April 10, 2020
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They Used The Good Book

A study of constitutional litigation by common Indians describes processes and landmark cases to show how it impacted individual freedom and social justice

They Used The Good Book
They Used The Good Book
A People’s Constitution
By Rohit De
Princeton University Press | Pages: 312 | Rs. 699

In dispensing justice to a mason, Moti Ram, in 1978, whom the lower court had granted bail against a surety of Rs 10,000, to be realised within the same district, Justice Kris­hna Iyer of the Supreme Court had expressed shock at the manner of seeking such high surety from a poor man and reminded the err­ant magistrate that “our Constitution, enacted by ‘We the People of India’ is meant for the butcher, the baker, the candlestick maker—shall we add the bonded labou­rer and the pavement dweller”. It was a reference to a statement by Justice Vivian Bose in 1956 who, while expre­ssing anguish at procedural delays in getting relief for a pet­itioner, had stated that the Constitution was not only for the benefits of the highly placed, but as much for the poor and humble.  

These and many such cases not only project the glory of our Constitution but demonstrate how marginal citizens operating in an informal economy have continued to use constitutional pro­vi­sions as an instrument to trigger public debates on the state’s obligation towards individual freedom and social justice. Created by an elite consensus, it is interesting how the Constitution and constitutional rem­edies have been sought by individuals on the margins who take recourse through the Supreme Court to produce an alternative narrative on citizenship. Whether the apex court, which upholds constitutional obligations of the state, has transformed to become the ‘Supreme Court of Indians’ is still open to interpretation.

In claiming that the constitutional provisions have indeed transformed everyday life in the country, A People’s Con­­­­st­itution argues that for a wide range of groups it acted as a powerful way to provide a check on executive powers in framing and claiming their legitimate rights. The book examines four import­ant cases that set legal precedents: a Parsi journalist’s contestation of new alcohol prohibition laws; Marwari petty traders’ challenge to the system of commodity control; Muslim butchers’ petition agai­nst cow protection laws and sex workers’ plea to protect their right to practice prostitution. What emerges is not a story of simple resistance to state authority but a process of civic engagement with the state to reshape society and its economy.

That ordinary citizens have been in the forefront of legal battles with the state from the earlier days lays to rest the assumption that judicial activism gained currency only in the ’80s.

Through the study of these landmark cases, Rohit De, who teaches history at Yale University, shows how a claim to cul­tural autonomy alongside a choice of economic activity had not only generated democratic behaviour but contributed to strengthening democracy too. That ordinary citizens have been in the forefront of rational legal battles with the state from the earlier days lays to rest the dominant assumption that judicial activism gained currency only in the 1980s. In effect, the legacy of forward-looking posture by the court had invoked touching faith and confidence amongst the underprivileged to seek the recourse of law for their rights. All said, the Supreme Court is still an elitist institution, not for the faint-hea­rted without adequate resources.  

De’s insightful analysis leads the reader away from the judgment-driven narrative on ‘who won the case’ to a more nua­nced understanding on the contingency and the contestation that make up the process of litigation. The anxieties of the legal process outside the court premises are at times more important than the act­ual outcome of the case. Despite the sex workers’ minimal success in the courts, the litigation succeeded in challenging the arbitrary powers of a local magistrate to evict any woman from the neighbourhood. Similarly, in the prohibition cases, expanded police powers came under judicial ire. The afterlife of a Supreme Court case is critical, not only as a legal precedent for lower courts but also for its imp­act on executive practices.

Despite incisive analysis, A People’s Con­stitution limits itself to a celebratory note and, as a consequence, omits addre­ssing the structural shortcomings in the system. Although it is the constitutional mandate to keep the judiciary separate from the executive, in a majority of the states district magistrates are still drawn from the civil service. The book is silent on the SC’s failure to address this malaise, as also on the abysmal state of the lower judiciary. Till both these aspects are tackled upfront, full realisation of constitutional provisions will remain a work in progress. With constitutional con­­scious­ness growing among citizens, the judicial process needs to be made responsive to the everyday life of its people.

(Sudhirendar Sharma is an independent writer, researcher and academic)

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