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A People's Constitution: The Everyday Life of Law in the Indian Republic

How to Write New Constitutional Histories? The Casebook of Everyday Life

Published online by Cambridge University Press:  09 March 2021

Rohit DE
Rohit DE*
Affiliation:
Yale Law School, USA rohit.de@yale.edu
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Extract

I am grateful to Professor Mathew John for his deep and rigorous engagement with A People's Constitution: The Everyday Life of Law in the Indian Republic, and to the editors of this journal for giving me the opportunity to be in dialogue with some of the questions he raises.

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Type
Review Essay
Information
Asian Journal of Comparative Law , Volume 15 , Issue 2 , December 2020 , pp. 394 - 401
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the National University of Singapore

I am grateful to Professor Mathew John for his deep and rigorous engagement with A People's Constitution: The Everyday Life of Law in the Indian Republic, and to the editors of this journal for giving me the opportunity to be in dialogue with some of the questions he raises.

A People's Constitution examines the ways in which the Constitution of India 1950 (hereinafter ‘the Constitution’) came alive in the popular imagination almost immediately after its promulgation, so that ordinary people took meaning from its existence, took recourse to it, and argued with it. By focusing on the citizens’ use of constitutional remedies against new state regulations seeking to transform both society and economy, the book shows how laws and policies were renegotiated from below using the state's own procedures.

Firstly, the book demonstrates that the Constitution, despite being a document largely written by political elites in a language that was spoken by a miniscule percentage of citizens, came to structure everyday life. Secondly, it highlights that large numbers of ordinary Indians, often belonging to minorities and marginalized groups, actively engaged in this process, and that a significant number of these constitutional encounters were produced through the new state's attempts to regulate networks of production and consumption.

In his review, John engages critically with the deployment of two of the three concepts highlighted in the title, ‘the people’ and ‘the procedural constitution’. In this essay, I argue that these two need to be understood through the lens of the third concept, that of the ‘everyday life of the law’, which requires a rethinking of how we understand constitutional histories.

A People's Constitution uncovers the deepening reach of the Constitution in the 1950s by focusing on four sets of constitutional encounters arising out of the new state's attempts to transform some aspect of everyday life, be it dietary practices or sexual behaviour. John asks, to what extent are these encounters representative of ‘the people’ who were laying claim to the new Constitution? Are they statistically representative of the people making constitutional claims? Are they ‘exemplars’ of marginal or subaltern groups? Or does their very ability to be adept at using the law to interrupt state policy render them non-marginal? To paraphrase Gayatri Spivak's famous formulation, if a subaltern can speak (and be heard), do they cease to be a subaltern?Footnote 1

John's second set of questions centre on whether constitutional engagement is by itself remarkable. He argues that it is only to be expected that enterprising individuals or groups would always make use of available institutional options when their rights are abridged by elite interests. This set of questions rests on the assumption that social structures and behavior are universalizable across time, geographies, and social contexts, and that once this is modelled, it can be used to explain situations around the world. John searches for a theory that is generalizable, but instead finds a ‘historian's caution for grand arguments that fly in the face of the archive’.

How can the ‘care and attention lavished to ethnographic detail’ offer conceptual tools to understand constitutional transformations? This requires paying attention to how people use or do not use the constitution, rather than making idealized assumptions about behaviour and noting deviations. Doing so requires us not to expect that enterprising individuals or groups always make use of available options, but instead to observe what groups or individuals do when their rights are abridged. How do they see their rights? How do they understand the institutional options? How would we understand ‘enterprising’ in the given context? Why are some groups more ‘enterprising’ than others? At first glance, the challenge by women engaged in sex work against the anti-trafficking laws on the grounds that it violated their right to engage in a trade or profession seems to be an obvious legal argument. Yet, as A People's Constitution notes, these arguments were only made in court by sex workers in countries with a much longer history of judicial review and greater literacy several decades after they were made in India. Also, while women described as prostitutes appeared before the courts in colonial India, their claims had not been framed around the ‘right to work’.Footnote 2 Why did a specific language of constitutional rights get employed by a particular group at the moment of constitutional transformation? What does it mean for sex workers to continue to make the argument in the streets and against the state, even after the Supreme Court explicitly held that the right to trade and profession did not extend to sex work?Footnote 3 As I hope to show in the next section, getting to these questions requires us to think outside the canonical approaches to understanding constitutional law, and to pay attention to everyday life.

