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(As part of our blog round-table book discussion, this is the fourth – and final part – of the substantive responses to Rohit De’s A People’s Constitution, by Bryan Dennis Tiojanco. All page numbers in brackets are references to page numbers in the book. This post will be followed by a response from the author.)

bryan dennis tojianco

Bryan Dennis Tojianco

Constitutions usually live only about 17 years. Only one of five constitutions reach the age of 50, which is usually when they become stable. That the Indian Constitution remains strong after almost 70 years is thus a remarkable feat in itself. It is ‘the longest surviving constitution in the post-colonial world, and it continues to dominate public life in India’, (2). Moreover, the Indian Supreme Court, which many consider ‘the most powerful constitutional court in the world’, continues to enjoy ‘tremendous public support’, (3). Three circumstances make this even more impressive. First, a national constitution is usually sturdier when the process that led to its enactment was more inclusive. The Constituent Assembly that drafted the Indian Constitution, however, was not popularly elected; the draft itself was also adopted without a public referendum. Second, constitutions enacted after 1945 have on average lived shorter lives than others. The Indian Constitution came into force in 1950. Third, with a population that is overwhelmingly poor, illiterate, and socially stratified, as well as ethnically and linguistically diverse, India lacks many conventionally listed social requisites of an enduring constitutional democracy.

The longevity (despite the odds) of the Constitution of India, the world’s largest constitutional democracy, makes Rohit De’s A People’s Constitution: The Everyday Life of Law in the Indian Republic a must-read book for constitutional scholars. It is ‘a social history of constitutional law’ in India during ‘the Nehruvian period, which begins with Jawaharlal Nehru’s appointment as prime minister in 1947 and ends with his death in 1964’, (22 & 26). Thus it covers the first decade of the Indian Constitution’s life. Because a country’s constitution needs to outlive its founding generation before it attracts enough ‘veneration’ to ensure it ‘requisite stability’, its first decade are the years when it is most fragile. How and why the Indian Constitution attracted sufficient support to survive this decisive decade is therefore an important question for constitutionalists. De’s account masterfully marshals many historical facts which help answer both in ways that enrich mainstream constitutional theories.

One such theory is that of Bruce Ackerman, who gives advance praise for A People’s Constitution:

This book offers genuinely original insights into the transformation of India’s Constitution into a living reality of social and economic life. Its emphasis on the role of ordinary citizens, and civil society organizations, provides a fascinating perspective ignored in standard accounts focusing on the statecraft of political elites in New Delhi, (back cover).

This praise is the equivalent of saying touché in a discussion—i.e., it is an admission that De makes a good point that complicates Ackerman’s own take on Indian constitutionalism. Indeed, De cites Ackerman when he refers to ‘Constitutional theorists’ who ‘have attributed the success of the [Indian] Constitution to its moment of founding, the installation of a popular nationalist movement that was led by farsighted leaders committed to the rule of law’, (5). In this ‘celebratory story of the Indian Constitution’, De writes, ‘the main heroes are its charismatic and dedicated founding fathers who enshrined the principles of the nationalist movement into the constitutional document and largely abided by it’, (6–7). It was only after ‘the sheen wore off the next generation of politicians’ that the Indian Supreme Court became ‘the site for strengthening constitutional values’, (7).

Ackerman summarizes the four stages of this intergenerational story in chapter two of his forthcoming book (on file with the author):

We begin…with Gandhi and Nehru transforming the Congress Party…into a mass movement during the first half of the twentieth century—and then turn to the…effort to constitutionalize Congress’ revolutionary politics [during the Nehruvian period], and then move to the bitter succession crises [after Nehru’s death] and finally the Supreme Court’s effort [after the crises] to establish itself as the leading defender of the constitutional principles left behind by the revolutionary Constitution established by the Founders.

What these four stages yield, argues Ackerman, is what he calls the constitutionalization of charisma: the Indian Constitution’s continuing legitimacy springs from its textual enshrinement of the principles that the founding generation had so valiantly won. American constitutionalists would routinely take this view for granted. In American constitutional culture, ‘the rule of law must appear to represent the people: law is authoritative because it is representative’.

