(Over the next few days, the Indian Constitutional Law and Philosophy Blog will run a book discussion on Rohit De’s A People’s Constitution: The Everyday Life of Law in the Indian Republic. This is the introductory post.)
There is a standard – and long-standing – narrative about the evolution of the Supreme Court of India. In the first thirty years of its existence (or so this narrative goes), the Court was an elite institution, mediating conflicts between landowners and the State in constitutional battles over the right to property, and often taking the side of the former. All this changed after the Emergency, and with the advent of public interest litigation: now the Court began to take seriously the concerns of the vast majority of Indians, transforming itself – in the words of Upendra Baxi – from “the Supreme Court of India” to “the Supreme Court for Indians.”
A striking feature about this narrative is how firmly it places the Supreme Court at its centre. It is the Court that assumed a certain institutional posture in its first three decades, and its the Court – driven by heroic, individual judge-crusaders – that reversed itself after the 1980s. Perhaps ironically, this narrative fits easily with another account: that the Indian Constitution is a top-down imposition upon the People, that was – and is – culturally and socially at odds with it. These two accounts come from opposite ends of the political spectrum, but they unite in attributing to the Court the exclusive agency of shaping Indian constitutionalism, and denying any significant role to non-institutional actors – i.e., the People.
In recent times, a certain degree of self-satisfaction with respect to the PIL project has been questioned, with books like Courting the People (discussed here) pointing out that a project that is ostensibly about democratising the law, but continues to be driven by judges and lawyers, will likely come up short in fulfilling its democratic aspirations. Rohit De’s A People’s Constitution now questions our popular beliefs about the first half of the popular narrative: the first thirty years of the Court were not quite as undemocratic as we have been led to believe. It was not just economic and social elites engaged in a war of position with the post-colonial State, with the Court serving as the battleground; rather, it involved the People, in a much deeper and more meaningful way than is presumed.
De frames this argument around four early Supreme Court judgments, that will be familiar to students of constitutional law: Behram Pesikaka v State of Bombay (concerning prohibition in Bombay), Hari Shankar Bagla v State of MP (concerning commodity controls under the Essential Supplies Act), Mohd. Hanif Qureshi v State of Bihar (concerning cow slaughter prohibitions), and State of UP v Kaushaliya (concerning the regulation sex work under the Suppression of Immoral Trafficking Act). In each chapter – that deals with one of these judgments – De asks the following questions: who was the person – or people – who brought the case to Court (and, relatedly, who were the people who commenced litigation that led up to the Supreme Court judgment at issue – often, there would be prior cases, filed by other people, that would set the stage for the final adjudication)? What were the social, economic, and cultural contexts that triggered their decision to challenge the State in a court of law? Once in court, what legal strategies did the petitioners adopt to maximise their chances of success? How did the State and the broader society respond to the judicialisation of this particular conflict? And, after the judgment, what were the consequences – often going beyond what the published decision might suggest?
Five themes emerge out of De’s study.
First – and this really is the core argument of the book – a close analysis of the discursive terrain around these cases suggests that, contrary to the caricatured account of the early Court – the Indian constitutional project was not judge-driven, or even elite-driven. Whatever the circumstances surrounding the framing of the Constitution, these cases show that once framed, the Constitution, constitutional idioms, and – dare we say it – constitutionalism percolated “downwards” very swiftly. Behram Pesikaka was a Parsi government employee, Hari Shankar Bagla a small businessman who was arrested while traveling in a train, Mohammed Qureshi one among three hundred qureshi butchers whose livelihoods were hit by cow slaughter prohibitions, and who came together to take the case to Court, and Kaushaliya a sex worker arrested under the SITA. Each of these persons elected to frame their conflict with the State in constitutional terms: that the prohibition law violated the rights to equal protection, free expression, and privacy, and that commodity controls violated the right to trade, as did the cow slaughter provisions and (strikingly) the prohibition of sex work. And each of these petitioners also framed their arguments in the constitutional language of limitations upon arbitrary State power, and the necessity of the State following the rule of law and a fair procedure. That is not all: as De shows, these cases did not appear in court out of vacuum. They required prior, public groundwork, where constitutional claims were raised and agitated in other forums – before administrative committees and town councils – before they were taken to Court. As De argues, therefore, it is facile to argue that the Constitution is received by the People as an alien imposition; the reality is far more complex, and shows that among many constituencies, affected people took the Constitution, and made it their own.
