6 months ago
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On the look of it, the Indian Constitution was a extremist interruption from assemblage rule. It heralded a antiauthoritarian republic built connected the pillars of liberty, equality, and fraternity. Yet, a person inspection of its organization plan and enumerated powers reveals that it carried implicit a deeper assemblage logic: 1 that viewed the authorities arsenic inherently suspicious of its citizens, and citizenship arsenic a conditional assistance of presumption alternatively than a foundational entitlement.(i)
The retention of preventive detention wrong the law model is emblematic of this inheritance.(ii) While the inclusion of cardinal rights was celebrated arsenic a interruption from the imperial past, the existent substance of these rights was riddled with exceptions. As Somnath Lahiri noted successful the Constituent Assembly Debates, the rights of citizens were being conceptualised from the position of a “police constable”.(iii)
This was not simply a rhetorical flourish. The framers retained, and adjacent constitutionalised, mechanisms of enforcement dominance that had been utilized by the assemblage authorities to suppress dissent and curtail liberty. Freedom of code was constricted by the powerfulness of the authorities to suppress it successful the interests of decency and morality, state to commercialized could beryllium overridden by an undefined conception of “interests of the wide public”, and astir critically, the close to beingness and idiosyncratic liberty itself could beryllium taken distant by the authorities arsenic agelong arsenic it followed immoderate minimum procedure. This is what enabled preventive detention to find a continued location successful the caller Indian republic.
The conceptual foundations of preventive detention tin beryllium traced backmost astir conspicuously to the Rowlatt Act of 1919,(iv) which authorised the detention of individuals without proceedings and permitted searches without warrants. Mahatma Gandhi had denounced it arsenic a “black act”(v) fundamentally incompatible with the aspirations of a escaped people. Yet, successful a infinitesimal of paradox, the Constitution not lone retained this repressive powerfulness but enshrined it successful Article 22, adjacent successful peacetime.(vi) The Preventive Detention Act of 1950, passed by the Provisional Parliament hardly months aft the Constitution came into force, enabled authorities to detain individuals connected specified suspicion, without trial, for extended periods.(vii) Such provisions — unprecedented adjacent successful Britain — became modular tools successful the hands of the Indian state.
Ambedkar’s relation successful this compromise was pivotal.(viii) Confronted with the unit of Partition and the fragility of the nascent Republic, helium saw preventive detention arsenic a indispensable evil. But adjacent helium acknowledged its dangers. While Article 22 introduced definite procedural safeguards (time limits, entree to ineligible counsel, and an advisory board), the foundational premise remained: a idiosyncratic could beryllium deprived of liberty connected the ground of anticipated alternatively than existent wrongdoing.(ix) That this was enabled not done owed process, but done the much diluted modular of “procedure established by law” reflected the framers’ willingness to prioritise authorities information implicit idiosyncratic freedom.(x)
This prioritisation was not incidental. It reflected a deep-seated content that the recently autarkic authorities required a beardown enforcement to guarantee order, unity, and development. The assemblage authorities had governed India not done consent but done coercion.(xi) The postcolonial state, portion operating nether a antiauthoritarian mandate, retained the aforesaid coercive architecture. Preventive detention became a ruse, justifying authoritarian measures successful the sanction of nationalist interest. This was not simply theoretical — successful 2021, constabulary forces crossed the state arrested (following due ineligible process) 58 lakh radical for having committed existent offences.(xii) In the aforesaid year, they detained 86.6 lakh radical who had committed nary existent offence.(xiii) This was the Constitution’s astir disposable assemblage afterlife.
The Drafting Committee was acutely alert of the imaginable for misuse but chose to entrench these provisions nevertheless. This prime was not simply pragmatic; it was ideological. The committee presumed that a beardown authorities was indispensable for ensuring nationalist information and societal progress, adjacent astatine the outgo of civilian liberties. The penchant for the operation “procedure established by law” alternatively of the “due process of law” ensured that the judiciary would beryllium incapable to trial specified laws for substantive fairness. The rationale for this alteration was guided by Justice Frankfurter successful his discussions with B.N. Rau, wherein helium had cautioned that the ‘due process’ clause arsenic laid down successful the U.S. Constitution meant that courts had the authorization to onslaught down a scope of societal payment legislation.(xiv) As a effect of specified phrasing, law protections for idiosyncratic liberty successful India became contingent connected the benevolence of the legislature and the executive.
