Practicing Constitutionalism from the Margins
A review of Rohit De’s A People’s Constitution
The citizen seeking justice through the courts is all too often absent from constitutional scholarship. Rarely does she make it to the pages of constitutional history, let alone play a central part. Rohit De’s enthralling book on the Indian Constitution brings an understudied puzzle to the fore, namely, how did “a document with alien antecedents that was a product of elite consensus, became part of the experience of ordinary Indians in the first decade sof independence.”? In standard political economy treatments, constitutions are the province of elites, who have much at stake in shaping the rules of the game, property rights being the readiest example (North and Weingast 1989). Calling attention to the “constitutional encounters between citizens and the postcolonial state,” De reminds us that the rules of the game are not merely enacted from above, but reenacted from below, through the everyday practices of citizenship.
A People’s Constitution does more than challenge elite-centered constitutionalism, though that is a worthy task in itself. Based on a social history of the Indian Constitution, it interrogates citizen-state relations during the initial years of independence, the pivotal Nehruvian period of state-building, economic planning and regulation. How ordinary citizens saw the state and negotiated public institutions over these years is a vital, but underexplored avenue of research. The book draws on a rich array of historical sources: news and film items, archives and court records, including hitherto untouched archives containing all of the case proceedings, which De consulted in “a dusty basement in the Supreme Court.” The historical evidence reveals just how busy the Supreme Court was in the republic’s first 12 years. From 1950-1962, the Indian Supreme Court heard 3,833 writ petitions. In the same period, the US Supreme Court heard roughly a quarter of that number, 962 cases.
Beneath the sheer number of writ petitions, one learns about the people whose lives were affected by the state. A People’s Constitution is organized around four constitutional cases. The litigants belong to very different social strata, but they all challenged the state’s intrusions into their daily activities. The cases cover a range of regulatory subjects, from prostitution and the sale of alcohol, to cow slaughter and the transport of cotton. Written with an ethnographic pen, the cases are fascinating and each one offers rich insights into Indian history and judicial practice. In this review, I do not perform a legal reading of the cases. Instead, I focus on the social histories contained in the four empirical chapters and the court’s role in binding citizens to the state. Putting people at the center of Indian constitutionalism can, it turns out, teach us a great deal about citizen-state relations in a young democracy.
Turning to one of the cases, De takes us to Kanpur, where the Baglas, a family of Marwari small traders, were arrested and charged under the Essential Commodities Act. Their crime was transporting 493 pounds of cotton by train without the requisite permit. How India’s large business houses gamed the license-permit-quota system and used regulatory red tape to their advantage is fairly well-studied terrain (Chibber 2003). Less is known about how small traders, such as the Baglas, were affected by and reacted to the License Raj. The chapter describes how the Baglas challenged commodity controls in court, disputing the discretionary authority of bureaucrats in charge of regulating textiles. In the absence of policy guidelines, their lawyer argued, unfettered bureaucratic authority created the risk of arbitrary decisions.
As De notes, constitutional analyses often end with the court’s decision, and for the Baglas, the decision was only a partial victory. However, the Bagla case produced ripple effects, spawning subsequent petitions by other small trader communities. In so doing, it set the stage for Indian administrative law to take form, curtailing bureaucratic discretion and arbitrariness. The case also reveals a crafty legal strategy of appealing to procedural law to foment judicial action, at a time when the courts were reticent to decide on the basis of legal substance. Whether or not the litigant won, the court’s decisions triggered new strategies and political action by marginalized groups. The cascading effects of constitutionalism resonates with the political science literature on feedback effects, which calls attention to the downstream political impact of the law (Pierson 1993, Mettler 2002).