Secondly – not only were the Petitioners non-elite people, they were, in many ways, disadvantaged – in fact, De suggests that it was their very inability to influence policy that led them to turn to the Court for redress. The qureshis who challenged the cattle slaughter prohibition belonged to a religious minority, and were classified as such; small businessmen such as Bagla were (as De illustrates fascinatingly) subjected to particular scorn and obloquy in newly independent India; and sex workers, of course, were viewed as a moral threat to the character of the nation. What is particularly interesting is that these were people who had least to expect from participating in the formal channels of communication with the State. As De shows, there were other, informal options – of negotiation and accommodation – open to them; but instead, they chose another formal route to engage with – that of the Court and the Constitution.
Thirdly – this engagement mattered. On paper, the constitutional challenges failed: the Prohibition law was upheld (for the most part), commodity controls and the ESA were upheld, cow slaughter legislation was upheld, and the SITA was upheld. However, by exploring the context outside of just the published decision, De is able to show that the consequences are far more complex than is initially assumed. For example, the exceptions that the Supreme Court mandated to the prohibition regime – for instance, that of medicinal alcohol – ultimately grew so unwieldy, that they destroyed the regime from within. Similarly, the Court’s seemingly minor concession in Qureshi – that aged or infirm cattle could be slaughtered – actually provided a significant breather for the butchers whose livelihoods were affected, and forced other states to take a step back and bring their own (more stringent) laws in line with the judgment. The implementation of the SITA in a way that respected High Court pronouncements caused significant problems for the Police, and for social workers driven by ideas of moral purity and hygiene. And so on. Consequently, it is not just that the People used the Constitution as a terrain on which to defend themselves against the power of the State – it is also that they made tangible and non-trivial gains in doing so, and the State was forced – in De’s words – to “discipline itself.” This is a lesson that is particularly important for the present day – indeed, the very evening before amendments to the Aadhaar Act, in response to the Supreme Court’s judgment – are due to be introduced in the Lok Sabha.
Fourthly – the greatest successes came not through agitating substantive constitutional rights, but by insisting on fidelity to procedure. We are familiar with Justice H.R. Khanna’s famous words in ADM Jabalpur that “the history of personal liberty is the history of adhering to procedure.” De shows us how that worked in a far more quotidian set of contexts. So, judges might be reluctant to accept that sex work was constitutionally protected as a “profession” under the Constitution, but they were far more willing to consider the proposition that giving a Magistrate the power to expel a sex worker from a particular area was a breach of the Constitution. Judges may be hesitant to invalidate the prohibition regime per se, but they could be persuaded to accept that barging into an individual’s home by the police breached a constitutional boundary. And so on. Once again, at a time when fidelity to procedure is coming under the spotlight once more, this is a lesson we would do well to remember.
And fifthly, a close look at the contexts of these cases pushes back against another dominant narrative – that of the Nehruvian governments being “anti-market.” De shows through the judgments that what was actually happening was that “the new state was attempting to create a new set of market norms and reshape networks of circulation, whether of goods (alcohol, beef, and cotton), capital, or bodies.”
While one would not go so far as to call the moment of the framing of India’s Constitution as an “original sin”, there is little doubt that the manner in which the Constitution was framed caused – and continues to cause – a lingering unease. At the end of the day, the Constituent Assembly was not elected on the basis of universal adult franchise. The Draft Constitution was not put to the People in a referendum. The Constitution was written in English, the language of the coloniser. Members of the Constituent Assembly did protest that the concepts and vocabulary of the instrument was alien and foreign to Indian soil.
None of these are objections that can be dismissed in a cavalier fashion. And when we engage with them seriously, they present two disquieting questions: what is it that makes the Constitution legitimate? And is the constitutional project – as it stands today – worth defending?
A People’s Constitution helps us to answer both questions. The legitimacy of the Constitution stems from how its addressees – the People of India – use it to frame their claims and their interests, as a terrain on which they can shed social, economic, and cultural disadvantages, and face their opponents (often, the State) on equal terms, and as an instrument that puts them in an equal dialogue with power. De’s account of the raucous, polyvocal 1950s and 1960s shows us how the Constitution did just that. And as long as the Constitution does that, the Indian constitutional project will always be worth defending.
For that, A People’s Constitution is a profound and valuable intervention into an ongoing national conversation, and deserves to be read and studied closely.
(Three guest commentators will follow, commenting on specific aspects of the book. This will be followed by a Response from the author.)