Freedom by Other Means? The Paradox of Postcolonial Power in Dominion India
- Jayanti Ranjan
- Mar 17
- 8 min read
Authored by Aditya Mudhana, a first-year law student pursuing B.B.A., LL.B. (Hons.) at Jindal Global Law School
Introduction: The Indian Dominion and the Illusion of a Clean Break
These words, spoken by Jawaharlal Nehru on the eve of independence, have come to symbolise India’s historic break from colonial rule. However, behind the beauty of this poetry lies a complex legal and political issue. It was argued by Rohit De that between 1947 and 1950, India was a British Dominion. India was far from dismantling the colonial state, operating under colonial-era laws, institutions and colonial structures. What is striking, however, is how the Indian National Congress- once the foremost opponent of colonial repression – adopted and employed these very instruments of control. Congress governments during the Dominion period used preventive detention laws, press censorship, and emergency powers inherited from the British to repress dissent, crush insurgencies, and integrate princely states. Civil liberties that had been the foundation of its opposition under colonial rule were now suspended or applied selectively. As Rohit De demonstrates, the Congress-led state invoked the authority of the Crown and continued to act through the office of the Governor-General, enforcing laws that had once been denounced as undemocratic and oppressive. This strategic reappropriation of colonial power reveals a fundamental tension at the heart of India’s transition: the legal architecture of the Empire was not dismantled—it was redirected. This paper argues that while India attained political independence in 1947, it did so by inheriting and operationalizing the very legal and institutional machinery of colonial rule — a machinery that not only shaped the Dominion period but continued to inform state practices well into the post-republic era, reflecting on the question of whether the British legal order ever truly left us.
Congress’s Legal Inheritance: Colonial Tools Repackaged
Congress’s strategic double standard was revealed right after independence with the adoption of the Government of India Act, 1935, as the interim constitutional framework, making only minor amendments. Although the Act had previously been denounced by Congress as a “slave constitution that attempted to strengthen and perpetuate the economic bondage of India.” It was used as a framework for its members to contest elections, obtain positions in the provincial legislatures, and then ultimately work towards undermining the Act. This strategic pragmatism—condemning colonial law in rhetoric while deploying it in practice—marked the beginning of a duality that would define Congress’s relationship with state power post-1947. This paper focuses on three key colonial tools – preventive detention, press censorship, and executive ordinance powers examining each by contrasting their use under British rule with their repurposing by the Congress-led government.
Firstly, Preventive Detention existed in India under the rule of the British since 1818. The Bengal State Prisoners Regulation III empowered the colonial administration to detain persons indefinitely without trial, solely on the grounds of suspected criminal intent. Comparable statutes were subsequently introduced in the Madras and Bombay Presidencies, extending similar powers across British India. Similarly, the Defence of India Act, 1939, authorised detention without trial if the authorities believed it was necessary to prevent an individual from acting in a manner considered harmful to national security or defence.
Now, with respect to Congress’s reliance on preventive detention, the first nationwide Preventive Detention Act was passed on 26 February 1950, after the dominion period. However, this formal legislation merely codified what had already been practised by Congress-led provincial governments in the preceding years. For instance, the West Bengal Public Safety Act, 1947, was enacted soon after independence, granting the executive power to detain individuals without trial in the name of maintaining public order.
Secondly, Press censorship was a hallmark of British colonial rule, prosecuted under a series of legislation such as the Press Regulation Act of 1799, the Gagging Act of 1857, and the Vernacular Press Act of 1878, all intended to suppress dissent and restrict Indian public discourse. Most durable was the Press and Registration of Books Act, 1867, which legitimised government control over the publishing industry and would go on to shape press law in independent India. In spite of a firm commitment to freedom of the press by Indian leaders like Jawaharlal Nehru during the freedom movement, this commitment was quickly abandoned after 1947.
In March 1947, the interim government, headed by Congress, set up the Press Laws Enquiry Committee (PLEC) to review colonial press laws and align Indian media regulation with that of advanced democracies. Public interest in the committee was minimal, perhaps motivated by the hopeful anticipation that press controls would naturally atrophy post-independence. Such optimism was misplaced. While the PLEC proposed the abolition of discriminatory laws specific to the press, it also recommended the retention of colonial provisions like the Official Secrets Act and Sections 124A, 153A, and 505 of the IPC—legal tools earlier used to suppress dissent. In practice, the Congress government signalled that it intended to persist with colonial practices of press management, repackaged in the framework of sovereign governance. Most importantly, the PLEC recommended narrowing the definition of sedition under Section 124A, recognising its colonial misuse against the press. Yet, the Congress government rejected this on the grounds that the dangers of misuse of sedition laws have negligible effects on fundamental rights. This decision, alongside the Constituent Assembly’s refusal to explicitly guarantee press freedom, cemented a legal continuity between colonial and postcolonial regimes. Rather than abolishing the institutions that had once suppressed nationalist opposition, the Congress government opted to retain and legitimise them in the new democratic order, prioritising state control over liberty. Even Nehru, in the context of 1948, agreed to this contradiction, writing to the Chief Minister (CM) of Bihar, “we are now doing exactly what we have bitterly opposed in the past.” His remark acknowledged the awkward fact that the postcolonial Indian state was replicating precisely the repressive tendencies it had opposed under colonial rule.