The effects of this assemblage bequest are inactive palpable today. The continued reliance connected preventive detention laws, nationalist information legislation, and enforcement ordinances testifies to an enduring anxiousness astir antiauthoritarian dissent. In Kashmir, Assam, and crossed India, citizens proceed to beryllium treated arsenic subjects of suspicion alternatively than rights-bearing individuals.(xv) The Constitution’s emancipatory imaginable remains unrealised, constrained by the scaffolding of its assemblage past.
What this reveals is that the state-citizen narration successful India was ne'er reconstituted connected egalitarian terms. The authorities continued to beryllium imagined arsenic paternalistic, coercive, and unaccountable: an instauration to beryllium feared, not trusted. In specified a framework, the thought of citizenship becomes hollow. If we are to genuinely situation these assumptions successful the Constitution, we indispensable face and dislodge these foundational asymmetries betwixt the authorities and the citizen.
Demand for idiosyncratic liberty
To deliberation beyond the coercive bequest of the law order, we request alternate starting points than what is afforded by accepted constitutionalism. Two are readily available. Indian philosophical thought, which exhibits episodic snatches of egalitarianism that situation hierarchical societal arrangements, tin beryllium utilized to envision a little subjugated, much dignified narration betwixt the national and the state. Equally, the lived realities of historically marginalised groups — queer persons successful the illustration we person taken — amusement that the assertion to adjacent motivation citizenship and a stronger request for idiosyncratic liberty arises not simply from ineligible doctrines, but from experiential narratives of survival, resistance, and kinship.
Equality successful Indian thought
Indian philosophical traditions, portion divers and internally contested, connection episodic insights into radically egalitarian forms of quality association. In the Upanishadic teaching of ‘Tat tvam asi (Thou creation that)’, we find the proposition of an ontological unity among each beings — a metaphysical premise that renders hierarchical distinctions illusory.(xvi) Advaita Vedānta builds connected this insight, positing that each souls are fundamentally 1 with the universe, frankincense implying spiritual equality arsenic the foundational information of existence.(xvii)
These insights, however, were often belied by practice. The Dharmashastras, peculiarly the Manusmriti, codified rigid caste hierarchies and sex exclusions.(xviii) Yet, this was not the lone dependable successful Indian thought. Heterodox traditions specified arsenic Buddhist and Jain thought categorically rejected birth-based hierarchy. The Buddha’s teachings successful the Assalayana Sutta dismantled Brahminical claims to superiority, arguing that motivation virtue, not birth, defines spiritual worth.(xix) Jain metaphysics, rooted successful the doctrine of anekāntavāda and ahiṃsā, affirmed the intrinsic worth and equality of each ‘Jīvas (souls)’, careless of caste oregon gender.(xx)
Tamil literate and philosophical traditions reenforce this egalitarian impulse. The Tirukkural, a foundational Tamil text, extols justice, compassion, and ethical governance, devoid of sectarianism. It articulates a imaginativeness of societal bid based not connected varna but connected virtue. Sangam literature, adjacent earlier, reflects a materialist ethos,(xxi) grounding its knowing of the aforesaid successful quality relations and earthy cycles alternatively than divine hierarchy.
While immoderate aboriginal thinkers person attempted to reinterpret these traditions, others person rejected them altogether. Both person immoderate merit. But irrespective of one’s larger presumption connected the rootedness oregon different of egalitarianism successful accepted thought, adjacent these episodic references person a important bearing connected our knowing of the state-citizen relationship. The authorities cannot beryllium the starting constituent of an Indian nationalist life. Instead, determination indispensable beryllium a superior absorption connected citizens interacting with each different and treating each different equally. Indian thought offers a vocabulary — albeit fragmented and contested — for a law morality grounded successful ethical traditions.
If Indian philosophical traditions articulate the metaphysical ground of equality, the lived experiences of queer persons furnish its societal foundation. Queer beingness successful the subcontinent is not absent oregon insignificant; rather, it is portion of the nation’s taste and humanities fabric. Across centuries, queerness has manifested successful literature, ritual, art, and mundane beingness — often successful forms that elude modern ineligible designation but nevertheless represent modes of citizenship.