Another chapter deals with the 1957 Supreme Court decision on the constitutionality of cow slaughter. After the enactment of provincial laws banning cow slaughter, the Qureshis, a Muslim caste of butchers, found their economic livelihoods at risk. The chapter traces the history of the cow’s journey into the Indian Constitution, unpacking the strategies used by cow protection activists to secure an absolute ban on cow slaughter. A contribution in its own right, the chapter’s historical narrative also situates the countervailing strategies that the Qureshis adopted when they later approached the court. Based on their prior experience with litigation, the Qureshis had learned that “they had to show that they were affected as a class and not just as individuals, and piecemeal litigation took too much time and caused uncertainty.”
The Qureshi case may have been one of postcolonial India’s first class action cases. It drew more than 3,000 petitioners (mostly Muslim men), belonging to a hundred-odd villages and towns that stretched from Bombay to Bihar. The number of petitioners involved has eluded prior readings of the Qureshi case, since like the Baglas, the Qureshis did not win their case. The Supreme Court upheld the constitutionality of a cow slaughter ban, deciding that the ban did not violate the freedom of religion or the right to a trade or profession. However, the court also ruled that the ban could not be absolute, allowing some categories of cattle (e.g. aged or unproductive cows) to be slaughtered. The cow protection activists had for many years advocated for an absolute ban based on the cow’s economic contribution to society. In a brilliant legal strategy, the Qureshis turned this argument on its head, demonstrating that an outright ban was unreasonable and not in the public interests, since, as per the government’s own circulars, “even productive cattle gradually deteriorate and cease to be productive.” If the Qureshis failed to secure a victory for themselves—news outlets at the time framed the decision as a win for cow protection forces—they nonetheless scored a win for economic reasoning.
The remaining two cases in the book are equally significant. One concerns the 1951 arrest of a government servant who was booked under the Bombay Prohibition Act. The chapter examines how citizens, through a mixture of litigation and taking to the streets, chipped away at state coercion. The other case was that of Husna Bai, a 24-year-old Muslim woman who was engaged in prostitution. Husna Bai challenged the validity of the 1956 Suppression of Immoral Trafficking Act (SITA). Although she lost the case on technical grounds, Chief Justice Sahai of the Supreme Court determined that some elements of SITA were unconstitutional. Newspaper headlines declared the validity of SITA and registered a defeat for Husna Bai. Nevertheless, the decision took on a life of its own, setting the stage for subsequent cases that enhanced protections for prostitutes. For example, the High Court in Allahabad later ruled that SITA did not violate a prostitute’s right to a profession, but it also found that district magistrates could not wield unchecked discretion to expel prostitutes or restrict their free movement.
A People’s Constitution is a work of social history whose insights extend to the study of politics. In particular, the book’s discussion of social identity and interest-based claims inspires deeper thinking on how the two relate. De observes that, while the litigants before the court relied on their identity groups and networks, their legal claims were largely interest-based. Framing arguments in terms of collective economic interests gave the litigants a greater chance in courts, but doing so also expanded the range of potential allies in society. Strikingly, the petitioners in the cow slaughter case, “were not invested in basing their argument on freedom of religion.” Instead, they “identified themselves by their individual trades and also demonstrated a range of economic uses of the cow.” In the study of Indian politics, identity (especially caste and religion) is a typically starting point for analysis. Without discounting the importance of identity, De’s research suggests that citizens have other claim-making repertoires available to them. Along similar lines, Ahuja and Chhibber show that the poor view their participation in elections not simply as a way to secure material benefits, but as a way to demand their rights before the state. A People’s Constitution can also be read alongside Heller’s (1999, 2000) work on labor, civil society and state development in Kerala, where class-based interests united rural and urban laborers into a political force, aiding the growth of more inclusive civic spaces. Closer to the heart of the cow slaughter case, Varshney’s (2001) research on Hindu-Muslim riots in India suggests that inter-communal ties built on economic interests creates the incentive for religious groups to maintain communal peace. When and how the courts help promote shared interests and rights-based claims by citizens is a fruitful avenue of inquiry.
