sake of the audience I’ll point out something. You’re arguing now that the Indian constitution framers didn’t realize just how, to use my words, terrible Indian people would turn out to be. But there is one thing you agreed on earlier, that they were aware that the culture of compliance with the law doesn’t exist, which is one explanation for why they laid down procedures in such excruciating detail. So they were aware to some extent, of the imperfections if I can call it, of the Indian people, but not that they could turn out to be in some ways terrible and horrible?Arghya Sengupta: Absolutely. I think that people are self-seeking, and I think we should put it that way. We should be very clear that people have self-seeking interests, and people have multiple contradictions that go on. But I think with the framers, firstly I think they underestimated particularly politicians down the line, starting from Nehru right up to the current Prime Minister Modi, that politicians will look at political compulsions. It’s not as if the constitution will be like a holy book that they will follow as a matter of gospel truth, number one. Number two is that if you are faced with such imperfection, what direction do you go in? They chose to go in the direction of checks and balances and the United States Constitution, which was accepted at the time. Gandhi chose the direction of trying to make the people be the best version of themselves. There’s something there.Karan Thapar: This is very interesting. Now our conversation has drifted very far from where it began. We began by disputing or arguing over whether the term ‘colonial’ is the right description for our constitution. Now what you’re saying, and these imperfections and lapses are not to do with the fact the constitution is colonial, they are to do with the fact that the constitutional framers did not understand how horrible, and I’m using that word deliberately, or imperfect or how how disappointing the Indian people could turn out to be. These problems that we’re discussing are not to do with the colonial inspiration of the constitution, they have to do with the fact that our framers didn’t realise that the Indian people are not necessarily going to be observers of law – they won’t follow procedure, they will look for shortcuts, that is what they didn’t cater to.Arghya Sengupta: At the time, it was a time of newfound optimism, it was 1947.Karan Thapar: They overvalued the goodness of the Indian people, without realising that we’re as bad as anyone else.Arghya Sengupta: I think that I would put it a little bit differently. I think they were more optimistic, and there was a touching optimism about the Indian people. I think the Indian people can be good in parts, and can be bad in parts.Karan Thapar: Like a curate’s egg.Arghya Sengupta: We needed to account for the whole.Karan Thapar: But now we’ve moved a long, long way away from the argument over whether this is as a result of the constitution being colonial.Arghya Sengupta: No, but the constitution was framed with the idea that the people would be a certain way.Karan Thapar: But that’s not a colonial thing.Arghya Sengupta: I mean that’s because of the starting point that they had.Karan Thapar: That’s a dewy-eyed view of the Indian people, needlessly good and kind and generous to them, whereas they shouldn’t have been. But let me end with what I think is very interesting, and this is literally my last question. Despite your criticism of the constitution, you are not calling for a new constitution. You write, “This is not a call to draft a new constitution today. We live in polarised times, and any constitution that emerges after such a time is unlikely to be long lasting”. So you would fundamentally disagree with the Chairman of the Prime Minister’s Economic Advisory Council, Bibek Debroy, who recently wrote an article in Mint calling for a new constitution.Arghya Sengupta: If the question is one of timing, I don’t think this is a time to write a new constitution. It’s not at all, because if we have some ideas that we think will serve India better then we need consensus on those ideas.Karan Thapar: And that’s missing?Arghya Sengupta: Consensus is completely missing from the political spectrum today, and that’s number one. But that doesn’t mean that we have these banal homilies towards the constitution, that it’s working beautifully for us, it’s only the people that’s the problem. I think that India does need, as I’ve said in the book, to discuss new constitutional ideas. There are simplistic ways in which one needs to discuss it. There is a export duty waiver for West Bengal, Bihar and Orissa for export of jute; those things need to go. There are some parts of the constitution that simply are not needed, and there are other parts of the constitution like preventive detention, like the heavy centralisation which I think with the wisdom of 75 years needs to be rethought.Karan Thapar: It sounds to me like what you’re saying is that there are things in the constitution that need to be corrected, others that need to be improved, and some that need to be amended. That is different from saying we need a new constitution.Arghya Sengupta: The question of a new constitution is always a political one, it’s not really a question that is a legal question. Now whether it is a new constitution, whether it is a constitutional amendment, what form it takes I don’t know. But I do think that we need to discuss new constitutional ideas. Do we want a new constitution overnight? Absolutely not.Karan Thapar: We always need to discuss new constitutional ideas. We always need to discuss ways in which we expand the freedoms and rights that we have, and we always need to discuss how we ensure that those who are charged with defending them and implementing them become better at it, and don’t actually abuse them at the cost of the rights of the citizens. I agree with you then.Arghya Sengupta: Exactly.Karan Thapar: Thank you very much indeed.Arghya Sengupta: Thank you, Karan.