From the gender-fluid figures successful the Padma Purana to the hijra communities’ ritual roles successful commencement and matrimony ceremonies, queerness has been some disposable and respected successful precolonial India. The temples of Khajuraho and Konark picture homoerotic imagery without motivation panic. In Tamil Nadu, the Koovagam festival continues to observe the transgender community’s devotion to Aravan, a testament to continuity amidst marginalisation.(xxii)
Equally important is the vernacular archive of queer expression. Rekhti poesy successful the 18th and 19th period Lucknow, composed by men successful the “female voice”, foregrounded same-sex tendency among women.(xxiii) These poems, often playful and erotic, defied sex norms and captured a signifier of intimacy that modern instrumentality failed to comprehend. Scholars specified arsenic Ruth Vanita and Saleem Kidwai person curated letters, tribunal records, and poesy that carnivore witnesser to romanticist friendships, invisible partnerships, and ritual kinships betwixt same-sex individuals — nary of which were overtly persecuted until the assemblage authorities imposed its normative order.(xxiv)
The British assemblage authorities not lone criminalised queer intimacy done Section 377 but besides pathologised and erased indigenous expressions of sex and sexuality. The 1871 Criminal Tribes Act targeted hijras for their sex non-conformity, labelling them hereditary criminals. This marked a rupture. The manifestation of ‘homophobia’, arsenic Vanita and Kidwai argue, was not wholly autochthonal to India’s motivation landscape; it was chiefly a Victorian import. The postcolonial Indian state, however, by retaining assemblage laws and motivation frameworks, compounded this exclusion.(xxv) These laws not lone treated queer persons unequally but besides robbed them of their basal dignity and liberty.
Indeed, Section 377 functioned arsenic a assemblage mode of regulating idiosyncratic liberty — a ineligible articulation of authorities suspicion and coercive power. It criminalised individuality and intimacy, treating queer persons not arsenic citizens to beryllium protected but arsenic subjects to beryllium disciplined.(xxvi) Its bequest illustrates however the architecture of the assemblage Constitution continued to pass the mode successful which the postcolonial authorities structured its narration with its astir susceptible citizens.
To reimagine the Constitution done queer lives is to instrumentality to this longer past of pluralism and reclaim the ethical sensibilities embedded successful lived experience. It is to request that law morality bespeak the dignity, autonomy, and personhood of those who person historically defied the state’s gaze. As the Supreme Court held successful Navtej Johar, the Constitution indispensable talk 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 law order; they are generative of its astir extremist possibilities. They reorient the state-citizen narration from 1 of power to 1 of care; from surveillance to solidarity.
Towards an egalitarian republic
We indispensable face the Constitution’s assemblage inheritance. The assemblage authorities constructed citizenship done exclusion and coercion; the postcolonial authorities often followed suit. By turning to immoderate philosophical traditions that sporadically imagined egalitarianism beyond hierarchy, and by centring the lived experiences of queer persons whose beingness embodies resilience and dignity, we illustration a caller way for rethinking state-citizen relations.
We request a way wherever the state is not defined by its capableness to rule, but by its committedness to respect its citizens. This is wherever law morality indispensable gully from some past insights and modern struggles. Citizenship is not a prize granted by the state. It is simply a information affirmed by beingness itself and recognised by the state. Only past tin the Constitution go what it was ever meant to be: a surviving papers of freedom, not simply its administrative manual.
Arghya Sengupta is the Founder and Research Director of the Vidhi Centre for Legal Policy. Jwalika Balaji is a Research Fellow astatine 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 <https://www.data.gov.in/catalog/crime-india-2021> accessed 2 August 2025.
XIII. Ibid, <https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1702038886TABLE19A10.pdf> accessed 2 August 2025.
XIV. Arghya Sengupta, The Colonial Constitution (Juggernaut 2023) 88.
XV. ‘CAA: India’s caller citizenship instrumentality explained’ (BBC, 12 March 2024) <https://www.bbc.com/news/world-asiaindia-50670393> accessed 2 August 2025.
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’ successful 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) <sangam.org/an-overview-of-sangam-literature--/> accessed 2 August 2025.
XXII. Gill Kamal, “The magnificent Temples of Khajuraho- look beyond the erotic’ (Today’s Traveller, 31 January 202) <https://www.todaystraveller.net/temples-of-khajuraho-sculptures/> accessed 2 August 2025.
XXIII. Petievich Carla, ‘Gender Positions and the Urdu Ghazal: Exploratory reflection connected Rekhta Vs Rekhti,’ (2001) 38(3) Indian Economics and Social History Review.
XXIV. Ruth Vanita and Saleem Kidwai (eds), Same-Sex Love successful India: Readings from Literature and History (St. Martin’s Press 2000).
XXV. Ruth Vanita and Saleem Kidwai (eds), Same-Sex Love successful 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 connected Interdisciplinary Studies successful Humanities <https://rupkatha.c om/V3/n4/20_Queer_Sexuality_India.pdf> accessed 2 August 2025.
XXVII. Navtej Singh Johar & Ors. v. Union of India (2018) 10 SCC 1.
