—Atul Kumar Dubey, Research Scholar, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur, West Bengal, India; Prof. (Dr.) Uday Shankar is a Professor of Law, Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur, West Bengal, India
Constitution as a Founding Moment
India became independent in 1947 amid the violence of partition and the unresolved constitutional status of more than 550 princely states, whose place within the new Union remained undecided. Two years later, a Constituent Assembly of 389 members completed a Constitution that had to bind together a polity. The founding members were opposed to the colonial-era inheritance of differentiated forms of political representation, including separate electorates and communal representation and favored universal adult suffrage and a single, common electoral roll. That choice reflected a preference for a “citizenship free from predefined identities”. The Constitution was seen as a response to historical problems, and the founding moment brought three things together: the end of colonial rule, the creation of sovereign democratic India, and an attempt to transform Indian society. That combination is historically unusual as decolonisation, democratisation and constitution-making all occurred within a single moment. However, the founding members were confronted with a society in which political freedom existed alongside profound social inequality. As Indian society was not yet a democratic society, the Constitution was exhaustively codified to replace what Dr BR Ambedkar describes as “an Indian soil, which is essentially undemocratic”. This explains why the Indian Constitution contains both institutional arrangements for representative government and commitments to equality, social justice and socio-economic transformation. This dual character is foundational to how the Indian Constitution should be read. At once, it contains the architecture of power and a substantive catalogue of values. The question this raises is: what changed when the Constituent Assembly enacted the Constitution, declaring India a sovereign democratic republic? We argue that the coming into force of the Indian Constitution marked a decisive rupture in the source of political sovereignty without a complete break from the institutional past. More particularly, we argue that the Indian Constitution relocated sovereignty from colonial authority to the people of India; however, it required the new constitutional order to work through institutional and administrative machinery inherited from the colonial order. The Indian Supreme Court in Virendra Singh v. State of Uttar Pradesh (1954) described the situation as follows:
“…at one stroke territorial allegiances were wiped out and the past obliterated, … at one moment in time the new order was born with its new allegiances, springing from the same source all grounded on the same basis, the sovereign will of the peoples of India.”
Thus, Indian constitution-making was not merely a legal consequence of independence. Its deeper significance lies in the possibility of creating democratic citizens through democratic politics. As Madhav Khosla has argued, a significant strand of 19th-century European political thought, running through Alexis de Tocqueville and John Stuart Mill, holds that “democracy was unsuited to certain societies, that it mandated the presence of background conditions to enable its existence”. On this view, democracy was the product of prior social development and not a means of producing it. Philip Spratt wrote about the Indian Constitution that:
“[The] Indian Constitution is in its main outlines a liberal constitution, to be imposed upon a society which is not a liberal society, and cannot be expected to make such a constitution work”.
The Indian constitutional founders rejected that premise and instituted a democracy in a difficult setting where Indian society was divided by caste, religion, language and burdened by centuries of inherited hierarchy. This placed India’s constitution-making in sharp contrast with Western political thinkers. The aspiration of the founding members can be read as a trajectory from colonial subject to constitutional citizen to democratic participant and, finally, to constitutional claimant. But an aspiration to create constitutional claimants raises an immediate question: claimant to what, and what happened to the rights and legal relationship these claimants inherited from the pre-constitutional order after 1950? Did the Indian Constitution extinguish all such rights and claims by establishing a new constitutional order, or could an element of the preceding legal order continue to govern? In this regard, it is interesting to look at two Indian Supreme Court decisions, Virendra Singh v. State of Uttar Pradesh (1954) and State of Gujarat v. Vora Fiddali Badruddin Mithibarwala (1964). Both decisions offer contrasting accounts of whether the Indian Constitution represented a total severance from the past or specific elements of it continued to have legal significance after 1950.
Two Curious Cases: What Survived After 1950?
The first case arose from the grants made in 1948 by the Rulers of Charkhari and Sarila to certain petitioners. After the Indian Constitution came into force, the Union revoked these grants by relying on the Act of State doctrine. It argued that a new sovereign may refuse to recognize rights granted under the previous regime. The Indian Supreme Court in Virendra Singh v. State of Uttar Pradesh (1954) rejected that argument:
“In our opinion, the Constitution, by reason of the authority derived from, and conferred by, the peoples of this land, blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold.”
On this reading, the Indian Constitution was a clean break with the past. However, the decision of the Indian Supreme Court in State of Gujarat v. Vora Fiddali Badruddin Mithibarwala (1964) complicated that answer. This second case arose from the grants made by the Ruler of Sant in 1948, which the State of Bombay did not recognise after the princely state merged with it. The State again relied on the Act of State doctrine, and the respondent argued that the doctrine was a remnant of imperialist and expansionist jurisprudence and inconsistent with the Indian constitutional framework. The Indian Supreme Court, by a majority of 4:3, ruled in favour of the State:
“There is no warrant for holding at the stroke of midnight of the 25th January, 1950, all our pre-existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up … the process was not one of destruction, but of evolution.”
Virendra Singh and Vora Fiddali do not sit easily together, and the disagreement goes beyond the technicality of constitutional transition. One reads the Indian Constitution as having swept away the arbitrary power of the old regime at a stroke, while the other reads it as having grown out of the existing institutional and legal arrangements that regime left in place. Both readings can claim support, whether for rupture or continuity in 1950. The colonial and princely sovereignty gave way to popular sovereignty; however, the courts, statutes, and administrative machinery through which popular sovereignty would operate were inherited. Seen this way, the two benches did not disagree about what happened in 1950; they disagreed about how much of the pre-constitutional legal order survived with it. The question posed at the outset: claimant to what?, has remained contested rather than settled in 1950. The Indian Constitution relocated the sovereignty to the people, but could not determine which parts of the pre-constitutional legal order it had displaced. This tension has persisted beyond the founding moment, most recently in In re: Article 370 of the Constitution (2023), where the Indian Supreme Court was required to consider the constitutional status of an institutional arrangement rooted in the history of a pre-existing constitutional relationship between Jammu and Kashmir and India. This illustrates that the constitutional order continues to confront legal arrangements shaped by the transition in 1950.
Virendra Singh and Vora Fiddali, read together, reveal the tension between constitutional rupture and legal continuity. The tension also bears on the transformation that constitution-making sought to achieve from subject to citizen and from citizen to constitutional claimant. In view of this, the integration of the princely states and the formation of the Union of India did not automatically resolve the legal consequences of the transition. The problem, therefore, was not simply whether the elements of the old order survived, but whether those elements were to be understood within a Constitution founded on popular sovereignty.
Suggested citation: Atul Kumar Dubey and Uday Shankar, The Indian Constitution’s Unfinished Argument with Its Past, Int’l J. Const. L. Blog, Sept. 25, 2026, at: http://www.iconnectblog.com/the-indian-constitutions-unfinished-argument-with-its-past/