Book Review - “A People’s Constitution - The Everyday Life Of Law In The Indian Republic” By Rohit De
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BOOK REVIEW: “A PEOPLE’S CONSTITUTION: THE
EVERYDAY LIFE OF LAW IN THE INDIAN REPUBLIC” BY ROHIT DE Sowmiya M, School of Excellence in Law, Tamil Nadu Dr. Ambedkar Law University Bakiya Lakshmi. M, School of Excellence in Law, Tamil Nadu Dr. Ambedkar Law University Kavinila.P, School of Excellence in Law, Tamil Nadu Dr. Ambedkar Law University
ISBN 978-0-691-17443-3
INTRODUCTION
This remarkable book by Rohit De emerges from the convergence of two pivotal elements in Indian constitutional practice. Firstly, it delves into the framework of the republic established postindependence, designed as a tool for effecting socio-political transformation, endowing the state with extensive authority over societal, economic, and cultural realms. Secondly, it explores a state structure crafted to delineate and balance institutional powers, safeguarding individual liberties to curb the potential abuse of authority. As De elucidates, the book unfolds as a dynamic interplay between the Indian Constitution perceived both as the "politics of state desire" and as the platform for "articulating insurgent orders of expectations from the state. " This conceptual framework illuminates the tensions inherent in Indian constitutional practice.
Within this context, De employs a series of meticulous ethnographies to spotlight the endeavors of citizens in defending rights and freedoms, thereby contributing to the enrichment of constitutional ethos during the nascent years of Indian independence. ABOUT THE AUTHOR Rohit De is a distinguished scholar and historian renowned for his expertise in Indian constitutional law and legal history. With a profound commitment to understanding the complexities of law and society, Gupta has established himself as a leading authority in the field through his extensive research, publications, and academic contributions.
Rohit’s academic journey is marked by a rich tapestry of experiences and achievements. He holds advanced degrees in law and history from prestigious institutions, where he honed his analytical skills and deepened his understanding of the intricate connections between law, politics, and social change. Throughout his career, he has demonstrated a remarkable ability to bridge the gap between theory and practice, exploring the ways in which legal principles shape the lived experiences of individuals and communities in India. His scholarship is characterized by a rigorous interdisciplinary approach, drawing on insights from history, political science, sociology, and legal theory to illuminate the multifaceted dimensions of law in society. In addition to his scholarly pursuits, he is also deeply committed to promoting social justice and human rights.
He has been actively involved in advocacy efforts aimed at advancing the cause of legal empowerment, access to justice, and equality under the law for all members of society. "The People's Constitution: The Everyday Life of Law in the Indian Republic" is a testament to rohith’s intellectual prowess and his unwavering dedication to advancing our understanding of law as a dynamic force that shapes the contours of Indian society. Through his insightful analysis and engaging narrative style, Rohith de invites readers to critically engage with the complexities of India's legal landscape and to contemplate the transformative potential of law in fostering a more just and inclusive society.
OVERVIEW OF THE BOOK PEOPLES CONSTITUTION De's concept of the 'People's Constitution' emerges as a response to two prevailing conceptual frameworks that emerged in 1950, coinciding with the adoption of the new Constitution of India. The first perspective highlights the novelty of the transformative agenda envisaged by the Constitution for the Indian populace. Conversely, the second viewpoint underscores the largely uninterrupted continuity of the colonial state and its apparatus, including the police, army, judiciary, and district administration, which were seamlessly integrated into the new republic.
Refusing to align with either the celebratory or pessimistic viewpoints espoused by these contrasting narratives, De adopts a methodological approach focused on examining how ordinary individuals enthusiastically embraced the practices outlined in the new constitution to defend their rights. In doing so, the book aims to illustrate the emergence of the 'People's Constitution,' which reshaped the fabric of everyday life in the nascent republic. In terms of constitutional structure, the safeguarding of fundamental rights was facilitated by provisions ensuring access to the higher judiciary, which held the authority to issue writs and other remedies addressing rights violations or state power abuses.
This access to courts gave rise to a 'republic of writs,' marked by a significant increase in citizens petitioning courts, forming the core focus of De's exploration into the 'People's Constitution. ' But how does a judiciary increasingly open to citizens contribute to the realization of the 'People's Constitution'? De's quest for answers meanders, as he refrains from providing a definitive response. Arguably, the book's most compelling argument for the 'People's Constitution' lies in the vivid narratives of individuals who symbolize the struggles of ordinary people—often minorities— seeking to assert their rights through the legal system.
