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On the face of it, the Indian Constitution was a radical break from colonial rule. It heralded a democratic republic built on the pillars of liberty, equality, and fraternity. Yet, a closer inspection of its institutional design and enumerated powers reveals that it carried over a deeper colonial logic: one that viewed the state as inherently suspicious of its citizens, and citizenship as a conditional grant of status rather than a foundational entitlement.(i)
The retention of preventive detention within the constitutional framework is emblematic of this inheritance.(ii) While the inclusion of fundamental rights was celebrated as a break from the imperial past, the actual text of these rights was riddled with exceptions. As Somnath Lahiri noted in the Constituent Assembly Debates, the rights of citizens were being conceptualised from the perspective of a “police constable”.(iii)
This was not merely a rhetorical flourish. The framers retained, and even constitutionalised, mechanisms of executive dominance that had been used by the colonial state to suppress dissent and curtail liberty. Freedom of speech was limited by the power of the state to suppress it in the interests of decency and morality, freedom to trade could be overridden by an undefined conception of “interests of the general public”, and most critically, the right to life and personal liberty itself could be taken away by the state as long as it followed some minimum procedure. This is what enabled preventive detention to find a continued home in the new Indian republic.
The conceptual foundations of preventive detention can be traced back most conspicuously to the Rowlatt Act of 1919,(iv) which authorised the detention of individuals without trial and permitted searches without warrants. Mahatma Gandhi had denounced it as a “black act”(v) fundamentally incompatible with the aspirations of a free people. Yet, in a moment of paradox, the Constitution not only retained this repressive power but enshrined it in Article 22, even in peacetime.(vi) The Preventive Detention Act of 1950, passed by the Provisional Parliament barely months after the Constitution came into force, enabled authorities to detain individuals on mere suspicion, without trial, for extended periods.(vii) Such provisions — unprecedented even in Britain — became standard tools in the hands of the Indian state.
Ambedkar’s role in this compromise was pivotal.(viii) Confronted with the violence of Partition and the fragility of the nascent Republic, he saw preventive detention as a necessary evil. But even he acknowledged its dangers. While Article 22 introduced certain procedural safeguards (time limits, access to legal counsel, and an advisory board), the foundational premise remained: a person could be deprived of liberty on the basis of anticipated rather than actual wrongdoing.(ix) That this was enabled not through due process, but through the more diluted standard of “procedure established by law” reflected the framers’ willingness to prioritise state security over individual freedom.(x)
This prioritisation was not incidental. It reflected a deep-seated belief that the newly independent state required a strong executive to ensure order, unity, and development. The colonial state had governed India not through consent but through coercion.(xi) The postcolonial state, while operating under a democratic mandate, retained the same coercive architecture. Preventive detention became a ruse, justifying authoritarian measures in the name of national interest. This was not merely theoretical — in 2021, police forces across the country arrested (following proper legal process) 58 lakh people for having committed actual offences.(xii) In the same year, they detained 86.6 lakh people who had committed no actual offence.(xiii) This was the Constitution’s most visible colonial afterlife.
The Drafting Committee was acutely aware of the potential for misuse but chose to entrench these provisions nevertheless. This choice was not merely pragmatic; it was ideological. The committee presumed that a strong state was essential for ensuring national security and social progress, even at the cost of civil liberties. The preference for the phrase “procedure established by law” instead of the “due process of law” ensured that the judiciary would be unable to test such laws for substantive fairness. The rationale for this change was guided by Justice Frankfurter in his discussions with B.N. Rau, wherein he had cautioned that the ‘due process’ clause as laid down in the U.S. Constitution meant that courts had the authority to strike down a range of social welfare legislation.(xiv) As a result of such phrasing, constitutional protections for personal liberty in India became contingent on the benevolence of the legislature and the executive.
The effects of this colonial legacy are still palpable today. The continued reliance on preventive detention laws, national security legislation, and executive ordinances testifies to an enduring anxiety about democratic dissent. In Kashmir, Assam, and across India, citizens continue to be treated as subjects of suspicion rather than rights-bearing individuals.(xv) The Constitution’s emancipatory potential remains unrealised, constrained by the scaffolding of its colonial past.
What this reveals is that the state-citizen relationship in India was never reconstituted on egalitarian terms. The state continued to be imagined as paternalistic, coercive, and unaccountable: an institution to be feared, not trusted. In such a framework, the idea of citizenship becomes hollow. If we are to truly challenge these assumptions in the Constitution, we must confront and dislodge these foundational asymmetries between the state and the citizen.
