Who goes to court challenging the Government? What is their life like? How did they come to repose faith in the Court?
A People’s Constitution: The Everyday Life of Law in the Indian Republic, authored by Rohit De, Assistant Professor of History at Yale, reads as an ethnography of litigants in constitutional cases in the early years of the republic, when the role of the courts as the bulwark of constitutional rights had not yet been firmly established. The work stems from a meticulous examination of both publicly available news items and films as well as hitherto un-accessed gems from archives and court records. They bring out the flavour of the season in which the developments described took place, while also providing the position and possible impetus for the litigants’ actions.
The stage on which the events of the book play out is a newly independent India with a government consisting of Indians, elected by universal suffrage, coming after a long struggle against a colonial power. Though the elected government, drawn from the citizenry, is presumed to be acting in the best interests of the public, particularly when it takes measures which have long been the plank of the freedom struggle or for which there is widespread support, the citizens who feel deprived by these very actions are assured of their rights by the new social contract – the Constitution.
It is important to remember that constitutional litigation pre-dates the Constitution. The book embarks upon a fascinating journey to show how the advent of the Constitution changed the forms and strategies of litigation in terms of arguments advanced regarding state power, identities the litigants ascribe to themselves, and the Courts which they approach for relief.
Less talked-about litigants
The book focuses on four fields of operation of constitutional law which haven’t received as much scholarly attention as, say, land reforms or freedom of the press. There is not much in common between the protagonists of each of the four chapters, apart from their entrepreneurship in agitating for rights in the courts, and the common opponents each of them face – a popular government and varying levels of public sentiment.
The litigants of note in a chapter on prohibition of alcohol are genteel civil servants or journalists possibly backed in their barratry by well-to-do liquor contractors. They face a government formed pursuant to a freedom struggle which had alcohol prohibition as one of its prominent goals. They stand in contrast to a large group of butchers, mostly of the Qureshi caste, spread across North India who go to court facing an unkind polity that is caught up in a frenzy of banning cow slaughter and risk losing their livelihood.
Elsewhere, traders and owners of mid-size businesses are affected by a strict regime of controls on commodities. The government action they challenge is peculiar in that it is not the fulfilment of a long-cherished goal of the freedom struggle, but the repurposing of a wartime measure of the colonial government before.
Prostitutes who seek to protect their rights against legislation which purports to, well, protect their rights, are the heroines of one chapter. Much as it bewilders those who claim to be saviours of the prostitutes, the author deftly places for our consideration the complex interplay of notions of morality, agency and livelihood.
Many who study the law, practitioners and academics alike, tend to remember these judgments in reductive terms, focusing only on the results, which were often losses for the petitioners who approached the courts. The book highlights the smaller victories within those lost battles which paved way for later triumphs.
Lawyers know all too well that positioning in terms of identity of the petitioners, arguments adopted and facts admitted are all part of legal strategy crafted to serve the best interests of the client. Indeed, Constitutional litigation is often only one front of a larger war for a sufficiently motivated and organised cause.
But years later, when the effect of a particular judgment on the law is being considered, not enough weight is given to the possibility that such an outcome may have been influenced by under-articulated immediate concerns of the commoner before the court. In delving into the stories of the people who went to Court, the book helps us understand the ingenuity of the disputant and the professionals who advise them, that shapes the legal contest and hence shapes the jurisprudence.
The stories of the petitioners are all important. The author also brings out the setting of these stories with a wealth of references which depict the thoughts and statements which dominated the public discourse. Much care is taken to explain the social location of each class of petitioners with reference to the history of their group, which becomes very significant in contextualising the problems they face and the motivations behind their actions.
They also show how the common woman and man came to repose faith in the judiciary even when a government elected by their peers turned against them. These stories of affirmations of faith by the citizenry should inform the actions of those who fight to secure constitutional rights, particularly at a time when it is being said that access to justice is becoming the preserve of the elites.
This wonderfully written book is a must read for students of law, history, society and politics alike. In a time where the Supreme Court dominates headlines every single day, this book is a fine addition to the growing scholarship on the role of the Courts in Indian society.
A People’s Constitution: The Everyday Life of Law In The Indian Republic, Rohit De, Princeton University Press.