These include a Parsi journalist challenging excessive prohibition laws, Marwari traders contesting severe trade restrictions, butchers defending their livelihood against cow slaughter prohibitions, and a prostitute challenging restrictions on her trade. These instances exemplify citizens petitioning superior courts to contest state laws potentially infringing on their fundamental rights. However, while De's portrayal of citizen-litigants offers powerful rhetorical examples of legal battles against an overbearing state, there remains ambiguity about how these individuals represent the broader 'people' claiming the promises of the new constitution. If De's intention was solely to equate the 'people' with the individuals whose stories he meticulously documents, then the book could be easily judged as a captivating exploration of the social history behind four unique cases.
However, this interpretation falls short, as De asserts that his narrative aims to offer broader insights into the 'people' who have animated Indian constitutional democracy. Moreover, he characterizes the 'people' in various ways: as a statistical aggregate indicating the court's mass appeal, as marginalized minority voices finding recognition in court, as embodiments of a new constitutional consciousness, and even as a collective concern for upholding the rule of law and due process. While the book may delve into other related conceptualizations of the 'people,' its puzzling reluctance to extend its meticulous attention to detail into conceptual arguments is notable, despite claiming to eschew teleological narratives.
De maintains that his exploration of the 'People's Constitution' is best understood through the intricacies of constitutional encounters between citizens and the state, emphasizing the minutiae of these interactions over grand narratives. While a historian's caution against overarching arguments that exceed the bounds of their archival evidence is understandable, it's crucial to recognize that facts are always situated within conceptual frameworks. In De's case, one of the most compelling frameworks is that of 'the people' in modern politics. Thus, despite De's apparent ambivalence on the matter, it's essential to view this book as a valuable contribution to the social and political theory of Indian constitutional practice, as it consolidates various strands of thought concerning the 'people.
' THE PEOPLE AS A NUMERICAL FORCE One aspect of De's portrayal of the new constitution and its people revolves around the significant increase in the number of individuals appearing before the courts. Taking advantage of lower court fees and the comparatively expedited justice process in writ petitions, the Supreme Court of India entertained over 600 petitions in 1952, a figure that soared to over 3833 by 1962. This stark contrast is highlighted when compared to the United States Supreme Court, which handled only 960 cases during the same twelve-year period. Unlike the U. S. Supreme Court, which primarily deals with issues of constitutional significance, the Indian Supreme Court serves as both an ordinary court of appeals and possesses jurisdiction to hear writ petitions concerning the violation of fundamental rights.
Nonetheless, this comparison underscores the staggering caseload of the Indian Supreme Court and, consequently, the significantly larger number of citizens who could access the court. The expansion of access to the judiciary stands in stark contrast to the colonial era, characterized by severe restrictions on the jurisdiction of major high courts and broad government immunity from prosecution. Consequently, elements of Indian constitutional design enabling citizens to petition the higher judiciary against the government represented a significant structural departure. However, it remains uncertain whether these changes have translated into a 'people's court' in empirical and statistical terms.
While De's work provides qualitative insights into the willingness of superior courts to entertain rights petitions in specific instances, it falls short of drawing broad conclusions regarding the extent to which the higher judiciary has contributed to shaping a 'People's Constitution. ' Nevertheless, the book suggests that increased access and the significant concessions extracted from the government through citizen litigation reflect a growing confidence among ordinary people in the constitutional process. While this proposition is noteworthy, it requires further empirical substantiation, particularly given the recent trend towards a heightened emphasis on empirical analysis in studies examining the court's role in the lives of ordinary citizens.
PEOPLE AS A CONSTITUENT FORCE Another thematic thread concerning the role of the populace in the book revolves around the democratic framework that legitimizes state authority. Here, the "people" are portrayed as the foundational source of state power, acting as the constituent sovereign. It's important to note, however, that De doesn't quite depict the populace as an abstract concept fundamental to modern political power. His methodology, rooted in the social history of specific cases, may not readily accommodate such abstraction. Nevertheless, when he discusses the various groups within his chapters—be they minorities, entities shaping a fresh constitutional identity, or contributors to the establishment of legal frameworks—he's referring to arenas where the identity of the "people" typically unfolds.
These diverse conceptualizations of the populace need to be untangled from each other to explore how they might collectively shape what could be termed a "People's Constitution. " A) PEOPLE AS A SUBALTERN The people as a subaltern group within the context of Indian constitutionalism provides a nuanced understanding of their position and agency within the larger framework of governance. "A People's Constitution" offers valuable insights into this perspective, shedding light on the experiences and struggles of ordinary citizens in navigating and challenging the structures of power. By foregrounding the voices and experiences of marginalized and subaltern groups, the book exposes the dynamics of power and privilege inherent within Indian constitutional practice.
