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Can the Subaltern Speak Constitutionally?

Rohit De's 'A People's Constitution' is a remarkable journey into how the constitution grew into the ultimate totem of emancipation, especially for the most marginalised communities today.

Can the Subaltern Speak Constitutionally?
Much of the faith in the constitution is reposed by marginal or minority groups rather than the elites. Photo: Dave Kleinschmidt/Flickr (CC BY-SA 2.0)

In his 1948 speech to the Constituent Assembly, Dr B.R. Ambedkar said, “Constitutional morality is not a natural sentiment, it has to be cultivated…Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic”.

Rohit De’s original, meticulously-researched, and yet humorous book, A People’s Constitution, traces ways in which this constitutional sentiment developed organically.

The constitutional project has often been condemned as the product of a westernised liberal elite, doubly divorced from both ‘Indian culture’, and serious recognition of the gap between liberal idealism and the reality of existing power structures. K. Hanumanthaiya of the constituent assembly had poignantly bemoaned, “We wanted the music of the veena or the sitar, but we have the music of an English band.”

And yet, today, for better or worse, the constitution is the ultimate totem of emancipation, especially for the most marginalised communities. Tribals in Jharkhand recently installed slabs inscribed with constitutional provisions as part of the Pathalgadhi movement, a constant reminder of what they’re owed but repeatedly denied.

‘A People’s Constitution: The Everyday Life of Law in the Indian Republic’ by Rohit De, Princeton University Press, 2018

De’s radical thesis is that much of this project of transforming subjects into citizens was led by marginal or minority groups rather than the elites. The writ petition was the tunnel through which the demand for rights was routed. Pre-Independence, the law existed for the private citizen primarily for civil litigation on property disputes. Effectively, the right to property and freedom of religion were the only rights recognised by the colonial state.

Post-1950, there was an explosion in writ petitions filed against the state, thanks to a ‘small but consequential amendment’ proposed by Ambedkar, which expanded judicial review of executive actions beyond fundamental rights, thus revoking governmental immunity to writs. As De beautifully puts it: ‘The constitutional courtroom thus becomes an archive of citizenship, a space in which the individual and state can converse with each other’.

What was their beef with the state (literally and figuratively)? Nehruvian India intended to be a regime of economic and social change. Inevitably, the intrusion and coercion of the nanny state was resented, and was challenged on the basis of constitutional rights.

In India, trade groups are often formed around caste or community, and so, Parsis opposed the Bombay Prohibition Act, Marwaris fought the Essential Commodities Act, Muslim Qureshis challenged cow slaughter or consumption bans, and sex workers attacked the well-intentioned, anti-trafficking SITA Act that put them out of business.

The drinker

De’s research unearths truly remarkable dissenting voices. Take, H.J. Khandekar, a Dalit member of the constituent assembly who spoke up for individualism in the context of Prohibition, which was permanently enshrined as a Directive Principle. Khandekar objected to it on the grounds of individual liberty and minority rights.

The temperance movement led by Gandhi had wide support among Hindu reformers, women’s groups and Muslims, but it ignored the importance of alcohol to Parsi, Christian, Dalit and tribal culture, and significantly, trade.

Inevitably, in 1951, the Bombay Prohibition Act was challenged in the Supreme Court in the drunk driving case of one Behram Pesikaka, a Parsi civil servant. The draconian BPA put the burden of proof on the accused: a constable’s nose was enough to convict.

A previous Supreme Court judgment had created an exception for alcohol-based products not intended for inebriation, so Pesikaka claimed his breath smelled of cough syrup, and in the absence of any breathalyser, his conviction was overturned. The apex court shifted the balance of proof back to the prosecution.

In 1951, the Bombay Prohibition Act was challenged in the Supreme Court. Photo: PTI

Naturally, tonic sales surged, illicit alcohol consumption continued, acquittals became the norm, and the entire Prohibition regime in Bombay collapsed like a pack of cards. All too rarely, but at their best, the courts redistributed powers back from the state to the citizen, that fundamental unit of a republic.

The trader

De’s account uniquely emphasises economic rights, highlighting the strong legal resistance put up by economic actors against a socialist state instinctively suspicious of the market. The post-colonial state’s “permit-license-quota Raj”, with its stifling web of regulations, even extended colonial wartime price controls! After all, even today, the irony of a democratic state using colonial sedition laws to stifle dissent is not lost on anyone.

The draconian Essential Commodities Act of 1955 (still on the books!) allowed summary trials with limited appeals, again placing the burden of proof on the accused, typically traders suspected of hoarding, moving commodities without a permit, or violating administered prices.

