Postcolonial Paradox: Did British Legal Order Truly Leave India?

Authored by Aditya Mudhana, a first-year regulation scholar pursuing B.B.A., LL.B. (Hons.) at Jindal World Regulation College

These phrases, spoken by Jawaharlal Nehru on the eve of independence, have come to symbolise India’s historic break from colonial rule. Nonetheless, behind the great thing about this poetry lies a posh authorized and political challenge. It was argued by Rohit De that between 1947 and 1950, India was a British Dominion. India was removed from dismantling the colonial state, working below colonial-era legal guidelines, establishments and colonial constructions. What’s hanging, nevertheless, is how the Indian Nationwide Congress- as soon as the foremost opponent of colonial repression – adopted and employed these very devices of management. Congress governments throughout the Dominion interval used preventive detention legal guidelines, press censorship, and emergency powers inherited from the British to repress dissent, crush insurgencies, and combine princely states. Civil liberties that had been the muse of its opposition below colonial rule have been now suspended or utilized selectively. As Rohit De demonstrates, the Congress-led state invoked the authority of the Crown and continued to behave by the workplace of the Governor-Normal, imposing legal guidelines that had as soon as been denounced as undemocratic and oppressive. This strategic reappropriation of colonial energy reveals a elementary rigidity on the coronary heart of India’s transition: the authorized structure of the Empire was not dismantled—it was redirected. This paper argues that whereas India attained political independence in 1947, it did so by inheriting and operationalizing the very authorized and institutional equipment of colonial rule — a equipment that not solely formed the Dominion interval however continued to tell state practices nicely into the post-republic period, reflecting on the query of whether or not the British authorized order ever really left us.

In March 1947, the interim authorities, headed by Congress, arrange the Press Legal guidelines Enquiry Committee (PLEC) to evaluation colonial press legal guidelines and align Indian media regulation with that of superior democracies. Public curiosity within the committee was minimal, maybe motivated by the hopeful anticipation that press controls would naturally atrophy post-independence. Such optimism was misplaced. Whereas the PLEC proposed the abolition of discriminatory legal guidelines particular to the press, it additionally really useful the retention of colonial provisions just like the Official Secrets and techniques Act and Sections 124A, 153A, and 505 of the IPC—authorized instruments earlier used to suppress dissent. In observe, the Congress authorities signalled that it supposed to stick with colonial practices of press administration, repackaged within the framework of sovereign governance. Most significantly, the PLEC really useful narrowing the definition of sedition below Part 124A, recognising its colonial misuse in opposition to the press. But, the Congress authorities rejected this on the grounds that the hazards of misuse of sedition legal guidelines have negligible results on elementary rights. This resolution, alongside the Constituent Meeting’s refusal to explicitly assure press freedom, cemented a authorized continuity between colonial and postcolonial regimes. Slightly than abolishing the establishments that had as soon as suppressed nationalist opposition, the Congress authorities opted to retain and legitimise them within the new democratic order, prioritising state management over liberty. Even Nehru, within the context of 1948, agreed to this contradiction, writing to the Chief Minister (CM) of Bihar, “we are actually doing precisely what we’ve got bitterly opposed up to now.” His comment acknowledged the awkward undeniable fact that the postcolonial Indian state was replicating exactly the repressive tendencies it had opposed below colonial rule.

Lastly, the usage of govt ordinance powers to bypass legislative scrutiny and impose unilateral rule. Beneath the Authorities of India Act, 1935, Sections 42 and 43 empowered the Governor-Normal to challenge ordinances on the central stage, whereas Part 88 granted the identical authority to provincial governors. 

These ordinances, first launched in 1861, have been ferociously opposed by Congress leaders for a lot of these 90 years till the Structure got here into impact on January 26, 1950, the place three ordinances have been promulgated that very day, reflecting how rapidly these powers have been normalised. Nehru’s frequent recourse to ordinances—even regardless of parliamentary majorities—betrays a deep continuity with colonial govt energy, a precedent that might be expanded upon by his successors, most notably Indira Gandhi. This continuity was legitimised within the form of Article 123 of the Structure, which empowered the President to challenge ordinances when Parliament was not in session. Although framed as an emergency provision, Article 123 lacked robust safeguards and successfully replicated the discretionary authority of the colonial-era Governor-Normal below the Authorities of India Act, 1935. The imprecise requirement of “fast motion” gave the chief vital latitude to bypass legislative debate. Removed from being a brief compromise, ordinance-making grew to become a recurring function of Indian democracy, with a complete of 679 ordinances being issued from 1950-2014.