Finally, the use of executive ordinance powers to bypass legislative scrutiny and impose unilateral rule. Under the Government of India Act, 1935, Sections 42 and 43 empowered the Governor-General to issue ordinances at the central level, while Section 88 granted the same authority to provincial governors.
These ordinances, first introduced in 1861, were ferociously opposed by Congress leaders for much of those 90 years until the Constitution came into effect on January 26, 1950, where three ordinances were promulgated that very day, reflecting how quickly these powers were normalised. Nehru’s frequent recourse to ordinances—even in spite of parliamentary majorities—betrays a deep continuity with colonial executive power, a precedent that would be expanded upon by his successors, most notably Indira Gandhi. This continuity was legitimised in the shape of Article 123 of the Constitution, which empowered the President to issue ordinances when Parliament was not in session. Though framed as an emergency provision, Article 123 lacked strong safeguards and effectively replicated the discretionary authority of the colonial-era Governor-General under the Government of India Act, 1935. The vague requirement of “immediate action” gave the executive significant latitude to bypass legislative debate. Far from being a temporary compromise, ordinance-making became a recurring feature of Indian democracy, with a total of 679 ordinances being issued from 1950-2014.
Oppressed to Executors – Postcolonial analysis
While the Congress government’s reliance on colonial tools may be justified during the dominion period by the exceptional challenges of Partition, and other substantial difficulties, their continued use well into the modern Republic era reflects a deliberate and strategic embrace of these tools rather than a temporary fix for a fragmented public. The Preventive Detention Act, 1950, enacted immediately after the Constitution came into force, extended the colonial logic of suspicion-based imprisonment into the democratic framework. Its misuse was outlined in the A. K. Gopalan case, where the Supreme Court upheld indefinite detention despite constitutional guarantees of personal liberty. Similarly, despite the promise of free expression, the Press (Objectionable Matters) Act, 1951 paralleled similar seizure of presses and forfeiture of securities – a continuation of press control mechanisms once used by the British. Furthermore, the sedition law under Section 124A, which was recently amended into Section 152 of the Bharatiya Nyaya Sanhita, 2023 was continues to criminalise dissent in the language of national security, reflecting a shift in rhetoric rather than in repressive intent. Finally, ordinance-making powers became routine-far exceeding emergency needs, as previously mentioned, over 670 ordinances had been issued till 2014 alone, many of them re-promulgated in violation of constitutional spirit, as condemned in D C Wadhwa v State of Bihar. These facts unequivocally reveal that the colonial state’s repressive actions were not only situational in nature, but with the intention to be institutionalised in the Republic, upholding the continuity of coercive governance under the guise of constitutionalism and public order.
With this continued reliance on legal frameworks from the colonial era long after independence calls for a difficult question: did the British legal order ever truly leave us? The answer I present is no, the British legal order has not truly left us, at least not in spirit. As mentioned above, many factors contribute to this answer – from prevention detention to press regulation to executive ordinances, India retained these very tools that once silenced its freedom movement. More importantly, the legal order does not just lie in its statutes or its constitution but in the mindsets of its citizens and lawmakers – the idea that the state must be protected from its people, rather than the other way around. The inversion of constitutional morality, inherited from the British principle of power retention within the society, where state power trumps individual rights, is the true colonial legacy the British have left us, and within this framework is how the republic functioned for a long time.
Call For Change
Seventy-seven years of independence, and India still operates on a legal system designed not for democracy, but for colonialism. The Indian Penal Code, 1860, and the Police Act, 1861, remain remarkably unchanged, based on colonial values of order, surveillance, and hierarchy, rather than justice, dignity, or rights. Political power has been decolonised, but legal power remains shackled by the logic of the colonial state. Reforms have been sporadic and piecemeal: the new Bhartiya Nyaya Sanhita, despite being a purported overhaul, still retains much of the colonial mindset of language and structure best put forth by retired SC Judge Justice Chelameswar – “a change in nomenclature with replacements being cosmetic… no more than window dressing.” This colonial legacy is not only confined to amending or renaming old laws but also extends to the enactment of new legislation that is arbitrary and strikingly reminiscent of colonial rule. The Unlawful Activities (Prevention) Act (“UAPA”), originally enacted in 1967 and repeatedly amended to expand executive power, further exemplifies this continuity. Much like the colonial-era Criminal Law Amendment Acts, Section 43A of the UAPA grants the state sweeping powers of detention and criminalisation based on suspicion, reversing the presumption of innocence and undermining due process. Similarly, the Armed Forces (Special Powers) Act (“AFSPA”) under Section 4(c) allows the military to operate with near-total impunity in designated “disturbed areas”, echoing the colonial state’s assumption that certain regions must be controlled through extraordinary force. Despite expert commissions like the Justice B P Jeevan Reddy Committee and protests calling for its repeal, AFSPA remains in force, revealing how deeply embedded colonial hierarchies of suspicion and coercion still are in the legislative minds.
Most needed is not cosmetic reform but a shift of constitutional thinking—firmly establishing the primacy of the citizen, taking legal discourse out of the clutches of imperialism, and creating institutions on the basis of accessibility, transparency, and accountability. The judiciary, too, must take on the role of a transformative force, not a custodian of legal tradition. Constitutional morality must replace colonial legality as the guiding norm of interpretation and application. The British legal order is not only a relic—it is a shadow we still opt to remain under. Its elimination will require more than repeal; it will require political imagination, institutional courage, and a reassertion of our collective democratic aspirations. Only then can we claim we're not only politically independent, but also legally free.
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