I. RETHINKING CONSTITUTIONAL HISTORY: THE CASEBOOK OF EVERYDAY LIFE

Constitutional law in the common law world is taught and understood through a set of canonical cases and debates. Constitutional histories are largely understood as an arena of high politics, and the business of legislators, ministers, and judges. Unsurprisingly therefore, the leading histories of the Supreme Court of India have been dominated by the politically high-profile clashes between the judiciary and the executive,Footnote 4 or around central political questions like land reforms and free speech.Footnote 5 Constitutions are imagined to be mainly about dramatic questions of high politics, not quotidian events like tram ticket prices and vegetable vending licenses. Indeed, this is perhaps what prompts John to ask about the omission of canonical civil liberty cases ‘involving subaltern citizens’, like AK Gopalan v Union of India.Footnote 6

The omission, as A People's Constitution explains, is deliberate (though I have explored how the Constitution transforms the field of political civil liberties elsewhere).Footnote 7 As Kim Lane Scheppele describes, the goal of a ‘constitutional ethnography’ is to ‘better understand how constitutional systems operate by identifying the mechanisms through which governance is accomplished and the strategies through which governance is attempted, experienced, resisted and revised, taken in their historical depth and cultural context’.Footnote 8 Thinking about constitutional law and everyday life would require looking beyond spectacular political cases involving politicians like Gopalan. Rather than work with existing categories through which constitutional law is understood, such as ‘free speech’ or ‘freedom of religion’, I chose to look at the emergence of the postcolonial regulatory state through its efforts to transform economic and social life.Footnote 9 The Constitution was not merely a charter of freedoms from the state or an organizational map of power, but it sought explicitly to empower the state to address social justice and economic equality. A People's Constitution argues that it is these goals that often shaped the wording of fundamental rights and the nature of Indian federalism.Footnote 10 Sunil Khilnani observed that the postcolonial state ‘was enlarged, its ambitions inflated, and it was transformed from a distant alien object into one that aspired to infiltrate the everyday lives of Indians, proclaiming itself responsible for everything they could desire, jobs, ration cards, educational places, security, cultural recognition’.Footnote 11 New instrumentalities were created to plan, review, and monitor these programs, and thousands of new laws were enacted by all levels of government, a majority of them dealing with social and economic regulation – in contrast to less than five percent of colonial legislation which dealt with the same subject matter.Footnote 12

Thus, the ‘people’ who become visible in the book emerge from the archive. As John suggests, it is worth asking what they represent, and who is absent. As A People's Constitution indicates, the clusters of litigants discussed in detail were a few of many who challenged the idea of the court being solely the domain of the wealthy and dominant groups.Footnote 13 I echo John's call for more quantitative-based studies of litigation; while underlying the difficulties in doing so, given the poor record-keeping by courts, and the fact that unreported or dismissed cases are almost impossible to trace.Footnote 14

I take John's invitation to explain what is meant by the ‘people’, when these Parsi journalists or Marwari traders have greater wealth and status than, say, the Muslim prostitutes and vegetable vendors, who are closer to what John identifies as subaltern. I argue that ‘marginality’ cannot be reduced merely to class status, but instead has to be understood with specific reference to the conditions of setting up a republic where claims are tied to electoral representation. Thus, the petitioners are indeed ‘electoral minorities’ who find little space in party manifestos or public consciousness, and who belong to groups that are vilified in public discourse.Footnote 15 These groups which had advanced rights claims, rooted in property or customary rights, in the time of colonial India found their options limited after independence. Constitutional law allowed them a mechanism to frame their particular concerns as a general problem. As groups with livelihoods and security at stake, they made adept at using the legal mechanisms, thereby building precedents and pathways for rights which could be used by other petitioners in the future.Footnote 16 As John notes, no constitution can work without some elite who exercise power in the name of the ‘people’. However, what I show is that the Constitution allows for certain marginal groups to reclaim the framework of the ‘people’ from the state in unexpected ways.Footnote 17

