ICLP Book Discussion: Rohit De’s “A People’s Constitution” – IV: Always of the People?

(As part of our blog round-table book discussion, this is the third – and penultimate – of the substantive responses to Rohit De’s A People’s Constitution, by Namita Wahi).

namita wahi
Namita Wahi

Rohit De’s book, “A People’s Constitution: The Everyday Life of the Law in the Indian Republic” is a deeply informative, discursively deliberate, and delightfully entertaining, account, of how the “people” or “ordinary Indians”, often from minority or subaltern groups in India, not only engaged with the Indian Constitution but also transformed its application to their daily lives. In doing so, De argues that the “people” parleyed on equal terms with the state, which would not have been possible without the text of the same “Constitution”, that has been variously critiqued in scholarly literature as “undemocratic”, an “elite” project, and “an alien imposition” on the people of India. In focusing on the “individual litigant”, rather than “judges”, “lawyers”, or the “occasional politician” as the central actors of the story, De uses his elite access to the Supreme Court’s archives as law clerk to former Chief Justice K G Balakrishnan, to illuminate instead the lives and livelihoods, and trials and tribulations of what he describes as “non elite, marginalised” groups. These four groups include Parsi liquor business owners and operators, Marwari businessmen trading in state controlled commodities, Muslim Qureshi community butchers, and urban sex workers.

De’s unpretentious prose is interspersed with charming little details and newspaper cartoons about the motivations of policymakers and civil society groups who created the objectionable laws that were the subject of challenge from these four groups of “individual litigants”, and the mechanisms used by policy makers to build consensus amongst the “people” for such laws, which in turn provoked resistance from groups that De also terms the “people”.  Though loquacious at times, De tells a compelling story, and presents a textured analysis both of the processes by which laws were made in the first two decades post independence, and how they were sought to be unmade by “ordinary litigants”.

I applaud De’s scholarly excavations through the Supreme Court’s untouched archives, and find his arguments and claims in the book broadly persuasive. Below, I share some thoughts on these claims, not with a view to disagree with them, but in the hope of pushing De and other scholars to establish some of these claims more forcefully.

First, De claims, that despite the flaws in its drafting which have led some to label it as an “elite” or “alien” constitution, the Indian Constitution provided ample scope for “ordinary people” to litigate its guarantees before the Supreme Court, and in doing so, to indigenise and ordinarise it. Here, I must add, that as I have written elsewhere, the Indian Constitution was the first constitution of a commonwealth country drafted and adopted by its own nationals, which makes it more indigenous than most constitutions that came before, and most that came after. So, in my own scholarship, I have not strongly felt the burden of this criticism. But insofar as this critique of the Constitution’s legitimacy is deeply embedded within existing constitutional scholarship especially amongst historians, anthropologists, and political scientists, and continues to cause unease amongst legal scholars as noted by Gautam Bhatia in his introductory post about De’s book, it is important to take this critique head on and I welcome De’s attempt to do so in his book.

Second, De claims that, contrary to the entrenched conventional narrative about the Supreme Court, which regarded it as a Court for the “propertariat” before the emergency, and the court of the “proletariat” thereafter, in actual fact, the Court gave a voice to the “proletariat” even during the period that it was most vilified as the court of the “propertariat”. Again, I have sympathy with this claim, having sought previously to rebut it in my doctoral thesis “The Right to Property and Economic Development in India” (2014), which studies the constitutional property rights jurisprudence of the Court, that has been responsible in large part for the court’s infamy on this count. De’s painstaking description and analysis of the backgrounds of the “individual litigants”, some as religious, and others as gender minorities, and as coming from a lower social and economic status, go a considerable distance in rebutting the “propertariat” image of the Court.

Third, De suggests that the proof of the pudding is not always in the eating; it is also in the preparation of it. De demonstrates that ultimately, legal victories in the Supreme Court are not the only way of evaluating the success of the Constitution’s “fundamental rights” guarantees for Indian citizens. Sometimes, legal loss is but a step in building consensus towards a more long lasting social victory (as seen in the context of the s. 377 litigation in recent times). But if we trawl through the Supreme Court’s case archives, as De has done, it is quite possible that we will find many more such instances that substantiate this claim. At other times, the process of litigation helps to halt the governmental juggernaut, which gives the litigants enough time to transition to occupations or beliefs that do not fall afoul of the law (as seen in the four kinds of cases that De describes, as well as the property rights jurisprudence of the Court with which I am more familiar).

Now, I air my (mild) disagreements on some of these themes. First, the claim that the Supreme Court also protected rights of the “proletariat”, even as it protected the rights of the “propertariat” adds laudable complexity to the oft-repeated unidimensional view of the Court pre-emergency. It does not however, refute the deeply entrenched claim that the Court did stand for the “propertariat”. After all, the Nehruvian state’s painting of the Court as reactionary and anti poor was not merely because it lost the property cases that it did (though these are much fewer than what seems to be embedded in the public imagination), but its claim that these losses were fundamental barriers in reshaping the economy in a way that was essential to ensure economic development and social redistribution, which would alleviate poverty and misery. Therefore, in order to fully rebut the claim that the Court was reactionary and protective of elites, we cannot escape engagement with the court’s property rights jurisprudence.