Although De writes that A People’s Constitution ‘presents a contrary argument’ to this celebratory story, (9), I see it more as a needful complement. In several places, Ackerman seems to equate Nehru’s Congress Party with ‘We, the People of India’. Indeed, his previous work suggests that he is sympathetic to the view that only those who were politically mobilized at a republic’s founding were part of ‘The People’. In contrast, A People’s Constitution suggests that constitutional litigation enabled ‘groups that are marginal and have limited social capital amid a wider public’ and who ‘were vilified in public discourse’—i.e., ‘prostitutes, traders, or butchers’—to also gain representation as part of ‘We, the People’ by reframing their claims to fit the constitutional text, (222). De says that determining whether these marginalized litigants actually saw the Constitution as representing them ‘remains a puzzle for further inquiry’, and indeed may be ‘impossible to prove’, (219). Indeed, analogical evidence from anthropological studies of religion show that whether this is so may in fact be ‘entirely irrelevant’ since resort to a court, much like resort to a diviner or shaman, may be likely more ‘an empirical bet, the expectation and hope that particular rituals will [help resolve] practical concerns’, rather than an indicia of ‘faith or commitment’ to the idea of popular sovereignty. Be that as it may, the story De tells in A People’s Constitution offers a riveting account that such may have very well been the case.

Ackerman argues that the Indian Constitution did not need ratification because its ‘claim to speak for “We the People” had been established only through the exercise of charismatic authority by Nehru and Congress’. Nehru was easily able to constitutionally amend away judicial resistance because, during the Nehruvian period, ‘it was the living memory of the great sacrifices made by millions during the period of insurgency [led by Nehru’s Congress Party], not the constitutional text…that was the primary engine of popular legitimacy connecting the Parliament in New Delhi with the Indian people’.

De also acknowledges that ‘[t]he postcolonial state drew its legitimacy from its democratic mandate and development agenda, making it particularly hard for electoral minorities to challenge its agenda publicly’, (11). This is why these minorities ‘resorted to the courts’, (11). But De also notes that courts ‘were careful about what they struck down’ because they ‘remained conscious of the fact that these laws had been enacted by a popularly elected government that enjoyed both democratic legitimacy and popular authority’, (220). This proved problematic for electoral minorities, considering that ‘[t]he ambition of the postcolonial state was to reshape both society and the economy’ and ‘[t]he Constitution created a powerful central government with vast revenue-raising powers and virtually blanket powers of legislation,’ (23). Thus ‘[t]he police powers of the state expanded massively at the same time that democratic processes were being implemented’, (24).

Here we encounter what Edmund Morgan calls ‘the central problem of popular sovereignty’: ‘the problem of setting limits to a government that derived its authority from a people for whom it claimed the sole right to speak’. While Morgan notes that it is impossible to empirically demonstrate this claim, his 17th–18th century history of popular sovereignty in England and America is a tale of intergenerational efforts ‘to bring the facts into closer conformity with the fiction’ in ways that ‘gradually transformed the very structure of society’. Because the idea of popular sovereignty ‘tended to draw more and more actual people into the political process,’ writes Morgan, it enabled more and more of them ‘to translate abstractions into practice’ and thus ‘give a plausible factual basis to the fictions of popular sovereignty’. This, in turn, worked to set limits on popular government—thus helping resolve popular sovereignty’s central problem.

Similar to Morgan’s history, A People’s Constitution shows that the Indian Constitution allowed ‘some of India’s most marginal citizens’ to lead a process that ‘profoundly transformed everyday life in the Indian republic’, (9):

the Constitution…came so alive in the popular imagination that ordinary people attributed meaning to its existence, took recourse through it, and argued with it…Much to the surprise of politicians and bureaucrats across the country, Indians from all walks of life began flooding the courts and the public sphere with claims based on the Constitution’, (9).

