Beyond Borrowing: Constitutional Decolonisation and the Remaking of India’s Post-Colonial Republic
Tanupriya Jain
Research Associate
Centre for Law and Legislative Research
Abstract
The Indian Constitution is often described through the lens of Constitutional borrowing that draws inspiration from Western constitutional models such as the British parliamentary system, American fundamental rights, and the Irish Directive Principles of State Policy. While this characterisation is not inaccurate, it is still incomplete and this overlooks the Constitution’s more radical foundation: its conscious departure from the colonial legal and political legacy to transform imperial subjects into citizens of a democratic republic.
The Indian Constitution is deeply rooted in the indigenous constitutional imagination. It enshrines Gandhian principles, it reflects the moral legacy of the freedom struggle and it symbolically honours the martyrdom of India’s freedom fighters. Our constitution is a living document, committed to decolonisation. This commitment is visible in key constitutional choices such as including the rejection of parliamentary sovereignty in favour of constitutional supremacy, the adoption of a mixed economy, and more recently the replacement of the Indian Penal Code with the Bharatiya Nyaya Sanhita.
Thus, this paper argues that the Constitution of India must be understood as an anti-colonial project on an ongoing process of decolonisation. Rather than viewing it merely as a borrowed constitution from west, the Constitution should be read as a dynamic framework striving to realise distinct Indian constitutional ideals through rejection, revision, and renewal of colonial structures.
Keywords: Indian Constitution, Anti-colonial, decolonisation, Indian Penal Code, Bhartiya Nyay Sanhita
Introduction
The narrative of inheritance surrounding the Indian Constitution has attracted many attention from lawyers, scholars, and political scientists. There are substansive research available that emphasises the Constitution’s borrowed elements such as the parliamentary government from Britain, fundamental rights from the United States, Directive Principles of State Policy from Ireland and federal features from Canada and Australia. Though this narrative is not entirely inaccurate, it risks reducing the world’s lengthiest written Constitution to a mere act of legal imitation and such an account misses a crucial dimension of constitution-making in post-colonial India: the deliberate act of rejection.
As Ivor Jennings famously observed, “The framers of the Indian Constitution were not mere copyists.”[1] The framers were not simply assembling a functional apparatus of the state, they were simultaneously dismantling a colonial legal and political order designed to govern subjects rather than citizens. The Constitution thus emerged as a conscious response to colonial domination, legal authoritarianism, and racially structured governance and sought to replace these with constitutional supremacy, decentralisation, and moral commitments to equality, dignity, and fraternity.
Hence, this paper aims to reflect upon the break from colonial legal legacy that began with the adoption of the Constitution in 1950 and is still in process. While political and constitutional structures underwent significant transformation, colonial criminal law remained largely untouched for decades. Thus, understanding this divergence is essential to grasping both the ambitions and the limitations of India’s post-colonial constitutional project.
Constitutional Decolonisation: Conceptual Framework
Constitutional decolonisation is not only the replacement of colonial rulers with indigenous leaders but also the restructuring of legal and political frameworks inherited from colonialism.
In colonial India law functioned as an instrument of control that was centralised, coercive and suspicious of popular participation and prioritised order over liberty and discipline over dignity.
So, it was important for lawmakers to reverse this, so they replaced parliamentary sovereignty with constitutional supremacy, subordinated state power to fundamental rights and added judicial review as a safeguard against authoritarianism. These were not just regular institutional choices but the deliberate rejections of colonial governance.
However, constitutional decolonisation is constrained by historical realities too, like Partition, mass displacement, economic fragility and administrative continuity that compelled framers to retain large parts of the colonial legal system. Hence, the constitution was radical in aspirations but cautious in execution. Thus, the tension between transformative constitutional ideals and inherited legal structures forms the central paradox of India's post-colonial republic.
The Constitution as an Anti-Colonial Project
A.One of the most significant breaks with colonial constitutionalism was the rejection of parliamentary sovereignty. Under British rule, legislative supremacy led the colonial state to enact repressive laws without judicial supervision. Thus, the Indian Constitution decisively rejected this model by establishing constitutional supremacy and empowering courts to invalidate unconstitutional legislation.
Judicial review was thus not just an imported technical feature but a moral safeguard against the return of arbitrary power. It reflected a deep distrust of unchecked authority, an understandable posture for a society emerging from colonial domination
B.Colonial laws treated Indians as subjects to be governed and not as citizens with rights. The Constitution sought to reverse this, and so the fundamental rights were framed not as privileges granted by the state but as enforceable claims against it. The language of dignity, equality, and liberty marked a decisive shift from imperial paternalism to republican citizenship
Fraternity, in particular emerged as a unique post-colonial constitutional value as It acknowledged the social fragmentation produced by colonialism and partition and recognised that legal equality alone could not sustain a democratic republic. The Constitution thus imagined citizenship as both a legal and moral status
The Colonial Persistence of Criminal Law
Despite the Constitution’s transformative aspirations the colonial criminal law remained largely intact even after independence. The Indian Penal Code which was drafted in the mid-nineteenth century continued to regulate crime and punishment in the post-colonial republic without any reforms.
