A People's Constitution Rohit De Sabareesh Pillay
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A People’s Constitution Histories of Economic Life Jeremy Adelman, Sunil Amrith, and Emma Rothschild, Series Editors Rohit De, A People’s Constitution: The Everyday Life of Law in the Indian Republic Fei- Hsien Wang, Copyright in Modern China: A Social History Tariq Omar Ali, A Local History of Global Capital: Jute and Peasant Life in the Bengal Delta A People’s Constitution The Everyday Life of Law in the Indian Republic Rohit De Princeton University Press Princeton & Oxford Copyright © 2018 by Princeton University Press Published by Princeton University Press 41 William Street, Princeton, New Jersey 08540 6 Oxford Street, Woodstock, Oxfordshire OX20 1TR press.princeton.edu All Rights Reserved Library of Congress Control Number: 2018948540 ISBN 978- 0- 691- 17443- 3 British Library Cataloging- in- Publication Data is available Editorial: Amanda Peery Production Editorial: Kathleen Cioffi Jacket Design: Layla MacRory Jacket illustrations by author Production: Erin Suydam Publicity: Jodi Price Copyeditor: Judith Antonelli This book has been composed in Arno Printed on acid- free paper. ∞ Printed in the United States of America 10 9 8 7 6 5 4 3 2 1 Contents Abbreviations ix Introduction 1 The Constitution as Triumph 5 The Constitution as Illusion 7 The Republic of Writs 9 The Supreme Court of India: A Public and Secret Archive 15 Book Schema 18 Rethinking the People’s Constitution: The Constitution 20 Rethinking the People’s Constitution: The People 25 1 The Case of the Constable’s Nose: Policing Prohibition in Bombay 32 Toward the Moral Nation: Prohibition and Nationalism 35 Constitutionalizing Prohibition 39 Creating Sober Citizens: Disciplining Drunkenness 41 The Fundamental Right to Drink: Balsara v. State of Bombay 47 The Test Case for the New Republic 51 Smelling Like a State: Procedural Justice under the Law of Prohibition 58 The Public Interest, Private Interests, and Parsi Interests 63 Prohibition, Law, and the Question of Postcolonial Sovereignty 68 v vi Contents 2 The Case of the Excess Baggage: Commodity Controls, Market Governance, and the Making of Administrative Law 77 The Wartime System of Controls 80 Controls and Freedom in the New Republic 86 The New Economic Criminal 92 “The Marwari Occupants of the Lucknow Bogie”: Caste, Criminality, and Constitutionalism 99 Marwaris and the New Regulatory Order 101 Criminal Law and Constitutional Strategies 106 Separating Powers in the Indian Republic 108 The Delhi Laws Act Problem 112 The Baglas in Court 112 The Arbitrary Administrator: The Shadow of the Bagla Case 114 The Rule of Law in a Planned Society: Controls and the Birth of Administrative Law 117 The Trader as a Constitutional Actor 120 3 The Case of the Invisible Butchers: Economic Rites and Religious Rights 123 From the Queen Empress to the Gau Maharani: Cows, Community, and Sovereignty 125 From the Streets to the Courts: Imperial Constitutionalism and Bovine Litigation 127 Constitutionalizing the Cow 130 Thinking Nationally, Acting Locally: Municipal Management of Cow Slaughter 135 The Shield of Legislation: Cow Protection in the Provincial Assembly 144 Taking Cows to the Supreme Court 148 Religion versus Profession 150 Economy versus Identity 153 Making Economic Policy in the Supreme Court 157 The New Bovine Order 163 Contents vii 4 The Case of the Honest Prostitute: Sex, Work, and Freedom in the Indian Constitution 169 Constituting Women in the New Republic 171 The Birth of SITA: The Making of a Postcolonial Prostitution Law 176 A Representative Prostitute: Husna Bai and Subaltern Legal Mobilization 180 Living with Regulations: Alternatives to Constitutional Litigation 182 Reclassification as Resistance 185 The Prostitute as a Citizen: Disrupting Older Narratives 189 The Right to Practice the “World’s Oldest Profession” 191 The Geography of Freedom: Eviction and the Freedom of Movement 196 From Husna Bai to Kaushalya Devi: The Legacy of a Court Decision 203 Conclusion 209 Epilogue 215 Talking the State’s Language 217 Procedure over Substance 219 Constitutionalism from the Margins 222 A Constitution for Butchers? Markets, Circulation, and the Origin of Rights 224 Acknowledgments 229 Notes 235 Selected Bibliography 277 Index 287 Abbreviations AIR All India Reporter ASMH Association for Social and Moral Hygiene BPA Bombay Prohibition Act, 1949 CrLJ Criminal Law Journal CSSAAME Comparative Studies of South Asia, Africa, and the Middle East CWMG Collected Works of Mahatma Gandhi ESA Essential Supplies Act, 1946 ILR India Law Reports IOR India Office Records NAI National Archives of India NMML Nehru Memorial Museum and Library MSA Maharashtra State Archives SC Supreme Court of India SCR Supreme Court Reports SCRR Supreme Court Record Room SITA Suppression of Immoral Traffic in Women and Girls Act, 1956 ix A People’s Constitution Introduction In December 1950 Mohammed Yasin, a young Muslim vegetable vendor in the small town of Jalalabad in north India, was in distress. He had received notification that the town government was implementing a new set of bylaws