Whereas the Congress authorities’s reliance on colonial instruments could also be justified throughout the dominion interval by the distinctive challenges of Partition, and different substantial difficulties, their continued use nicely into the fashionable Republic period displays a deliberate and strategic embrace of those instruments moderately than a brief repair for a fragmented public. The Preventive Detention Act, 1950, enacted instantly after the Structure got here into drive, prolonged the colonial logic of suspicion-based imprisonment into the democratic framework. Its misuse was outlined within the A. Ok. Gopalan case, the place the Supreme Courtroom upheld indefinite detention regardless of constitutional ensures of private liberty. Equally, regardless of the promise of free expression, the Press (Objectionable Issues) Act, 1951 paralleled related seizure of presses and forfeiture of securities – a continuation of press management mechanisms as soon as utilized by the British. Moreover, the sedition regulation below Part 124A, which was not too long ago amended into Part 152 of the Bharatiya Nyaya Sanhita, 2023 was continues to criminalise dissent within the language of nationwide safety, reflecting a shift in rhetoric moderately than in repressive intent. Lastly, ordinance-making powers grew to become routine-far exceeding emergency wants, as beforehand talked about, over 670 ordinances had been issued until 2014 alone, lots of them re-promulgated in violation of constitutional spirit, as condemned in D C Wadhwa v State of Bihar. These information unequivocally reveal that the colonial state’s repressive actions weren’t solely situational in nature, however with the intention to be institutionalised within the Republic, upholding the continuity of coercive governance below the guise of constitutionalism and public order. 

With this continued reliance on authorized frameworks from the colonial period lengthy after independence requires a troublesome query: did the British authorized order ever really go away us? The reply I current is not any, the British authorized order has not really left us, at the very least not in spirit. As talked about above, many components contribute to this reply – from prevention detention to press regulation to govt ordinances, India retained these very instruments that when silenced its freedom motion. Extra importantly, the authorized order doesn’t simply lie in its statutes or its structure however within the mindsets of its residents and lawmakers – the concept that the state have to be protected against its individuals, moderately than the opposite approach round. The inversion of constitutional morality, inherited from the British precept of energy retention throughout the society, the place state energy trumps particular person rights, is the true colonial legacy the British have left us, and inside this framework is how the republic functioned for a very long time.

Seventy-seven years of independence, and India nonetheless operates on a authorized system designed not for democracy, however for colonialism. The Indian Penal Code, 1860, and the Police Act, 1861, stay remarkably unchanged, primarily based on colonial values of order, surveillance, and hierarchy, moderately than justice, dignity, or rights. Political energy has been decolonised, however authorized energy stays shackled by the logic of the colonial state. Reforms have been sporadic and piecemeal: the brand new Bhartiya Nyaya Sanhita, regardless of being a purported overhaul, nonetheless retains a lot of the colonial mindset of language and construction finest put forth by retired SC Decide Justice Chelameswar – “a change in nomenclature with replacements being beauty… not more than window dressing.” This colonial legacy shouldn’t be solely confined to amending or renaming outdated legal guidelines but additionally extends to the enactment of latest laws that’s arbitrary and strikingly paying homage to colonial rule. The Illegal Actions (Prevention) Act (“UAPA”), initially enacted in 1967 and repeatedly amended to broaden govt energy, additional exemplifies this continuity. Very like the colonial-era Legal Regulation Modification Acts, Part 43A of the UAPA grants the state sweeping powers of detention and criminalisation primarily based on suspicion, reversing the presumption of innocence and undermining due course of. Equally, the Armed Forces (Particular Powers) Act (“AFSPA”) below Part 4(c) permits the army to function with near-total impunity in designated “disturbed areas”, echoing the colonial state’s assumption that sure areas have to be managed by extraordinary drive. Regardless of knowledgeable commissions just like the Justice B P Jeevan Reddy Committee and protests calling for its repeal, AFSPA stays in drive, revealing how deeply embedded colonial hierarchies of suspicion and coercion nonetheless are within the legislative minds. 

Most wanted shouldn’t be beauty reform however a shift of constitutional pondering—firmly establishing the primacy of the citizen, taking authorized discourse out of the clutches of imperialism, and creating establishments on the premise of accessibility, transparency, and accountability. The judiciary, too, should tackle the position of a transformative drive, not a custodian of authorized custom. Constitutional morality should substitute colonial legality because the guiding norm of interpretation and utility. The British authorized order shouldn’t be solely a relic—it’s a shadow we nonetheless decide to stay below. Its elimination would require greater than repeal; it’ll require political creativeness, institutional braveness, and a reassertion of our collective democratic aspirations. Solely then can we declare we’re not solely politically impartial, but additionally legally free.