Decolonization of Indiaâs Legal System through Transformative Constitutionalism: Contemporary Legislative and Judicial Developments towards Indianization

Arvind Tiwari; Sonali Kusum

Abstract

The decolonization of the Indian legal system is a felt necessity in the present context by the Government of India. The Indian Government is commemorating the âAzadi Ka Amrit Mahotsavâ which is an initiative of the Government of India to celebrate and commemorate 75 years of Independence and the glorious indigenous history of its people, culture, and achievements (Azadi Ka Amrit Mahotsav, 2023). Under this âAzadi ka Amrit Mahatosvaâ one of its salient commitments is to decolonize the Indian legal system by removing the colonial mindset, and practices, or in other words seeking the Indianization of legal system. It is estimated that around 250 to 290 British colonial-era legislation still exists and is effective in the Indian Legal framework. By enacting the Repeal Act, the Executive, through its Ministries, Law Commission through its successive reports, the legislature recommends that colonial Law which is obsolete and outdated, should be repealed. This decolonization is pertinent for reasons related to the colonial laws manifest the notion of slavery, suppression, inferiority of the existing indigenous system, and population to the Colonial rulers. Besides, decolonization is imperative for the British era colonial laws which are rendered irrelevant and do not suit the needs of the democratic and constitutional governance strengthening socio-economic and legal rights of the citizenry. India has been under British colonial rule for almost 90 years, from the year 1858â1947. During this long British colonial rule, Indian legal system has been immensely influenced. This is testified as the Constitution of India itself is taken after the Government of India Act of 1935. Further, the major criminal manuals, including the Criminal Procedural Code and Indian Penal Code, represent the English common law system present in England, and the Victorian era, Judeo-Christian era concepts of offences and crime. Most of the existing Indian laws are not only a piece of colonial inheritance but also these regulations are representative of colonial vestiges, colonial conventions, and colonial relics. This has been the subject of condemnation by Judges and policymakers as redundant. Under British colonial rule, some sections of society suffered negatively under this harsh colonial rule being denied their basic rights, liberties, and freedom over all their right to life. By invoking the concept of transformative constitutionalism, the judiciary seeks to break away from the adverse impact of colonial rules and archaic practices. The plight of homosexuals or same-sex relationships is still regulated by Victorian-era morality, which is implicit in the Indian Penal Code (IPC) as addressed by the Supreme Court in Suresh Kumar Koushal & Anr, v. Naz Foundation & Ors, 2013. The offences of âsodomyâ and âbuggeryâ exist in the criminal manual, which has the colonial era definitions borrowed from the English Law as The Buggery Act of 1533, re-enacted in 1563.

Similarly, the concept of âadulteryâ is viewed from the age-old common law doctrine of âCovertureâ, imbibed in the definition of adultery in IPC discussed by the Supreme Court in Joseph Shine v. Union of India, 2018. The condition of criminal tribes, the transgenderâs community, are still battling the social stigma under the colonial era repressive rules of the Criminal Tribes Act, 1876, amended 1924 and now known as Habitual Offenders Act, 1958. Hence, in view of the above, this article articulates the progressive approach of decolonization of the legal system through transformative constitutionalism and repeal, and modification of colonial Law, towards the Indianization of the legal system.

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Chapter 5 Decolonization of Indiaâs Legal System through Transformative Constitutionalism

Contemporary Legislative and Judicial Developments towards Indianization

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Chapter 5 Decolonization of Indiaâs Legal System through Transformative Constitutionalism

Contemporary Legislative and Judicial Developments towards Indianization

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Chapter 5 Decolonization of Indiaâs Legal System through Transformative Constitutionalism