This is not to suggest that all marginal groups could engage equally with the Constitution. In a largely agrarian country, peasants and landless labourers are massively underrepresented outside of land law litigation.Footnote 18 That said, the state's presence in rural areas was limited in the 1950s and 1960s, and peasant-based electoral mobilization became a key method for political engagement. As other scholars are beginning to show, the field of constitutional engagement deepened over time to include tribals, Dalits, women, and Muslim backward caste groups.Footnote 19

II. HOW TO READ A CONSTITUTIONAL CASE HISTORICALLY?

Much of the scholarship on constitutional law is written for the lawyers and judges who practice it. Thus, the emphasis is on distilling doctrine, leading to an emphasis on the Supreme Court, bench composition and strengths, and building a linear narrative of precedents by highlighting victories and erasing losses. The focus on judgments erases competing narratives, contingent arguments, and other visions of constitutional order, but also primarily focuses on the identity and ideology of the judge over those of the litigant. Unsurprisingly, the key debates in Indian constitutional law have focused on the role of a judge in a democracy.Footnote 20 Even critical scholarship which engages with social and political forces seeks to explain constitutional patterns through the composition and predilections of judges as a class or as individuals.Footnote 21

A People's Constitution argues that to understand how constitutional law works in India, it is necessary to understand what people (whether they are legal officials or ordinary citizens) believe law is, and what they do with this knowledge as they make decisions in their daily lives. While it is tempting to ask ‘who won the case?’, this is reductive and often unhelpful in explaining people's repeated engagement with law.Footnote 22

It is helpful to return to John's discussion of the Qureshi judgment that forms the basis of chapter 3 in A People's Constitution. The Qureshi case, which challenged a series of cow slaughter bans, is perhaps the best known of all the decisions discussed in the book and was, at its time, the longest decision of the Supreme Court. However, the fact that it was a class action case brought by over 3000 petitioners was rendered invisible. As A People's Constitution shows, this strategy ‘was made possible’ because the question of cow slaughter directly affected the livelihood and economic wellbeing of the Qureshi community of hereditary butchers, and it was not purely a question of religious expression or cultural identity for many elite Muslims. Thus, while elite Muslim political leaders signed on to the cow slaughter bans in north India in a brokered compromise, the Qureshis had no such luxury. Their legal strategy evolved after much experimentation before the district courts and trial courts, where they failed to get remedies because their petitions were not deemed representative enough.Footnote 23 The fact that the Qureshis were a well-networked caste and professional group gave them the resources to draft such a petition.

As we can see, the reappearance of three thousand invisible butchers is not a mere novel fact. It requires us to pay serious attention to why they went to court and what they sought as a remedy. The Supreme Court upheld the validity of the cow slaughter bans in general, provided they were not ‘absolute bans’ applicable to all cattle. It provided a narrow form of relief to the Qureshis by holding that a ban on the slaughter of older and unproductive cattle would be unconstitutional, as it violated the constitutional language that required the ban to be in the economic interest. Given that the bulk of Indian beef came from older or uneconomical dairy animals, rather than cattle bred specifically for beef, this protected the immediate business interests of the petitioners. John echoes much of the existing commentary on the case by suggesting that we should not make too much of this legal victory, noting that the Qureshi butchers could only ply their trade with the threat of interference by state officials.Footnote 24

While I share the critique of the majoritarian reasoning adopted by the judges, which does not make for a liberal or transformative narrative of the Constitution, I would like to pay greater attention to what the parties, who had real stakes in the outcome, made of it. We know that the cow protectionists who had pushed for the ban were incensed with the judgment and circulated several critiques of it.Footnote 25 We also have evidence that the Qureshis repeatedly returned to court for recourse, either when state legislatures tried to evade the prohibition on an absolute ban by fixing an artificial age limit,Footnote 26 or in order to defeat attempts at prosecution when caught with beef. Attempts by the cow protectionists to secure an absolute ban through elections, popular protests, hunger strikes, demonstrations, and violence proved unsuccessful.Footnote 27 The absolute ban was only held constitutionally permissible in 2005 when, after three decades of unsuccessful litigation, the cow protectionists were able to convince the Supreme Court that the cow remained economically valuable for the entirety of its life.Footnote 28 Thus, both the Qureshis and the cow protectionists had to finally mobilize the economic logic behind cow protection to secure their ends. Both the Supreme Court judgments in 1958 and 2005 also underline the structural limitations of constitutional processes in engaging with questions of substantive evidence such as the economic value of cattle.