It illustrates how these groups, often overlooked or oppressed by dominant narratives, assert their rights and agency within the legal and political spheres. While "A People's Constitution" provides a compelling account of the subaltern's engagement with the constitutional system, it also invites further exploration and interrogation of the complexities and contradictions inherent within this relationship. It prompts critical reflection on how the constitution both empowers and constrains subaltern agency, and how the struggles of these groups shape the broader trajectory of Indian democracy.
In sum, viewing the people as a subaltern within the context of Indian constitutionalism enriches our understanding of power dynamics and social justice within the legal and political framework, highlighting the importance of centering the experiences and perspectives of marginalized communities in discussions of governance and democracy. In De's work, the "people" are analyzed within the context of subaltern minorities challenging an entrenched elite constitutional culture across his four chapters. Drawing on previous scholarship that portrays the Constitution as a product of elite consensus, De depicts individuals in his case studies as subalterns or minorities actively defending their rights, thus highlighting the depth of Indian constitutionalism. However, framing elitism in terms of dominant and dominated groups within a polity is a complex endeavor, particularly in India.
First, elites are inherent to modern politics and are necessary for the functioning of any constitution, India included. Second, it's natural for enterprising individuals and groups to utilize available institutional avenues when their rights are impeded by elite interests. Given India's constitutional framework, which grants the higher judiciary the role of adjudicating petitions alleging violations of fundamental rights, it's unsurprising that various groups turn to the courts when other branches of government fail to address their grievances. However, there are challenges in identifying the protagonists as representative of subalterns or minorities within Indian constitutionalism. While the suggestion is made that the electorally excluded may constitute the subaltern, it's not automatic that these classes are synonymous with the subaltern.
Without a comprehensive explanation of the term "subaltern" within the book, it's difficult to align it with a broader understanding of the "people. "
Moreover, notable omissions in De's choice of cases, such as landmark civil liberties cases like A K Gopalan v The State of Madras, raise questions about the narrative's completeness. The distinction drawn between the elite and the subaltern seemingly implies that constitutional adjudication under the new constitution signaled a more inclusive conceptualization of the populace. However, the notion of a "new beginning" authored by various groups must be scrutinized to assess its contribution to the emerging constitutional practice in the early years of the Indian constitutional republic. B) NEW CONSTITUTION FOR A FREE PEOPLE Mohd Hanif Qureshi v The State of Bihar, which forms the focal point of De's third chapter, vividly illustrates the unique avenues of constitutional practice facilitated by the Indian Constitution.
In this case, over 3000 butchers from various regions of the country petitioned the Supreme Court regarding legislation on the slaughter of cows enacted by several provinces shortly after independence. The butchers argued that these statutes violated their fundamental rights. These laws were enacted to advance the directive principle in Article 48 of the Constitution, which aimed to eventually prohibit the slaughter of various types of cattle. Opposing these statutes on grounds such as the violation of fundamental rights to equality, employment, and religious freedom, the butchers' petition led to the emergence of what De terms a "new bovine order. " Cow slaughter has long been a contentious issue in India, particularly among certain Hindu communities who consider the cow sacred, juxtaposed with others, across different faiths and social strata, who consume bovine meats.
With independence, cow protectionists gained significant electoral power and advocated for changes in the regulation of bovine slaughter. The existing approach to slaughter was sensitive to customary practices, religious rights, and individual property rights. However, the cow slaughter legislation sought to alter this regime, balancing it against the secular nature of the state and individual freedoms protected by the Constitution. De highlights how the butchers navigated the threat of cow slaughter legislation to their fundamental rights, particularly their livelihoods, as a novel form of constitutional struggle. In the new republic, state-imposed restrictions on cattle slaughter were justified by the importance of cattle to India's predominantly agricultural economy.
Conversely, those involved in the cattle slaughter trade defended it on the grounds of livelihood, employment, and religious freedom.
This marked a significant shift from the colonial era, where the grounds for organizing cattle slaughter were different. Ultimately, the court upheld the constitutional validity of these slaughter prohibition laws, reflecting the changing legal justifications by emphasizing the economic utility of cows to the agrarian economy. Mohd Hanif Qureshi v The State of Bihar, which forms the focal point of De's third chapter, vividly illustrates the unique avenues of constitutional practice facilitated by the Indian Constitution. In this case, over 3000 butchers from various regions of the country petitioned the Supreme Court regarding legislation on the slaughter of cows enacted by several provinces shortly after independence. The butchers argued that these statutes violated their fundamental rights.
