The Possibilities of Anti-Colonial Constitutionalism – Commentary on State of West Bengal v. Anwar Ali Sarkar and others AIR 1952 SC 75

Abstract

The case of Anwar Ali Sarkar has been a founding precedent for equality jurisprudence in India and elsewhere. The case is most cited for the two-step reasonable classification test. Yet over the years, it has become increasingly clear that there are limitations to the test as a doctrinal framework to adjudicate equality. This article is a comment on Tarunabh Khaitan’s accompanying rewritten judgment on Anwar Ali Sarkar, which seeks to offer a more robust doctrine of equality grounded in the anti-colonial character of the Indian Constitution. In this piece, I locate the original judgment in its historical and socio-political context to understand the possibilities of building an anti-colonial jurisprudence of equality for and of the Indian Constitution, and to evaluate the differences between the original and rewritten judgments. I argue that the rewritten judgment offers a more robust defence of equality, in line with strands of anti-colonial ideas that shaped the framing of the Indian Constitution, as well as offering a restrained method for judicial interpretation that acknowledges historical context while centering the interpretation of law and rules.