A People's Constitution does not set out to prove that the Constitution was emancipatory or repressive, but instead to show how it provided a language and a set of processes through which the citizen could communicate with the state and require it to respond. At a time when hundreds of thousands of Indians from all walks of life, particularly minorities and women, are stepping onto the streets, leading mass readings of the preamble and demanding that the Constitution be protected in the face of executive aggrandizement and judicial abdication, it is important to understand the genealogies through which this became possible.Footnote 29 Why does the Constitution, despite its limited framework of rights, the lack of compliance by the state, and the often conservative interpretations by the judiciary, continue to exercise rhetorical power and to shape people's imagination and ethics? The answers cannot be explained merely by the older canons of political theory and doctrinaire analysis, but instead require new non-linear histories and sited ethnographies.

References

1. Spivak, Gayatri Chakravorty, ‘Can the subaltern speak?’, in Morris, Rosalind C (ed), Can the Subaltern Speak? Reflections on the History of an Idea (Columbia University Press 2010) 21–78Google Scholar.

2. De, Rohit, A People's Constitution: The Everyday Life of Law in the Indian Republic (Princeton University Press 2018) 182–209Google Scholar (‘A People's Constitution’).

3. State of Uttar Pradesh v Kaushalya Devi AIR 1964 SC 416.

4. Austin, Granville, Working a Democratic Constitution: A History of the Indian Experience (Oxford University Press 1999) 771Google Scholar; Dhavan, Rajeev, The Supreme Court of India: A Socio-Legal Critique of its Juristic Techniques (NM Tripathi 1977)Google Scholar.

5. Krishnaswamy, Sudhir, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press 2009)Google Scholar.

6. AIR 1950 SC 27. Given John's understanding of a subaltern as a demographic category, it is unclear whether AK Gopalan, a high caste Nambiar who would go on to be a five-term MP, would qualify as a subaltern citizen.

7. De, Rohit, ‘Rebellion, dacoity, and equality: the emergence of the constitutional field in postcolonial India’ (2014) 34 Comparative Studies of South Asia, Africa and the Middle East 260CrossRefGoogle Scholar. The key petitions included those by a working-class Muslim and a lower caste Hindu who had been arrested and tried by a Special Court for participating in communist violence.

8. Scheppele, Kim Lane, ‘Constitutional Ethnography: An Introduction’ (2004) 38 Law and Society Review 389, 390–391CrossRefGoogle Scholar.

9. On free speech, see Bhatia, Gautam, Offend, shock, or disturb: Free speech under the Indian Constitution (Oxford University Press 2016)CrossRefGoogle Scholar; Chandrachud, Abhinav, The Republic of Rhetoric: Free Speech and the Constitution of India (Penguin 2017)Google Scholar; Dhawan, Rajeev, Publish and Be Damned! Censorship and Intolerance in India (Tulika Books 2008)Google Scholar. On religion, see Sen, Ronojoy, Articles of Faith: Religion, Secularism and the Indian Supreme Court (Oxford University Press 2010)CrossRefGoogle Scholar; Kapur, Ratna & Crossman, Brenda, Secularism's Last Sigh: Hindutva and the (Mis)Rule of Law (Oxford University Press 1999)Google Scholar; Ahmed, Farrah, Religious Freedom under the Personal Law System (Oxford University Press 2016)Google Scholar.

