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(This is the concluding essay in our blog Round-Table on Rohit De’s A People’s Constitution.)

I am grateful to Gautam Bhatia for hosting this discussion on A People’s Constitution. I am thankful to Gautam Bhatia, Suhrith Parthasarathy, Prof Ratna Kapur, Dr Namita Wahi and Dr Bryan Tiajocano for their generous, thoughtful and deep engagements with the book. This has really been a privilege.

Response to Gautam

Gautam Bhatia offers a marvelous summary of my book and it’s core arguments, with clarity and precision that I am envious of. I have little to add, except address two of the points he raises, as they become relevant in the later discussions.

As Gautam states, at its core the book asks what makes the Indian constitution legitimate and worth defending. Both these propositions are truisms for most lawyers, indeed, the nature of legal practice requires lawyers, even in systems whose legitimacy is far more fraught than India, to take it on their own terms. The Indian lawyer’s burden becomes easier (particularly compared to their South Asian neighbours), as Namita Wahi points out, by the fact, that the Indian constitution was a rare postcolonial constitution which was authored by Indians through a representative process. While it is impossible to have an authentically representative assembly, it’s equally necessary to not reproduce the claims made by the Congress in 1946 to be the sole national voice representing all shades of opinion.

While the Indian constituent assembly was a remarkable experiment, which made efforts towards inclusion, it is important to recognize that both at the time and later, questions were raised about its representative capacity. The socialist leadership, including Jaiprakash Narayan, Achyut Patwardhan and Kamaladevi Chattopadhyaya, who were a powerful force within the Congress refused to participate in an assembly that was not elected on adult franchise. As the assembly was based on the limitations of franchise in 1946, several influential groups like the Scheduled Caste Federation or the Justice Party had much lower representation than they would have in 1952 (or did in 1937) As the book shows, both the Communists and the Hindu majoritarian parties saw the constitution as an alien object, imposed from above without reflecting popular will or national culture. Furthermore, the constitution applied to territories and people who were not involved in its writing, including Hyderabad, Goa and Sikkim. Pooja Parmar has shown how the Constitution had limited participation and excluded representation from many tribal areas.

India’s constitutional legitimacy has been seen as being renewed through the largely uninterrupted practice of universal adult franchise and elections. As Ornit Shani shows, in How India Became Democratic, the creation of an inclusive electoral democracy went hand in hand with the making of the constitutional compact. This is why the Indian constitution did not face the kind of crisis of legitimacy that Pakistan’s early constitutions (which, like India’s, looks remarkably like the Government of India Act of 1935) or the Soulbury or Jenning’s Constitutions in Sri Lanka did.

My book addresses both these concerns, by showing how groups that did not necessarily participate in constitution making and were often written out of electoral logic and competition continued to engage and strengthen constitutional culture. At its most polemical, it argues that the constitution owed more to the engagement by those on the margins of democracy, for whom the courts and the text was the only resource in their moments of desperation or their basis for aspiring to inclusive citizenship.

Finally, critical constitutionalism in India, perhaps best articulated by Prof Upendra Baxi, has argued that the Indian constitution redeemed itself only after the adoption of PIL and engagement with substantive socio-economic rights in the 1980s and 1990s, becoming a constitution for the proletarian instead of just the “propertariat”. As I discuss later, the book shows that even in the “so called conservative period”, the court could be a resource for the poor and disenfranchised. It mines debates framed in formal procedural liberalism, to show its roots in demands for substantive justice, socio-economic claims and community identity.

This brings me to the last point identified by Gautam i.e. a close look at the contexts of these cases pushes back against another dominant narrative – that of the Nehruvian governments being “anti-market.” Politics in the Nehruvian state is often understood through the lens of class conflicts, between agrarian elites and industrial capital, with a technocratic state playing a balancing act. In a recent review essay, Sudipta Kaviraj describes the early phase of politics in India as one in which the debates were carried out primarily in the language of familiar Western democratic discourse, in terms of conflicts between the political ideals of laissez faire and state intervention, between capitalist freedom and socialist redistribution. These politics visualized the movement between social classes as central to public life, while politics based on caste and religious identity remained underground and inarticulate. Almost nostalgically Kaviraj notes that it is in the 1970s that Indian politics begins to speak a political vernacular, when the politics of caste, region and religion completely erased an earlier vocabulary of class interests, capitalism and socialism. This curiously mirrors the narrative of constitutional litigation, which suggests the first two decades were dominated by formalist debates over liberal rights to property, but after the Emergency turned towards questions of substantive distribution.