Second, it is clear that there are many categories of elites. As Pierre Bourdieu has noted, there are many types of capital that help create social class: financial capital, social capital, cultural capital and symbolic capital. De’s “ordinary litigants” were not landowners. But insofar as these litigants were government officials (in a recent op-ed, Surjit S Bhalla has noted that India’s “jobs crisis” is in large part created by a demand for government jobs, thus providing some indication of the extent to which a government job confers economic and social capital to ordinary Indians today, even in a much more booming private market economy than that which existed during the period De interrogates), or owned businesses or participated in trades, or were taxpayers within a largely urban setting or “bazaar economy” as De calls it, at a time, when more than 70% of the Indian population lived in villages and the average life expectancy of all Indians was a mere 41 years, some of De’s “ordinary litigants” can be considered lesser elites. Of the four groups of litigants, Parsis though a religious minority, we know are, and have been a socially and economically empowered community in India, and the Marwaris, from the dominant Hindu community are also a socially and economically influential community in India. De’s claims are much more persuasive vis-a-vis the women sex workers, who both because of their gender and the “immoral” nature of their work, and the Muslim Qureshi community, who because of their “religious” minority status, and because of their involvement in a profession that was antithetical to the most sacred belief of the majority Hindu community regarding “cow worship”, can be considered truly marginalised.

De’s second argument, that the Nehruvian state was not anti-market but rather sought to reshape the market in accordance with certain social and economic goals, and used the law to achieve its goals of reshaping market relations, is also convincing. But, in my view,De could have engaged with this claim not just historically, but also theoretically. The claim in political science literature that the Nehruvian state was anti-market, stems from a pre- legal realist understanding of state market relations, according to which, the state and market are two separate domains, and it is possible for the state to choose whether to allow market forces to operate in freedom or to impose a statist vision on the economy. De’s response to this claim, insofar as he demonstrates that the Nehruvian state was not statist but actively involved in reshaping the market economy, though substantively robust appears pre- legal realist. Legal realist scholarship by scholars like Holmes, Hohfeld, Llewellyn, and Hale and further developed by Critical Legal Scholars, like Duncan Kennedy, Roberto Unger, and Morton Horwitz, has demonstrated that even in the most “free market” economy of the world, namely the United States, the state and the market are not two separate domains, but rather the state always creates the market economy through law. The reverse is not just a historically, but a theoretically untenable proposition.  De engages with the post realist literature in his description of Hendrik Hartog’s understanding that “law and legal practices were intrinsic” to the lives of ordinary Americans, noting that this understanding is missing from literature about India. Likewise, it would have been illuminating for us, if De had engaged with the post realist literature on state market relations.

But these are minor quibbles with De’s otherwise masterly account of how the Constitution empowered ordinary Indians to effectuate the promise of the Republic where all citizens, irrespective of caste, class, gender, or social and economic status, could enjoy the basic rights of life, liberty, equality, and property. Rohit De’s book is a seminal contribution to the recent body of scholarship that has sought to interrogate many conventional narratives about the Indian Constitution, and its self-appointed highest guardian, the Indian Supreme Court. It deserves to be read once for the sheer brilliance of the narrative, and its peek into the “everyday life of the law in the Indian Republic”, and reread many times for its discursive navigation across scholarly literatures, ranging from history, politics, sociology, anthropology and the law, and his insights that take our understanding further in all of those fields.

4 thoughts on “ICLP Book Discussion: Rohit De’s “A People’s Constitution” – IV: Always of the People?

  1. Legal authority of state has been a Hallmark in creating market during Nehruvian era. It’s surprising to see that entrepreneurship of technology, is now driving law and state..The delayed response of state, is creating vast opportunity for undefined market where state is hopelessly helpless. This new elite, is stretching legal boundaries of our constitution to another extreme. And Supreme Court has been truly hardworking for defining new frontiers rather than state.

  2. Once again this review points to the need for skepticism in perpetuating grand narratives (which purport to be exclusive) about the Supreme Court and the Constitution.

    I would say all of what Rohit De, Namita Wahi and Gautam Bhatia point out are intuitive insights and no litigating lawyer would be surprised by these claims. Many things can happen simultaneously. This is what case-studies usually establish.

    So who all, I wonder, have crafted the grand mythical narratives about the Supreme Court and the Constitution that De, Bhatia and Wahi disagree with. I would like to read some of these writings.

    Until recently, Indian academic scholarship on law and the Constitution was, at least to my taste, very unsatisfactory, superficial and self-congratulatory by insiders. And no one was doing any real research.

    On the comments about the interaction between the State and the market, and about the theoretical underpinning of this interaction, I would suggest reading “The Great Transformation” by Karl Polanyi and the concept of “embedded liberalism” by John Ruggie. The State and Market always interact and influence the other. There would be no functioning market without the law.

    On the comment that “De engages with the post realist literature in his description of Hendrik Hartog’s understanding that “law and legal practices were intrinsic” to the lives of ordinary Americans, noting that this understanding is missing from literature about India.” One might want to mention legal pluralism in India, especially in the 2-3 decades after independence and in rural areas even thereafter. But formal law and legal practices are certainly intrinsic to the lives of ordinary Indians in 2018.

    Just some disparate thoughts.

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