The Congress Party established judicial review partly because part of its crusade was against the colonial regime’s arbitrariness, and it had promised that the ‘new regime would set itself apart from the colonial regime by reclaiming and instituting the rule of law’, (15). Thus, as Ackerman also acknowledges, the Indian Supreme Court ‘was far from silent’ during the Nehruvian period, and ‘identified a host of issues on which it could speak authoritatively without provoking a parliamentary override’. For Ackerman the main implication of this for constitutionalism was to bring about ‘a cultural revolution within the legal profession’: lawyers started to accept judicial review as a matter of course, and with the gradual accumulation of precedents striking down legislative initiatives, ‘the legal order’s self-confidence increased, creating a supportive environment for the professionally disciplined development of constitutional doctrine’.

For De, the ‘central actor’ of this revolution in constitutional culture was not the lawyer, but ‘the citizen litigant’, (26). They were the

thousands of individuals who turned to the court…from groups that were marginalized both socially and economically in independent India. Although only a few could be considered to be absolutely poor, many participated in the informal economy or were rendered marginal because of their religion or their sex. This diverse group of litigants included prostitutes, Muslim butchers, Hindu refugees, Muslims who had been evicted from their homes, vegetable vendors, and even the occasional peasant rebel’, (27).

Thus De suggests that ‘the constitutional culture of the 1950s was shaped predominantly by the interventions of certain marginal groups’, (222). These interventions enabled marginal ‘citizens to insert themselves into an elite conversation’, and ‘compelled state authorities, including high-ranking bureaucrats and ministers, to come to court to defend their policies. It also required them to respond specifically to the claims made by the litigants’, (25).

Take De’s account of Prohibition in India, for example. Prohibition had been a central plank of the Congress Party since the mid-1920s, and it ‘enjoyed support from a wide cross-section of the party,’ (39). Moreover, ‘[a]s a favorite project of Gandhi’s, Prohibition gained a degree of moral sanctity after his death’, (72). The Constitution, however, provided ‘a structure within which Prohibition could be resisted and negotiated’ that ‘transformed the debate over Prohibition in ways that the Constitution drafters had not anticipated,’ (34). Because the Constitution provided both ‘a space where the state’s vision of social order could be contested, and…a neutral language to challenge the democratic legitimacy that was enjoyed by the state’, constitutional litigation ‘increasingly emerged as a means through which the state policy could be safely critiqued’, (72). This strategy proved successful. As Bhatia eloquently puts it in his introduction to this series, ‘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’.

De bolsters his point by adding another crucial item to the conventional list of fundamental changes to its colonial past (universal adult suffrage, an interventionist government, a liberal rights regime, and judicial review) that the Indian Constitution introduced. The Indian Constitution made India a ‘Republic of Writs’, (9), says De, by giving every citizen ‘the right to constitutional remedies’, (10). This set of innovations

allowed any citizen of India to petition the Supreme Court for the enforcement of fundamental rights granted in the Constitution. The powers granted to the state and provincial high courts (i.e., the appellate courts) were even wider: they were empowered to issue remedies in forms of writs against the state for the violation of fundamental rights, legal rights, and “any other matter”, (10).

 

Thus these remedies ‘empowered citizens to challenge laws and administrative action before the courts and greatly enhanced the powers of judicial review’, (10). I italicized part of this quote to emphasize that judicial review is not the same as the right to constitutional remedies. Recall that Marbury v. Madison, the United States Supreme Court’s 1803 decision which established judicial review in that country, ultimately ruled that even though Marbury was entitled to a writ of mandamus, the Court did not have the jurisdiction to issue it. In contrast, the Constitution of India gives the Indian Supreme Court and every High Court the power to issue writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari for the enforcement of fundamental rights.

De notes that this broad right to constitutional remedies (alongside the other breaks with India’s colonial past) ‘led to a massive explosion of litigation before the Indian courts’ and ‘radically transformed the practices of governance in ways the Constitution drafters did not expect’, (10). In the Constitution’s first year, ‘the Supreme Court heard more than 600 writ petitions’, and ‘[b]y 1962 the Supreme Court had heard 3,833 such cases’, (11). A People’s Constitution can be read as a story of how this immediate impact of the broad right to remedies greatly bolstered the legitimacy of India’s Constitution during its decisive first decade.

(The author is a post-doctoral fellow at the National University of Singapore.)