Demand for personal liberty
To think beyond the coercive legacy of the constitutional order, we need alternative starting points than what is afforded by traditional constitutionalism. Two are readily available. Indian philosophical thought, which exhibits episodic snatches of egalitarianism that challenge hierarchical social arrangements, can be used to envision a less subjugated, more dignified relationship between the citizen and the state. Equally, the lived realities of historically marginalised groups — queer persons in the example we have taken — show that the claim to equal moral citizenship and a stronger demand for personal liberty arises not merely from legal doctrines, but from experiential narratives of survival, resistance, and kinship.
Equality in Indian thought
Indian philosophical traditions, while diverse and internally contested, offer episodic insights into radically egalitarian forms of human association. In the Upanishadic teaching of ‘Tat tvam asi (Thou art that)’, we find the suggestion of an ontological unity among all beings — a metaphysical premise that renders hierarchical distinctions illusory.(xvi) Advaita Vedānta builds on this insight, positing that all souls are fundamentally one with the universe, thus implying spiritual equality as the foundational truth of existence.(xvii)
These insights, however, were often belied by practice. The Dharmashastras, particularly the Manusmriti, codified rigid caste hierarchies and gender exclusions.(xviii) Yet, this was not the only voice in Indian thought. Heterodox traditions such as Buddhist and Jain thought categorically rejected birth-based hierarchy. The Buddha’s teachings in the Assalayana Sutta dismantled Brahminical claims to superiority, arguing that moral virtue, not birth, defines spiritual worth.(xix) Jain metaphysics, rooted in the doctrine of anekāntavāda and ahiṃsā, affirmed the intrinsic value and equality of all ‘Jīvas (souls)’, regardless of caste or gender.(xx)
Tamil literary and philosophical traditions reinforce this egalitarian impulse. The Tirukkural, a foundational Tamil text, extols justice, compassion, and ethical governance, devoid of sectarianism. It articulates a vision of social order based not on varna but on virtue. Sangam literature, even earlier, reflects a materialist ethos,(xxi) grounding its understanding of the self in human relations and natural cycles rather than divine hierarchy.
While some later thinkers have attempted to reinterpret these traditions, others have rejected them altogether. Both have some merit. But irrespective of one’s larger view on the rootedness or otherwise of egalitarianism in traditional thought, even these episodic references have a significant bearing on our understanding of the state-citizen relationship. The state cannot be the starting point of an Indian public life. Instead, there must be a primary focus on citizens interacting with each other and treating each other equally. Indian thought offers a vocabulary — albeit fragmented and contested — for a constitutional morality grounded in ethical traditions.
If Indian philosophical traditions articulate the metaphysical basis of equality, the lived experiences of queer persons furnish its social foundation. Queer existence in the subcontinent is not absent or insignificant; rather, it is part of the nation’s cultural and historical fabric. Across centuries, queerness has manifested in literature, ritual, art, and everyday life — often in forms that elude modern legal recognition but nonetheless constitute modes of citizenship.
From the gender-fluid figures in the Padma Purana to the hijra communities’ ritual roles in birth and marriage ceremonies, queerness has been both visible and respected in precolonial India. The temples of Khajuraho and Konark depict homoerotic imagery without moral panic. In Tamil Nadu, the Koovagam festival continues to celebrate the transgender community’s devotion to Aravan, a testament to continuity amidst marginalisation.(xxii)
Equally significant is the vernacular archive of queer expression. Rekhti poetry in the 18th and 19th century Lucknow, composed by men in the “female voice”, foregrounded same-sex desire among
women.(xxiii) These poems, often playful and erotic, defied gender norms and captured a form of intimacy that modern law failed to comprehend. Scholars such as Ruth Vanita and Saleem Kidwai have curated letters, court records, and poetry that bear witness to romantic friendships, invisible partnerships, and ritual kinships between same-sex individuals — none of which were overtly persecuted until the colonial state imposed its normative order.(xxiv)
The British colonial regime not only criminalised queer intimacy through Section 377 but also pathologised and erased indigenous expressions of gender and sexuality. The 1871 Criminal Tribes Act targeted hijras for their gender non-conformity, labelling them hereditary criminals. This marked a rupture. The manifestation of ‘homophobia’, as Vanita and Kidwai argue, was not entirely native to India’s moral landscape; it was primarily a Victorian import. The postcolonial Indian state, however, by retaining colonial laws and moral frameworks, compounded this exclusion.(xxv) These laws not only treated queer persons unequally but also robbed them of their basic dignity and liberty.
Indeed, Section 377 functioned as a colonial mode of regulating personal liberty — a legal articulation of state suspicion and coercive power. It criminalised identity and intimacy, treating queer persons not as citizens to be protected but as subjects to be disciplined.(xxvi) Its legacy illustrates how the architecture of the colonial Constitution continued to inform the way in which the postcolonial state structured its relationship with its most vulnerable citizens.