In most cases, the courts upheld fundamental rights to trade over excessive executive power, whittling down the severity of laws, but the success of these economic challenges was mixed. Rights like the Right to Property were steadily diluted, and abolished altogether by 1978. Admittedly, land acquisition was necessary to achieve greater equality, and liberty without equality is often a handmaiden of privilege.

In these ways, the courts clarified the relationship between the state and the market, limiting state powers, but also putting the market in its place as a means – not an end – in national development.

The butcher

The colonial state was reluctant to restrict cow slaughter, since the British Army was the biggest consumer of beef, and to maintain some semblance of religious neutrality. But with independence and the rise of cow protection movements, popular Hindu sentiment was overwhelmingly in favour of a ban. In 1955, even Communists marched with Hindu priests in Delhi demanding a complete ban!

In 1957, as De discovers among dusty Supreme Court records, 3,000 Muslim butchers from the Qureshi community challenged the constitutionality of anti-cow slaughter laws in ‘Mohd. Hanif Qureshi vs State of Bihar’, likely the very first class-action lawsuit in independent India.

As the butchers cleverly challenged on economic rather than religious grounds, the courts as well as supporters of the bans were forced into rhetorical cartwheels. Why were cows more important than buffaloes? Why could old cows not be disposed of on utilitarian grounds? What about abandoned, rampaging cows creating havoc in the agricultural economy (the more things change)?

The colonial state was reluctant to restrict cow slaughter to maintain some semblance of religious neutrality

. Photo: Reuters

Ultimately, complete bans such as the ones in Uttar Pradesh and Bihar in the 50s were invalidated by the courts, restricting prohibition to cows and calves, while finding that a ban on slaughter of bulls and buffaloes without any test of age or economic usefulness violated the rights of the petitioners.

While the Qureshi case succeeded in making fundamental rights trump directive principles, it also ended up validating majoritarian sentiments that had the fig leaf of rather dubious economic logic. Roughly speaking, these judgments governed cow slaughter, till the Modi government’s 2017 attempt to ban slaughter indirectly, using trade restrictions, even as ‘gaurakshak’ thuggery increasingly renders paper laws moot.

The sex worker

In 1958, Husna Bai, a self-confessed ‘prostitute’, cheekily challenged the then recently passed Suppression of Immoral Traffic in Women and Girls Act (SITA) in the Allahabad high court by arguing that it ‘frustrated the purpose of the welfare state established by the constitution’, thus prefiguring the discourse of sex work and legalisation by several decades.

While the case was dismissed, its notoriety spurred several challenges to SITA’s unreasonable restrictions on the right to trade and profession, and the excessive powers it gave local authorities to evict any suspected ‘prostitute’ from their homes. A fascinating fact De points out: prostitutes were some of the only women to vote in colonial-era elections, as it restricted franchise to property owners, and ‘respectable’ women rarely owned any.

Women reformers were aghast and naturally sought to frame prostitution as a social evil, and sex workers as exploited women. The great Urdu writer Saadat Hasan Manto would have disagreed: his famous prayer declaimed that he would ‘not so much as look at housewives but is in seventh heaven in the company of whores.’

SITA denied agency to prostitutes and the courts agreed that ‘even a depraved woman cannot be deprived of her rights’.

Lower courts gave conflicting judgments, but the Bombay high court declared the section allowing magistrates to evict suspected prostitutes unconstitutional. Eventually, the Supreme Court intervened, moralistically upholding the law in its entirety, but not before the constitution became relevant to the lives of sex workers.

De argues convincingly that even subaltern litigants, vilified by the general public, were successfully able to reframe issues specific to them as problems of the state’s overreach are applicable to all. Having said that, it remains hard to gauge how representative the test cases De uses for illustration were of overall litigation before courts in the 50s, let alone in the following decades.

Also, the flip side is that courts increasingly compensated for a lack of political voice, which led to judicial activism and the much-abused public interest litigation (PIL). Landmark progressive judgments (like the right to privacy case and striking down of Section 377) in recent years have come alongside unconscionable delays in listings of habeas corpus petitions (a fundamental right dating back to the 1200s), notably with respect to mass detention of Kashmiri political leaders, academics and businessmen.

Regardless of the direction the courts take in coming years, A People’s Constitution remains a tremendously valuable guide to the promise of a constitutional morality that has roots both deep and wide.

Rohit Thombre is an equity research analyst at an investment bank, with interests in economics, history, literature and constitutional law.

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