However, this persistence was intended as the Criminal law had been the backbone of colonial governance, enabling surveillance, punishment and control so retaining it ensured administrative continuity and stability during a period of political disturbance. however this continuity came at a constitutional cost.
Colonial criminal law was fundamentally distrustful of the citizen. It prioritised state authority over individual liberty and treated dissent as a threat rather than a democratic expression and provisions related to sedition, public order, and preventive detention exemplified this logic.
The coexistence of a transformative Constitution and a colonial criminal code produced a constitutional clash that courts struggled to reconcile. While judicial interpretation gradually infused constitutional values into criminal law the underlying structure remained colonial in spirit.
Judicial Mediation and Constitutional Morality
In the absence of legislative reform the judiciary emerged as a key site of constitutional decolonisation. Through doctrines such as proportionality, due process, and constitutional morality, courts attempted to align criminal law with constitutional values.
Constitutional morality became a vehicle for addressing the ethical dimensions of law beyond textual interpretation as it allowed courts to question not only the legality but also the legitimacy of state action. This concept reflected a growing recognition that constitutional decolonisation required moral as well as institutional transformation.
However judicial intervention had its limits as Courts could reinterpret and constrain colonial provisions but they could not replace the colonial architecture of criminal law. Legislative reform remained essential for completing the decolonising project.
Bhartiya Nyaya Sanhita: Break or Rebranding?
The replacement of the Indian Penal Code with the Bhartiya Nyaya Sanhita marks a significant moment in India's legal history as it represents a departure from colonial terminology and origin. It also attempts to realign criminal law with constitutional values and current social realities.
However, if the reform is a genuine constitutional break or an intentional shift remains debatable as on one hand this replacement acknowledges the colonial origins of criminal law and asserts legislative autonomy while on the other hand the concerns persist regarding continuity in structure, expansion of state power and dilution of procedural safeguards.
From a constitutional perspective too the significance of the Bharatiya Nyaya Sanhita lies less in its originality and more in its purpose as it reflects clear engagement with the Constitution’s incomplete decolonisation project. It also signals a desire to revisit foundational legal assumptions rather than treating colonial origin as permanent.
Lady Justice in Post-Colonial India
The ongoing process of decolonising is also visible in changes to legal symbolism, mainly the reimagining of Lady Justice. Traditionally drawn from Western legal traditions, Lady Justice symbolised an abstract and inherited idea of justice. The recent depiction of Lady Justice in indian attire, not blindfoldeda nd holding the Constitution of india marks a meaningful shift from colonial symbolism. It represents the independence of the legal system in India that derives authority from the constitution and not imperial traditions. Though symbolism alone don't change the law, they do reflects a broader constitutional effort to reclaim legal identity with indigenous constitutional ideals.
Constitutional Decolonisation as an Ongoing Process
This paper asserts that the constitutional decolonisation in India is not a completed historical event but an ongoing process that unfolds through judicial interpretation, legislative reform and symbolic reimagination as each generation revisits the constitution to negotiate the relation between inherited structures and contemporary values.
Criminal law reforms represent this dynamic as it exposes the tension between continuity and change, stability and transformation. It also reveals that constitutional fidelity requires more than textual approval as it demands critical engagement with the past.
Hence, understanding the constitution as a living decolonising project allows us to move beyond the borrowed versus indigenous law as it acknowledges that constitutional identity is shaped through struggle, adaptation and self-reflection.
Conclusion: Remaking the Republic
The Indian Constitution was born out of a profound moral and political break with colonial rule Yet its decolonising promise was necessarily partial and unfinished. While political structures transformed rapidly, criminal law lagged behind carrying forward colonial assumptions into the post-colonial republic. Recent reforms like Bhartiya Nyaya Sanhita and evolving legal symbolism invite renewed constitutional inquiry into what it means to decolonise law. They remind us that the republic is not merely inherited but continually remade.
Thus, to read the Constitution just as a borrowed document is to underestimate its ambition. It is more of an ongoing negotiation between past injustice and the possibility of the future. Constitutional decolonisation, in this sense, is not about erasing history but about refusing to be governed by it. As Frantz Fanon once said
“The task of liberation is not merely to remove the coloniser, but to dismantle the structures the coloniser leaves behind.”[2]
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[1] Ivor Jennings, Some Characteristics of the Indian Constitution (Oxford University Press, 1953), esp. ch. 1
[2] Frantz Fanon, The Wretched of the Earth (trans Richard Philcox, Grove Press 2004) ch 1.