To reimagine the Constitution through queer lives is to return to this longer history of pluralism and reclaim the ethical sensibilities embedded in lived experience. It is to demand that constitutional morality reflect the dignity, autonomy, and personhood of those who have historically defied the state’s gaze. As the Supreme Court held in Navtej Johar, the Constitution must speak for those “on the margins”, not validate the prejudices of the majority.(xxvii) This is not to rewrite the Constitution but to reimagine it.
Queer lives, then, are not supplementary to the constitutional order; they are generative of its most radical possibilities. They reorient the state-citizen relationship from one of control to one of care; from surveillance to solidarity.
Towards an egalitarian republic
We must confront the Constitution’s colonial inheritance. The colonial state constructed citizenship through exclusion and coercion; the postcolonial state often followed suit. By turning to some philosophical traditions that sporadically imagined egalitarianism beyond hierarchy, and by centring the lived experiences of queer persons whose existence embodies resilience and dignity, we chart a new path for rethinking state-citizen relations.
We need a path where the country is not defined by its capacity to rule, but by its commitment to respect its citizens. This is where constitutional morality must draw from both ancient insights and contemporary struggles. Citizenship is not a prize granted by the state. It is a condition affirmed by life itself and recognised by the state. Only then can the Constitution become what it was always meant to be: a living document of freedom, not merely its administrative manual.
Arghya Sengupta is the Founder and Research Director of the Vidhi Centre for Legal Policy. Jwalika Balaji is a Research Fellow at the Vidhi Centre for Legal Policy. Views are personal.
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References
I Chimanlal Chakkubhai Shah, Constituent Assembly Debates, Vol. VII, 6 December 1948; Rohan J. Alva, Liberty
After Freedom: A History of Article 21, Due Process and the Constitution of India (Harper Collins 2022), 5–7.
II. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 87-88.
III. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 91.
IV. Mahavir Tyagi, Constituent Assembly Debates, Vol. IX, 16 September 1949.
V. Carol Lobo, Rowlatt Act: The ‘Black Act’ and How it Backfired’ (Peepul tree, 30 August 2021).
VI. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 90.
VII. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 91.
VIII. Kengal Hanumanthaiah, Constituent Assembly Debates, Vol. XI, 17 November 1949.
IX. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 89.
X. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 90.
XI. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 86.
XII. National Crime Records Bureau 2021, Crime Head-Wise Arrests of Persons for IPC Crimes and SLL Crimes
XIII. Ibid,
XIV. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 88.
XV. ‘CAA: India’s new citizenship law explained’ (BBC, 12 March 2024)
XVI. SK Maitra, The Ethics of the Hindus (New Delhi: Asian Publication Services 1978).
XVII. ‘Chandogya Upanishad, 6.8–6.16, “Tat Tvam Asi” Dialogue’ in Patrick Olivelle (Trans,.), The Early Upanishads: Annotated Text and Translation (Oxford University Press 1998).
XVIII. Naseera NM and Moly Kuruvilla, ‘The Sexual Politics of the Manusmriti: A Critical Analysis with Sexual and Reproductive Health Rights Perspectives’ (2022) 23(6) Journal of International Women’s Studies 21.
XIX. Bhikkhu Nanamoli and Bhikkhu Bodhi (Trans.), The Middle Length Discourses of the Buddha (Wisdom Publications, 1995).
XX. Champat Rai Jain, The Key of Knowledge (1920).
XXI. Sydney Shanmugananthan, ‘An Overview of Sangam Literature’ (Ilankai Tamil Sangam, 2 September 2022)
XXII. Gill Kamal, “The magnificent Temples of Khajuraho- look beyond the erotic’ (Today’s Traveller, 31 January 202)
XXIII. Petievich Carla, ‘Gender Positions and the Urdu Ghazal: Exploratory observation on Rekhta Vs Rekhti,’ (2001) 38(3) Indian Economics and Social History Review.
XXIV. Ruth Vanita and Saleem Kidwai (eds), Same-Sex Love in India: Readings from Literature and History (St. Martin’s Press 2000).
XXV. Ruth Vanita and Saleem Kidwai (eds), Same-Sex Love in India: A Literary History (Penguin Books India 2008).
XXVI. Rohit K Dasgupta, ‘Queer Sexuality: A Cultural Narrative of India’s Historical Archive’ (2011) 3(4) Rupkatha Journal on Interdisciplinary Studies in Humanities
XXVII. Navtej Singh Johar & Ors. v. Union of India (2018) 10 SCC 1.
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