The book aims to complicate this narrative in two ways: the first, by showing that the Nehruvian government was attempting to create a new set of market norms and reshape networks of circulation, whether of goods (alcohol, beef, and cotton), capital, or of bodies. This process led to the translation of some issues as economic while others were seen as political or cultural. Thus, sex work becomes a question of morality and public health, and cow slaughter one of faith and religion, though the legal challenges arise due to questions of livelihood. Similarly, cases that read as standard invocations of individual liberty were challenges to police powers to enforce cultural practices and protect individual interests.

Response to Suhrith

Suhrith through his crisp engagement, gets to the heart of the procedural legal puzzle in the book, one faced by many of the actors and perhaps best understood by the litigating lawyer. My research shows that assertions for “substantive rights” got less traction than assertions made over procedure. Suhrith argues that this is because the former required the court to engage with competing arguments over facts and testing claims which constitutional courts were not procedurally equipped to do. This comes through most clearly in the Hanif Qureshi cases, where faced with competing reports, figures and affidavits on the economic impact of a ban on cow slaughter, Chief Justice Das complained about being lost in the “labyrinth of figures”. The nefarious consequences of being unable to ascertain facts continued when the Supreme Court upheld an absolute ban on cow slaughter in 2005, relying largely on the BJP-led Gujarat Governments report that said that the value of cow dung and urine was sufficient to keep the cow economic after its milk had dried up.

 Suhrith alerts us to the limitations and dangers of the strategies that courts have used, relying on amici or setting up commissions, and underlines the inherent limitation in the republic of writs, i.e., a reliance upon the State for facts. As a historian, I would like to underscore that constitutional adjudication was new to lawyers, litigants and judges in the 1950s and their remained a great deal of uncertainty about procedure. Shanti Bhushan in his memoirs recalls an anecdote where he decided to challenge a traffic violation ticket through a writ petition, but this involved him educating the judge on how a writ worked.

The courts and the state in 1950s were unprepared by the consequences of writs. This is, for instance, why a municipality found itself praying for time to file a response as they had not budgeted. The institution of constitutional remedies in the 1950s was a radical act, which has often been underappreciated. Prior to the constitution, while a handful of High Courts could issue writs within a circumscribed geographic area, legislation sought to render the government immune from prosecution. Various indemnity clauses made it mandatory to acquire the consent of the governor-general before the institution of proceedings against government officials, and the courts were precluded from investigating the validity of government orders. All matters relating to revenue or its collection were excluded from the jurisdiction of the high courts, ensuring that the chief objective of the colonial government remained unhindered.

Constitutional remedies were profoundly disruptive in the 1950s and opened up spaces for resistance and cooption. Lawyers and litigants turned to it in droves, and this novelty is remarked upon in law textbooks, newspapers, bureaucratic reports and memoirs. Vikram Seth who wrote much of his Suitable Boy in the shadow of his mother’s law reporters, captures some of this when Justice Chatterji remarks “the law is changing everyday. One keeps reading about writ petitions being filed before the High Courts. Well, in my day we were content with regular suits”. While politician Mahesh Kapoor follows writ petitions filed by the princes against land reforms, young lawyer Firoz Khan is admonished by the Chief Justice of Brahmpur for filing a writ against the University, and is told “I see no reason for a writ at all, young man. Your client should have gone to a munsif magistrate. If he wasn’t satisfied with his decision he could have gone to a district judge on appeal and come here on further appeal. You should spend a little time choosing the appropriate forum rather than wasting the time of the court. Writs and suits are different things, young man, two quite different things”. A fuming Firoz marked presciently, “in a few years writs will be accepted method in such cases. Suits are too slow….I hope they will be flooded with writs soon.”[1]