10. A number of recent works follow Uday Mehta's early observation of the centrality of the social question in the Constitution of India. See Uday Singh Mehta, ‘The Social Question and the Absolutism of Politics’ (Presentation at ‘We the People: A Symposium on the Constitution of India After 60 Years, 1950–2010’) (Nov 2010) <https://www.india-seminar.com/2010/615/615_uday_s_mehta.htm> accessed 6 Dec 2020; Ramnath, Kalyani, ‘We the People: Seamless Webs and Social Revolution in the Indian Constituent Assembly Debates’ (2012) 32 South Asia Research 57CrossRefGoogle Scholar; Khosla, Madhav, India's Founding Moment: The Constitution of a Most Surprising Democracy (Harvard University Press 2020)Google Scholar; Sandipto Dasgupta, Legalizing the Revolution: Decolonization and Constitutionalism in the Twentieth Century (Cambridge University Press, forthcoming).

11. Khilnani, Sunil, The Idea of India (Farrar, Straus and Giroux 1999) 41Google Scholar.

12. Massey, IP, Administrative Law (7th ed, Eastern Book Co 2008) 14Google Scholar. See also A People's Constitution (n 2) 23.

13. Other groups mentioned in the book include refugees, Muslims facing deportation orders, school children, petty government servants, vegetable vendors, sweepers, milkmen, and linguistic minorities. I discuss some of these in the following works: De, Rohit, ‘A Republic of Petty Bureaucrats: Upendra Baxi and the Pathologies of Civil Service Jurisprudence’ (2018) 9 Jindal Global Law Review 335CrossRefGoogle Scholar; De, Rohit, ‘Taming the Custodian: Rethinking the Archive of Evacuee Property’, in Prakash, Gyan, Laffan, Michael & Menon, Nikhil (eds), The postcolonial moment in South and Southeast Asia (Bloomsbury 2018) 87–110Google Scholar.

14. A People's Constitution relies on published quantitative work on the period, including Gadbois, George H Jr, ‘Indian Judicial Behavior’ (1970) 5 Economic and Political Weekly 147Google Scholar; Gadbois, George H Jr, ‘The Supreme Court of India: A Preliminary Report of an Empirical Study’ (1970) 4 Journal of Constitutional and Parliamentary Studies 33Google Scholar; Dhawan, Rajeev, The Supreme Court of India: A Socio-legal Critique of Its Juristic Techniques (NM Tripathi 1977)Google Scholar.

15. I discuss this in greater detail in my response to Namita Wahi: Gautam Bhatia, ‘ICLP Book Discussion: Rohit De's “A People's Constitution” – VI: The Author Responds’ (Indian Constitutional Law and Philosophy, 17 Jan 2019) <https://indconlawphil.wordpress.com/2019/01/17/iclp-book-discussion-rohit-des-a-peoples-constitution-vi-the-author-responds/> accessed 18 Dec 2020.

16. For more on pathways of rights, see Baxi, Upendra, ‘Introduction’, in Jois, M Rama (ed), Services under the State (NM Tripathi 1987)Google Scholar.

17. There have been other recent attempts to rethink the canon of constitutional law: see Thiruvengadam, Arun Kumar, The Constitution of India: A Contextual Analysis (Bloomsbury 2019)Google Scholar; Bhatia, Gautam, A Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins Publishers 2019)Google Scholar; Kannabiran, Kalpana, Tools of Justice: Non Discrimination and the Indian Constitution (Routledge 2012)Google Scholar.

18. A People's Constitution also does not focus on land law litigation, which has made up the bulk of litigation in India since the late 18th century and has been the subject of considerable scholarship. It focuses instead on the aspects of the administrative state as it entered new areas of regulation. On land law litigation in the 1950s, see Merillat, HCL, Land and the Constitution in India (Columbia University Press 1970)Google Scholar; Namita Wahi, The Right to Property and Economic Development in India (PhD dissertation, Harvard University 2014).