licensing the sale of various commodities and was providing only one license for the sale of vegetables in the town area. This license had been issued to a Hindu merchant, granting him a virtual monopoly over the vegetable trade in Jalalabad, which forced Yasin and other vegetable vendors to sell their goods after paying the license holder a certain fee. Yasin petitioned the Supreme Court to issue a writ of mandamus directing the town committee not to pro- hibit the petitioner from carrying on his trade. A writ of mandamus is an order issued by a superior court to compel a lower authority or government officer to perform mandatory or administrative duties correctly. Yasin’s lawyer argued that not only was the new regulation ultra vires (i.e., beyond the powers of the municipality), it also violated Yasin’s rights to a trade and an occupation, con- ferred by the Constitution of India. As a vegetable vendor from a minor town, Yasin appears to be a nondescript bystander as the grand narratives of Indian history— independence, partition, elections, the integration of princely states— play out around him. Why should he be interesting to us today? Yasin is one of the first Indians to present himself before the new Indian Supreme Court as a rights- bearing citizen. His problem and its solution both emerge from India’s new constitutional republican order and represent a phenomenon that is the subject of this book.1 Yasin’s constitutional adventure highlights three features, this book argues, that form the basis for Indian constitutionalism. First, the Constitution mattered as a limit to or a structure for daily living. Second, this constitutional engage- ment included large numbers of ordinary Indians, often from minorities or 1 2 Introduction subaltern groups. Third, a significant number of these constitutional encoun- ters were produced through the new Indian state’s attempt to regulate market relations. India became independent at the stroke of midnight on August 15, 1947. Three years later the Constituent Assembly, whose members were nominated by elected provincial legislatures, promulgated a new constitution declaring the state to be a “sovereign democratic republic. ” This was a remarkable achieve- ment for that time.2 The Indian Constitution was written over a period of four years by the Constituent Assembly. Dominated by the Congress Party, India’s leading nationalist political organization, the assembly sought to include a wide range of political opinions and represented diversity by sex, religion, caste, and tribe. This achievement is striking compared to other states that were decolo- nized. Indians wrote the Indian Constitution, unlike the people of most former British colonies, like Kenya, Malaysia, Ghana, and Sri Lanka, whose constitu- tions were written by British officials at Whitehall. Indian leaders were also able to agree upon a constitution, unlike Israeli and Pakistani leaders, both of whom elected constituent assemblies at a similar time but were unable to reach agreement on a document. The Indian Constitution is the longest surviving constitution in the post- colonial world, and it continues to dominate public life in India. Despite this, its endurance has received little attention from scholars.3 Although there are a handful of accounts of constitution making and constitutional design, the processes through which a society comes to adopt a constitution still remain underexplored.4 Constitutions mark transformations of polity and codify moments of revolutionary change. Yet we have little idea of how Indians un- derstood and experienced the new order marked by a constitution. This is despite the fact that constitutional debates had dominated newspaper headlines in all major Indian languages since the 1920s. The process of drafting in 1946 evoked a great deal of interest across the country, and the Constituent Assembly was flooded with telegrams, postcards, and petitions from school- boys to housewives to postmasters, staking claims, making demands, and of- fering suggestions for the constitutional draft.5 Thousands of Indians followed Mohammed Yasin in invoking the Constitution in the courts. These cases in- cluded situations of dire necessity (e.g., a Muslim man who, on being informed of his imminent deportation to Pakistan, smashed his tumbler and injured his face and hands to give his lawyer time to file a writ petition while he was re- ceiving medical treatment);6 situations of mundane everyday life (e.g., an irate Bengali college professor who protested the rise in Calcutta tram fares by Introduction 3 challenging the legality of the notification);7 and leaps of imagination (e.g., a petitioner who demanded that the country switch to matrilineal succession and that all state documents require the name of the mother rather than the father.8 As we shall see, the Constitution did not descend upon the people; it was produced and reproduced in everyday encounters. From the earliest days of India’s independence, citizens’ political action influenced the court and re- veals a long history of public-interest litigation driven by litigants rather than judges.