Response to Ratna Kapur

I am grateful to Prof Kapur for her careful reading of chapter 4, which dealt with challenges by sex workers to the anti-trafficking law, and for making explicit the ways in Husna Bai’s petition intervenes in current debates on trafficking and sex work. In particular she argues that the partnership between Indian feminists and the postcolonial state to bring about a coercive anti-trafficking law in the name of rescue and rehabilitation mirrors contemporary critiques of alliances between “conservative religious groups, progressive-left, centre- liberal, progressive secular feminist groups as well as sex work abolitionists around issues of sex work and anti-trafficking”, as well as the emergence of what Janet Halley, Prabha Kottiswaran and others have described as “governance feminism”. I am humbled by her suggestion that this chapter provides “a crucial archive for marginalised women and sexual subalterns to draw upon in contemporary constitutional rights struggles” and that the legacy of Husna Bai’s struggle can be found in undercurrents of contemporary trans rights and LGBT advocacy. As Prof Kapur underlines, this episode of claim making and organizing by sex workers remains a largely forgotten history.

I wanted to briefly expand on this “forgetting” and the process of archival excavation. When I began my research in 2009, I had expected to find most of the figures who appear in the book. The court cases involving prohibition, essential commodities and cow slaughter had become part of the formal legal canon and circulated as precedents. I was consciously looking for engagements by women, but assumed I would find it around questions of personal law, an area on which the majority of work on gender and citizenship in the 1950s has focused on. I was also aware of a body of work that focusses on partition, and the creation of gendered forms of citizenship either through linking citizenship claims by marriage or through the process of recovery of abducted women.

Husna Bai’s case wrote itself into my project, as I was surprised by the volumes of anxious bureaucratic correspondence generated by a single judge decision of the Allahabad High Court, which did not give any legal relief. I soon realized the decision had become canonical for the interpretation of the Suppression of Immoral Trafficking Act, and circulated among lawyers engaged in defending women arrested under it. As one of the earliest cases on the SITA, decided within two weeks of the act coming into force, the decision was reproduced in all leading commentaries on the act. Mazhar Hussein’s popular commentary on the SITA published in 1958 reproduced a newspaper article that described Justice Sahai’s decision, as the case had not yet been published in any law journals. In an introduction, Hussein noted that Justice Sahai had observed that sections 20 and 4(A) placed unreasonable restrictions and were hit by Articles 15 and 19 of the Constitution. I also found that similar arguments were being made by women engaged in sex work themselves, either in public protests or in their conversations with social workers and women activists.

Secondly, Husna Bai’s case helped me think about the complexities of the promise of freedom and liberty that the Constitution offered. For the women representatives in the constituent assembly, almost all of whom were active in the campaign to enact SITA, freedom in their view would not only mean formal equality between men and women, but include an active duty cast upon the state to intervene to bring about substantive equality and to free “unfree populations” like women trapped in sex work.

As the historian Daniel Botsman has argued, freedom needs to be understood as “an idea that has in modern times been used to reorder social relationships and constitute new frameworks for their management”. In making this argument, Botsman builds upon the idea of freedom as an integral part of the “reorganizing project of modern power”. The insertion of Article 23 into the Constitution and the STIA needs to be understood as facilitating the democratic state’s regulation of the sexuality of marginal women, the reimagining of prostitution as an economic problem central to the nation’s development, the replacement of the discourse of penalization with that of rehabilitation, and the legitimization of the role of welfare agencies and women social workers in the process.

Response to Namita Wahi

I greatly appreciate Dr. Namita Wahi’s rigorous examination of the arguments made in my book and pushing me to take some of the arguments further. She points out that my work rebuts the assumption that the pre-emergency court worked for the propertied by showing how it was open to and in some cases receptive of the claims of the “proletariat”. She suggests that a stronger rebuttal would be to engage with the Supreme Court’s formal property rights jurisprudence which would show that the state lost fewer cases over property rights than were “embedded in public imagination” and that these losses did not pose fundamental barriers to the state’s redistributive plans. I would concur, and look forward to reading Namita’s forthcoming history of the “Fundamental Right to Property” which I believe will fundamentally unsettle existing narratives on the court.

