Way back in 1985, I got a call from an agitated lawyer friend. He wanted me to mobilize opinion against the newly passed Administrative Tribunals Act, which took away the jurisdiction of the Supreme Court and the High Courts over service disputes of public servants, and vested it in administrative tribunals. The power of constitutional courts was being handed over to statutory tribunals, which did not even need to have judicial members on the bench.
I began to dictate an article (stenographers were not an endangered species then). My stenographer was the late SP Sampath Kumar, a government stenographer who worked for me in the evenings. When I had just done a couple of paragraphs, Sampath stopped. ‘This Act is going to affect me!’ he exclaimed. ‘But how?’ I asked. He said he was facing disciplinary action for being a member of the Ananda Marga, and he had a pending petition in the Supreme Court under Article 32 of the Constitution (itself a fundamental right), asserting his fundamental right to be a member of the organization. That petition was to now get transferred to an administrative tribunal. That was the end of my article. And we were back to Article 32, as I filed Writ Petition 12437 of 1985, SP Sampath Kumar versus The Union of India in the Supreme Court, challenging the constitutional validity of the Administrative Tribunals Act 1985.
Earlier in 1978, Randhir Singh, a driver-constable in the Delhi Police petitioned the Supreme Court. Invoking the principle of equal pay for equal work, he demanded that his scale of pay should at least be the same as that of other drivers in the service of the Delhi Administration. The Supreme Court was overwhelmed with emotion. Justice Chinnappa Reddy wrote, ‘True, he is the merest microbe in the mighty organism of the State, a little clog in a giant wheel. But the glory of our Constitution is that it enables him to directly approach the highest court in the land for redress. It is a matter of no little pride and satisfaction to us that he has done so. Hitherto, the equality clauses of the Constitution, as other articles of the Constitution guaranteeing fundamental and other rights, were most often invoked by the privileged classes for their protection and advancement and for a “fair and satisfactory” distribution of the buttered loaves among themselves. Now, thanks to the rising social and political consciousness and the expectations roused as a consequence, and the forward-looking posture of this court, the underprivileged also are clamouring for their rights and are seeking the intervention of the court with touching faith and confidence in the court.’
But the judges of the eighties were perhaps giving too much credit to their own ‘forward looking posture’. Rohit De’s A Peoples’ Constitution reminds us that Justice Vivian Bose’s ‘butcher, baker and candle stick maker’ were knocking at the doors of the constitutional courts from the time the Constitution came into being.
Constitutional narratives are often judge and lawyers centric. Great lawyers advance path-breaking arguments and visionary judges carry the law forward giving flesh to the bare bones of the Constitution. But due importance has not been given to those who set the constitutional process in motion, the people of ‘We the People’. This fascinating book by Rohit De, a lawyer-historian who teaches at Yale, fills the void.
As the author says, ‘this book breaks new methodological grounds by studying the Constitution through the daily interpretive acts of ordinary people as well as of judges and state officials. Using previously unexplored archives at the Supreme Court, this book charts how the Constitution came to dominate, structure, frame and constrain everyday life in India.’ His objective, as he says in his Introduction, is to study ‘constitutional consciousness’ as it exists in people’s minds. His book ‘charts the dialectic between the Indian Constitution as “Politics of State Desire” and the Constitution as “articulating insurgent orders of expectations from the State”.’
De’s focus is on the pre-PIL era of Indian Constitutional Law, and mainly the Nehruvian era. He picks up four areas of constitutional litigation which engaged the attention of the superior courts during that period; prohibition, controls over essential commodities, cow slaughter and ‘immoral traffic’.
The litigation over the Bombay Prohibition Act featured Behram Khurshid Pesikaka, a government servant whose jeep knocked down three persons who emerged from behind a stationary vehicle and stepped out on the path of the jeep. His breath was alleged to have smelled of alcohol. Though the police doctor testified that he was not under the influence of alcohol and he was acquitted of the charge of rash and negligent driving, he was convicted under the Bombay Prohibition Act, which criminalized the mere consumption of liquor without a permit. That led him to challenge the constitutional validity of the prohibition law.
Mohammed Yasin was a young vendor in the small town of Jalalabad. He was aggrieved by the licensing byelaws of his Town Area Committee giving only one licence for the sale of vegetables. This licence having been awarded to someone else, Yasin petitioned the Supreme Court asserting his fundamental rights to trade, and an occupation.
Hari Shankar Bagla, an ordinary businessman was travelling in a train with his wife and servants, with 493 pounds of new cotton cloth. The entire quantity was seized and he was charged under the Essential Supplies Act of 1946 and for violating the Cotton Textile Order of 1948. These were not illicit or harmful goods, but the act of moving cloth without a permit had made him breach the system of economic controls which was a feature of the early decades of Independence. This led him to challenge the constitutional validity of the Essential Supplies Act.
Cow slaughter laws were challenged by Muslim butchers, nearly ninety percent of whom identified themselves as members of the Qureshi Community. The Hanif Qureshi case, the author rightly says, was one of the earliest class action cases in post-Independence India. Over three thousand petitioners hailing from ninety villages and towns in the States of Maharashtra, Madhya Pradesh, Uttar Pradesh and Bihar came together to mount legal challenges. And the Suppression of Immoral Traffic Act was challenged in the Allahabad High Court by a twenty-four year old woman Husna Bai, who candidly stated that her profession was prostitution.
The faceless individuals who invoked the Constitution rattled the establishment sufficiently. In an interesting revelation, De points out that the Chief Minister of Hyderabad complained to the Central Government as early as in 1951 that, ‘An extraordinary tendency has been noticed recently for all sorts of people to take cases up on the High Court citing provisions in the constitution relating to what are termed fundamental rights; a Pakistani woman has asked for a stay of an order served on her by police asking her to leave the state for non-possession of a valid permit, … while two displaced teachers who were asked to pass a test of a regional language have prayed for the issue of a writ of mandamus questioning the validity of an order.’
With his examples, De seeks to argue that the Constitution did not descend upon the people and that it was produced and reproduced in everyday encounters. And he steers clear of the ‘Who won the case?’ approach, arguing that such a question is reductive and unhelpful in explaining people’s repeated engagement with the law. And so, he pays equal attention to the losers in constitutional litigation, exploring what their vision of the correct constitutional order would have been.
Rohit De is the first scholar to work with materials in the Supreme Court record room. Among the interesting insights which he gained was the fact that challenges to particular regulatory laws were dominated by individuals who belonged to the same caste or community. He found that litigants almost always identified themselves by their community. And he found that caste and religious minorities appeared to be overrepresented in the courts, showing that they took the state’s obligations to protect them seriously. His research provides evidence, he says, that those who were unlikely to represent themselves through electoral democracy because of class, sex or race, were overrepresented before the Courts in constitutional cases.
Raju Ramachandran Is Senior Advocate in the Supreme Court.