These laws were enacted to advance the directive principle in Article 48 of the Constitution, which aimed to eventually prohibit the slaughter of various types of cattle. Opposing these statutes on grounds such as the violation of fundamental rights to equality, employment, and religious freedom, the butchers' petition led to the emergence of what De terms a "new bovine order. " Cow slaughter has long been a contentious issue in India, particularly among certain Hindu communities who consider the cow sacred, juxtaposed with others, across different faiths and social strata, who consume bovine meats. With independence, cow protectionists gained significant electoral power and advocated for changes in the regulation of bovine slaughter. The existing approach to slaughter was sensitive to customary practices, religious rights, and individual property rights.
However, the cow slaughter legislation sought to alter this regime, balancing it against the secular nature of the state and individual freedoms protected by the Constitution. De highlights how the butchers navigated the threat of cow slaughter legislation to their fundamental rights, particularly their livelihoods, as a novel form of constitutional struggle. In the new republic, state-imposed restrictions on cattle slaughter were justified by the importance of cattle to India's predominantly agricultural economy. Conversely, those involved in the cattle slaughter trade defended it on the grounds of livelihood, employment, and religious freedom. This marked a significant shift from the colonial era, where the grounds for organizing cattle slaughter were different.
Ultimately, the court upheld the constitutional validity of these slaughter prohibition laws, reflecting the changing legal justifications by emphasizing the economic utility of cows to the agrarian economy. The court ruling also acknowledged that animals no longer serving the agrarian economy could be slaughtered and that a complete ban on slaughter could not be reasonably upheld. De emphasizes the significance of this limited victory for the butchers, achieved against an increasingly dominant majoritarian voice representing the Hindu community in the social and political sphere. However, in terms of legal strategy, one might question whether either party in the new secular republic had any alternative but to pursue the justificatory paths they chose. The Qureshi butchers, whose livelihoods were at stake, naturally centered their case around threats to employment and livelihoods.
While the consolidation of 3000 petitioners into a classaction suit was impressive, De does not delve into how this aspect of the litigation was accomplished, leaving room for further exploration in future narratives. Despite the butchers' efforts to secularize the dispute within the constitutional framework of the new republic, the litigation maintained continuity with earlier sectarian forms of legal reasoning where parties were viewed as religious communities within a sectarian polity. This continuity is most evident in the Supreme Court's defense of the slaughter prohibition legislation based on the veneration of the cow in Hinduism. Similarly, the court examined whether the statutes violated religious freedom by scrutinizing Islamic doctrine on animal sacrifice.
Despite the absence of an explicit need to justify state intervention in sectarian terms, judicial reasoning did so, reinforcing the sectarian and religious dimensions of earlier colonial regulation of religious identities. Thus, while cow slaughter regulation was ostensibly framed in terms of its impact on India's agrarian economy, this form of reasoning may serve as a fig leaf, concealing a majoritarian legal imagination that the efforts of the Qureshis have not been able to displace. De acknowledges the complexities within the Qureshi case, yet his stance on the continuities with the earlier regime regulating slaughter, alongside the new beginnings signaled by the case, remains ambiguous. This intersection of old and new legal imaginations isn't unique to this case but resonates across the other chapters as well.
Despite De's inclination to avoid conceptual debates regarding old and new conceptualizations of the Indian political union, his envisioned "People's Constitution" appears to struggle in transcending these issues.
Navigating through these ambiguities surrounding the emergence of a new constitutionalism through citizen litigation, De emphasizes the significance of court orders. He showcases instances where courts compelled governments to establish legal processes and uphold the rule of law, even while endorsing executive and legislative agendas for social transformation and citizen rights abridgment. The judicial construction of individual rights in the face of the Indian administrative state's contours is evident in the Qureshi case and other chapters alike. Thus, by recounting how courts carved out space for the citizens of a newly independent India by prioritizing legal processes, this essay will shed light on another crucial aspect of De's book.
PROCEDURAL REPUBLIC In each chapter of the book, the petitioners who approached the courts didn't always achieve the substantive rights and remedies they sought. However, as De illustrates, it's not accurate to say that these petitioners outright lost their cases. This is because, alongside upholding state policies, the courts also mandated that the state adhere to specific legal processes while pursuing statutory objectives. Consequently, this created limited spaces where citizens could continue activities that statutory policies had aimed to restrict. For instance, in the Qureshi case, despite the Supreme Court affirming the constitutional validity of cow slaughter prohibition laws, it mandated the state to establish criteria for distinguishing cattle valuable to the agricultural economy from those that weren't.