While my book does engage with insights on the court’s behavior, my emphasis was less on what the courts did but on why people came before the court. I see the court’s decision and final judgment as only one point, in a larger process through which a question gets constitutionalized. Lawyers are trained to treat the Supreme Court judgement as a final word on a question, to be pored over, analyzed, mined for extractable precedent and principles and in cases of unwanted results to be overturned through a judicial process. This is partly why the Chief Justice expressed great surprise at my desire to look through the entire case proceeding, when the final judgment was available. What I hope I was able to show was that for the litigations, or the people, the judgment itself was only a small part of larger process. For instance, despite the Supreme Court holding in Kaushaliya that Article 19 did not confer a right to prostitutes to practice their profession, sex workers continued to assert their right both before courts and in the public. Or in Mhd Yasin’s case, well before the Supreme Court reached a decision, the petitioner hired a drummer to announce to the public that in the case between the people and the town, the people had prevailed.

Property cases (particularly pertaining to agricultural land) made up the majority of cases before appellate courts in the 1950s, continuing a trend from the late 19th century where the majority of civil litigation was around agricultural land. This, and the existing body of work on land reform litigation, helped me decide to focus instead on other aspects of the postcolonial regulatory state. As Indivar Kamtekar has shown, the colonial state grew dramatically both in its ambitions and its personnel during the Second World War, a period when even the limited liberties and procedure available at the time were suspended. These coercive administrative technologies were eagerly embraced by the postcolonial state as part of its ambition to transform Indian society and economy, but had to be reconciled with electoral democracy and a republican constitution that promised a “community of political equals before constitutional law.”

Secondly, and again echoing Wahi’s findings, I too find that the right to property is a weak one and suggest that it’s the weakness of the right that leads to the recoding of property claims as those of free speech, equality or privacy. This innovation is particularly striking because the colonial order of rights was rooted in claims to property and custom, both of which were heavily circumscribed in the new constitutional order, and held to be morally abhorrent in public discourse. In the late 1930s, Parsis involved in the liquor trade had protested prohibition on the grounds that it destroyed their businesses   or interfered with religious practice, but in the 1950s cast their objections on the grounds of equality (the exemptions granted to various classes) or liberty.

 I appreciate Wahi’s invitation to explain what I mean by “the people”. As I mentioned, the dominant protagonists of my book include both figures like Parsi journalists and Marwari merchants who possess wealth and status along with figures like Qureshi butchers, vegetable sellers and prostitutes who are close to what the imagined figure of the subaltern would be. I would resist reading marginality merely by class status or economic wealth. Indeed, it’s not clearly evident that a vegetable seller or a prostitute would necessarily be destitute (though there are several petitions from refugees who had recently lost all their material means of support).

I argue in A People’s Constitution that independence produced a particular form of subalternity –electoral minorities who were unable to convince political parties and representatives to address their issues. The protagonists of the book had limited social capital against a state whose legitimacy was rooted in popular representation. They all belonged to groups that were vilified in public discourse- the Anglophilic Parsi, the corrupt Marwari, the cruel butcher or the immoral prostitute- and had limited opportunities for alliance building outside their own group. The basis for rights claims in colonial India had often been tied to claims to “ancient customary liberties.” For instance Muslims had argued for a long standing custom of cow sacrifice on Eid to challenge municipal regulations against cow slaughter or prostitute. However, with independence, electoral participation and representation became the basis for claim making. Unsurprisingly, these minorities were overrepresented in constitutional litigation. Constitutional law offered a way to frame their particular concerns as a generalizable problem for the broader public and private interests assumed public significance.

Wahi clearly identifies that all these groups largely live within urban areas, ranging from big cities to qasba towns, and leave out a large swathe of the Indian population. This represents the reality I found in the archive and I think offers some insight into how law and society operate in India. It is clear that the option of litigation was not available to all groups. In some ways, the ability to litigate was networked resource, available to groups that had access to capital and information. This was not determined solely by class, but was tied to the existence of informational networks, as can be seen by the sequential litigation that began to come from vegetable vendors from towns across Western UP challenging municipal licensing laws. Finally, it’s clear that legal consciousness was stronger among groups that were subjected to greater regulation and scrutiny by the state, which was often the case in urban areas. However, as work by scholars like Anand Vaidya shows, these options became available to groups like tribals, as they come under greater regulation through legislations like the Forest Rights Act.