The book's overarching thesis, that the Indian Constitution triggered a change in how citizens related to the state, also merits consideration from students of Indian politics. Given the widespread poverty, hunger and illiteracy in the Nehru years, the assertion that constitutional debates were high on the minds of ordinary citizens is questionable. There is evidence that some groups engaged the courts, such as the number of writ petitions. But it is difficult to surmise the counterfactual: how many writ petitions might have been filed but were not attempted? How many cases never made it through the local courts, where far more citizens are likely to seek justice? The writ petitions we learn about are precisely the ones that are written. To what extent the constitution truly penetrated the countryside and small towns is therefore debatable. Moreover, the idea that a culture of constitutionalism took root in India sits uneasily beside the reality of its large informal economy (Harriss-White 2003). Most Indians work in the shadow of the law, where they have little recourse to policy safeguards. To fully apprehend the constitution’s reach, future research will need to look beyond the Supreme Court and consider how citizens seek justice at the local level, through district courts, local prosecutors and the police.
De's analysis generates new questions for political scientists as well. The growing literature on citizen-state relations in India has tended to overlook the courts. This rich body of work, while conscious of the significance of constitutional-legal rights, focuses largely on citizen interactions with electoral bodies (e.g. panchayats) and their representatives, political fixers and intermediaries, as well as the bureaucracy (Corbridge et al. 2005, Jha, Rao, and Woolcock 2007, Kruks-Wisner 2017). A People’s Constitution raises questions for this line of work. Why, for example, do citizens seek the courts sometimes instead of the bureaucracy, brokers, or elected officials? The book asserts that “minorities that were unable to succeed electorally increasingly turned to the courts.” That may be true, but the claim begs for empirical testing. Further, what are the sociopolitical conditions for effective citizen engagement through the courts? In all four cases, litigants relied on collective action by organized groups in society. These included public sector unions, Qureshi caste and Marwari trader associations, and organizations representing prostitutes, like the Allahabad Dancing Girls Union. These groups assisted litigants, organized other petitioners and at times even took to the streets in protest. As De notes, these organizations disturb Chatterjee's (2006) binary categorization of political and civil society. Collective action in these cases was not a bourgeois affair, but arose organically from below by subaltern groups. It was at once deeply political and civic, rooted in an emergent concept of democratic rights. What political conditions in Nehru’s India supported (or enfeebled) civic constitutionalism from below? How have India’s changing political conditions altered the scope and effectiveness of civic constitutionalism? These are all questions for future research.
Before concluding, a note on the book’s normative orientation bears mentioning. A People’s Constitution celebrates “constitutionalism from the margins.” Its central finding, that ordinary citizens in a newly anointed democracy engaged with the constitution and pursued right-based claims in its highest court, is in many ways remarkable. But the finding also brings the haunting failures of India’s electoral politics, Parliament and bureaucracy to light. Having to go to the highest court to compel state officials to perform their basic duties is hardly a cause for celebration. If the constitution assured citizens of a path to seek their rights, it has not stimulated the development of state capacity and accountability mechanisms to realize those rights in practice. In the case of social rights, such as basic education and health, the courts have provided only temporary solutions to the complex challenges of public service delivery (Shankar and Mehta 2010). This is perhaps rightly so, as judges cannot stand in for Parliamentarians and bureaucrats.
A People’s Constitution offers a serious challenge to the elite-centered moorings of existing research on India’s constitution. By investigating constitutionalism from below, it brings to life the court’s role in shaping everyday democratic practice during the Nehruvian era. Yet, the book’s insights extend beyond this context. De admirably integrates constitutional theory, social history and political analysis. His far-reaching study invites scholars from across disciplines to engage more closely with citizens to make collective sense of the constitution.
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Akshay Mangla is an Associate Professor of International Business at Said Business School, University of Oxford. His research focuses on frontline institutions, state capacity, social welfare and state-society relations in India.
Visit Akshay Mangla’s website here.
Visit Rohit De’s website here.
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