This allowed the Qureshi butchers to continue slaughtering designated animals and exploit the challenges the state faced in clearly identifying cattle no longer useful for the agrarian economy. This procedural approach is evident in other chapters as well. For example, courts relaxed Bombay's prohibition law by permitting alcohol consumption for medical purposes and curtailed executive discretion by holding that essential legislative powers couldn't be delegated without legislative guidance, thereby mitigating the severity of commodity control statutes. This emphasis on procedure aligns with the design of writ petitions in Indian superior courts, which aren't structured to evaluate the quality of factual evidence often at stake in such petitions.
Thus, while the outcomes may not always fully satisfy the petitioners, the emphasis on procedural fairness provides them with avenues to continue their activities within the confines of the law.
The inability to assess factual evidence in Indian superior courts has led to the implementation of mechanisms like fact-finding committees and amicus curiae, which recent scholarship suggests have resulted in a form of whimsical and ad hoc justice. However, as De's chapters illustrate, by mandating state adherence to some form of legal process, citizen litigation has often undermined the statutory regimes through which the Indian state aimed to pursue various projects of social transformation. This doesn't merely interrupt "state desire," but also bears consequences for citizens. For example, while the Qureshi butchers may have been able to continue their trade, it was under constant threat of challenge by state officials for not strictly falling within the narrow exception for slaughter created by the Supreme Court.
Thus, while court decisions have opened spaces for citizens facing state overreach, they have perhaps also pushed citizens into the shadow of the law or into the realm of India's vast informal state. Here, rent-seeking and informal negotiation, rather than fundamental rights, define social, cultural, and economic activity. De acknowledges this aspect of the "proceduralization" of rights, but its implications for Indian constitutional democracy remain underexplored and present a promising avenue for further exploration.
Having examined some of the key conceptual themes in De's discussion of the "People's Constitution," this essay must now draw to a conclusion STRENGTH AND WEAKNESS OF THE BOOK: Strengths: Comprehensive Analysis: "The People's Constitution" provides a comprehensive analysis of India's legal system, delving into its historical context, theoretical underpinnings, and practical implications for society. The book covers a wide range of topics, offering readers a deep understanding of the complexities and nuances of Indian law. Interdisciplinary Approach: Rohit Deemploys an interdisciplinary approach, drawing on insights from history, political science, sociology, and legal theory to enrich his analysis. This approach allows for a more nuanced understanding of the interplay between law and society in the Indian context.
Engaging Narrative Style: The book is written in an engaging narrative style that makes complex legal concepts accessible to a broad audience. De’s clear and concise writing keeps readers captivated, making the book an enjoyable and informative read. In-depth Research: De's meticulous research is evident throughout the book, with thorough examination of legal precedents, case studies, and historical documents. This scholarly rigour enhances the credibility of his analysis and ensures that the book is well-grounded in empirical evidence. Weaknesses: Limited Focus: While "The People's Constitution" covers a wide range of topics, some readers may find that certain aspects of India's legal system are not explored in sufficient depth. The book could benefit from greater emphasis on specific areas of law or more detailed case studies to provide a more nuanced understanding of complex issues.
Lack of Diverse Perspectives: While Gupta offers valuable insights into the workings of India's legal system, some readers may feel that the book could benefit from a more diverse range of perspectives. Including voices from a wider array of stakeholders, including marginalized communities and legal practitioners, could enrich the analysis and provide a more holistic understanding of the subject matter. Complexity of Language: Although Gupta's writing is generally accessible, some readers may find certain sections of the book to be overly dense or technical. Simplifying complex legal concepts and terminology could enhance the book's accessibility to a broader audience.
CONCLUSION
In conclusion, "A People's Constitution" stands as a significant and illuminating portrayal of constitutional practice during the formative years of the Indian republic. It represents a landmark contribution to the scholarship on the history and politics of Indian constitutionalism. By meticulously examining pivotal cases from the early years of the new constitution through careful ethnographic and historical accounts, the book establishes a foundational framework for future studies within the same methodological tradition. Moreover, it has sparked a lively discourse on the socio-political implications of the narratives it presents and the issues it raises. However, it is essential to acknowledge some limitations in the book's deployment of the concept of the 'people. ' This essay has endeavored to initiate a dialogue with the text by highlighting these limitations.
Nevertheless, these observations do not diminish the book's accomplishments, as it remains an indispensable addition to any collection of essential works on Indian constitutionalism. Furthermore, the critiques and reflections offered in this essay aim to enrich the ongoing conversation surrounding Indian constitutional democracy, which "A People's Constitution" has both initiated and sustained. It is anticipated that this conversation will continue to evolve and flourish in the wake of the book's enduring impact.