19. On Dalit constitutionalism, see Kannabiran, Kalpana. ‘A cartography of resistance: The National Federation of Dalit Women’, in Yuval-Davis, Nira, Kannabiran, Kalpana & Vieten, Ulrike (eds), The Situated Politics of Belonging (Sage Publications 2006) 54–74Google Scholar; Yengde, Suraj, Caste Matters (Penguin Books 2019)Google Scholar. On tribals, see Vaidya, Anand, ‘Word Traps and the Drafting of the Indian Forest Rights Act’, in Chandra, Uday & Taghioff, Daniel (eds), Staking Claims: The Politics of Social Movements in Contemporary Rural India (Oxford University Press 2018) 292–316Google Scholar; Priya Ranjan Sahu, ‘The Constitution Set in Stone: Adivasis in Jharkhand are Using An Old Tradition as a Novel Protest’ (Scroll, 14 May 2018) <https://scroll.in/article/878468/the-constitution-set-in> accessed 6 Dec 2020; Nandini Sundar, ‘Pathalgadi is Nothing But Constitutional Messianism, So Why is the BJP Afraid of It’ (The Wire, 15 May 2018) <https://thewire.in/rights/pathalgadi-is-nothing-but-constitutional-messianism-so-why-is-the-bjp-afraid-of-it> accessed 6 Dec 2020. On women, see Kapur, Ratna & Crossman, Brenda, Subversive Sites: Feminist Engagements with the Law in India (Sage Publications 1996)Google Scholar; Kirmani, Nida, ‘Claiming their Space: Muslim Women-led Networks and The Women's Movement in India’ (2009) 11 Journal of International Women's Studies 72Google Scholar. On Muslim groups, see Bhat, Mohsin Alam, Conflict, Integration and Constitutional Culture: Affirmative Action and Muslims in India (JSD dissertation, Yale Law School 2017)Google Scholar.

20. Sathe, SP, Judicial Activism in India (Oxford University Press 2002)Google Scholar; Baxi, Upendra, Courage, Craft and Contention: The Indian Supreme Court in the Eighties (NM Tripathi 1986)Google Scholar.

21. Bhuwania, Anuj, Courting the People: Public Interest Litigation in Post-Emergency India (Cambridge University Press 2016)CrossRefGoogle Scholar; Suresh, Mayur & Narrain, Siddharth (eds), The Shifting Scales of Justice: The Indian Supreme Court in Neo-Liberal India (Orient Blackswan 2014)Google Scholar.

22. De, A People's Constitution, 21.

23. De, A People's Constitution, 141. In dismissing a suit brought by some butchers over the cancellation of municipal licenses as non-representative, the Allahabad High Court examined witnesses and came to the conclusion that there were as many as three hundred families of butchers in Allahabad, stating that it saw ‘no insuperable difficulty in each of the 300 bringing separate suits for damages if the bylaws are found ultra vires’: Haji Ahmad Raza and Others v Municipal Board, Allahabad, AIR 1952 All 711.

24. Baxi, Upendra, ‘“The little done, the vast undone” – Some Reflections on Reading Granville Austin's The Indian Constitution’ (1967) 9 Journal of the Indian Law Institute 348Google Scholar; Chigateri, Shraddha, ‘Negotiating the Sacred Cow: Cow Slaughter and the Regulation of Difference in India’, in Mookherjee, Monica (ed), Democracy, Religious Pluralism and the Liberal Dilemma of Accommodation (Springer 2011) 137–159Google Scholar; Khurshid, Salman, At Home in India: A Restatement of Indian Muslims (Vikas Publishing House 1986)Google Scholar.

25. Lala Hardev Sahai, ‘Sarvocha Nyayalaya ka nirnay godhan ko katal se naheen bacha sakta: Pashu visheshagyon ka safal shadyantra [Supreme Court Decision could not save cows from slaughter: Animal expert's conspiracy successful]’, Purushottam Das Tandon Papers, File 277 (National Archives of India).

26. Writ Petitions No 15 of 1959, No 14 of 1960, and No 21 of 1959 (Supreme Court of India). The court held that fixing the age of slaughter at 25, when an average cow lived until 15, was a mala fide attempt to evade the prohibition on absolute bans.

27. De, Rohit, ‘Cows and Constitutionalism’ (2019) 53 Modern Asian Studies 240, 274CrossRefGoogle Scholar.

28. State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat 2005 8 SCC 534.

29. Rohit De & Surabhi Ranganathan, ‘We are Witnessing the Rediscovery of India's Republic’ New York Times (27 Dec 2019) <https://www.nytimes.com/2019/12/27/opinion/india-constitution-protests.html> accessed 18 Dec 2020.