Finally, Wahi suggests that my reading of the Nehruvian state as not being anti-market but seeking to create an alternate market ethics and forms of regulation needs to engage more seriously with American legal realism. This scholarship made a significant intervention in challenging the mythology of the “free market” and “free labour” in American public discourse and the idea that the market is distinct from the state. While appreciative of the suggestion and the scholarship, I find it less helpful to explain the situation in India in the 1950s. Living in a colonial economy, Indian politicians and thinkers, since the late 19th century demonstrated keen awareness that the “economy” that they functioned in was a bounded object created by colonial law. Dadabhai Naoroji in his “Poverty and UnBritish Rule in India” framed the existing political economy as one that far deviated from the “natural laws of the economy” and the promise of British governance. Historians like Ritu Birla and Julia Stephens have shown how vernacular merchants like Marwaris and Muslim mercantile groups were aware of how colonial law marked some of their activities as economic and others as “cultural”. By the late 1930s, when the National Planning Committee was set up, almost all shades of Indian political opinion saw an expansive role of the state in managing and developing the “national economy”. Rather than depicting the Nehruvian state as anti-market, I argue that one needs to pay attention to the kind of market and market ethics the state sought to promote. This comes out most explicitly in the chapter on commodity controls, where the state targets the petty merchant as a hoarder/usurer and an “uneconomic capitalist”, unlike large industry. In a caste society, economic activities were closely connected to ascriptive identities. Thus, the Nehruvian states attempts to reengineer production, distribution and consumption were often resisted through caste networks. This challenges conventional distinctions between “economic” and “cultural” rights as well as individual and group rights.

Response to Dr Brian Tiojanco

I am grateful to Dr Tiojanco for putting my book in conversation with the scholarship on popular constitutionalism. In particular, he notes an apparent tension in my reading of roots of Indian constitutionalism with that of Prof Bruce Ackerman’s, a scholar who both of us owe an intellectual debt to.

In his forthcoming book on world constitutionalism, Prof Ackerman argues that the Indian constitution’s durability can be attributed to the “ textual enshrinement of the principles that the founding generation had so valiantly won” and the popular legitimacy enjoyed by Nehru and the Congress party due to the memory and participation of thousands of people in the Congress led freedom struggle.

Tiojanco carefully shows how, despite the apparent contradiction, our arguments are complementary. As I show elsewhere, with their opposition to the Simon Commission and the writing of the Nehru Report and the Karachi Declaration on Fundamental Rights, the Congress had made it clear than any future constitution of India would be authored by Indians. Through successive demands for a Supreme Court, a bill of rights and the separation of the executive from the judiciary, they had made explicit a commitment to constitutionalism. However, with independence and the challenges of office, while the Congress was committed to constitutionalism in form (as demonstrated by the relative lack of interference in judicial appointments in the 1950s in contrast to other postcolonial states), they were less concerned about the content. Thus, when the constitution became an obstacle, the ruling party followed legal process and amended the constitution. In contrast, partly because they were outside the electoral game, the protagonists in my book sought shelter and fidelity to the constitutional text and constantly held the government accountable (taking seriously Zairul Hasan Lari’s plaint that the government too should learn “constitutional morality”).

In this, I owe a debt to Ackerman’s foundational scholarship where he argues that only those who are politically mobilized form a part of the people. What I hope to show is that political mobilization, particularly after independence, included many groups and peoples who were outside the consensus of the ruling party, whose engagements reinforced the constitutional charter than the Congress had played a significant role in creating. This contradiction comes through most explicitly in one of the first cases before the Indian Supreme Court on preventive detention, where the leader of the Communist Party of India was defended by the President of the Hindu Mahasabha (both parties that were critical of the constitution at the time of writing). A People’s Constitution shows that even in cases of everyday life, that were less explicitly political, constitutional litigation was enabled not by enlightened individuals but due to the existence of energized associational groups be it the Qureshi Jamaat or the Tawaif’s Association.

[1] I am grateful to Manav Kapoor and Mythili Vijaykumar for reminding me of Seth’s references.