A Glimpse into the Experiments of Ordinary Litigants with the Constitution
Hon’ble Justice Vivian Bose, a retired Judge of the Supreme Court in one of his cases expressed that, “Constitution is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the butcher, the baker, and the candlestick maker.”
Rohit De is currently an Associate Research Scholar in Law at Yale Law School and an Assistant Professor in the Department of History. In his book, A People’s Constitution: The Everyday Life of Law, De has attempted to expound upon this above-mentioned dictum of Justice Bose and has sublimely analyzed the understudied social history of Constitutional Law.
A People’s Constitution provides an extensive analysis of the major court cases that highlight how the ordinary citizens of a newly independent nation took the help of the Constitution to challenge the State’s actions and forced it to “discipline itself”. Through the course of four case-laws, it not only elaborates upon what the Court did, or who won the case, but also actively examines “the afterlife of a court case”, as a legal precedent as well as “its effect on the lower courts, executive practices and popular memory.” In this eloquently written book, the author discusses how ordinary citizens viewed their rights in the newly independent country and eventually helped in shaping the laws according to their expectations. It deviates from the commonly debated landmark judgments and delves into the story of the litigant rather than the judgment itself. The book challenges the idea of the Constitution being an exclusive instrument of social and economic elites, and explains how it involved and in a sense, transformed subaltern life. The author has divided the book primarily into four chapters, wherein each chapter is meticulously crafted and exhibits the in-depth research carried out by him.
The Case of the Constable’s Nose
The first chapter focuses largely on the Bombay Prohibition Act of 1949(“BPA”) and similar legislations enacted in other provinces, which made the consumption of alcohol without a license an offence. It relates ‘prohibition’ with ‘nationalism’ and quotes Gandhi to assert the immorality of indulging in the foreign practice of drinking. De not only puts forth arguments presented by various Congressmen in favor of BPA but also enlists the minorities’ dissenting viewpoint while giving a detailed account of how BPA was constitutionalized in India. He explores the challenges posed to BPA through two cases: Behram Khurshed Pesikaka v. The State of Bombay and The State of Bombay and Another v. F.N. Balsara. This allows the readers to get an in-depth analysis of whether prohibiting drinking in the name of social reform is a reasonable encroachment of a citizen’s legal rights. However, the chapter does not end here and goes on to examine the aftereffects of the two aforementioned cases and how the public response to the BPA eventually led to its scrapping. Yet, the focus on these two Parsi cases actively excludes similar concerns of other minorities, such as Dalits and Christians. Though concerns of tribal communities have been briefly highlighted, De has not mentioned any cases filed by the said minority groups. It is unclear whether this exclusion is based on under representation of these minorities in court cases since the author has not discussed it. This chapter thus, does not provide an exhaustive account of how BPA affected different groups, but rather presents a selectively detailed approach through Parsis.
The Case of the Excess Baggage
The second chapter focuses on commodity controls through the Essential Supplies Act of 1946 and the Cotton Textile Order of 1948, which were based on colonial-era laws, like the Defence of India Act of 1939. They attacked traders and merchants, especially those of the Marwari community, and led the public to view them with constant suspicion. The traders’ response to these Acts is highlighted through two important cases: Harishankar Bagla and Another v. The State of Madhya Pradesh and Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh and Ors.. It raises questions about how colonial laws were opposed during the British Raj yet later justified, and even intensified, on grounds of public welfare. This chapter delves into the relationship between the state and the market and allows the readers to understand the legal history of how certain administrative laws came to be formed through the Constitution in independent India. Albeit a little repetitive and slow at certain points, the author has managed to make this chapter an interesting read by locating the social position and struggles of the Marwari community and by using illustrations of advertisements and films. Unlike other legal books that elaborate technical facts of a case law, De has projected a wider scope of events, which allows the readers to get a well-rounded and holistic understanding of the Marwari case.
The Case of Invisible Butchers
Chapter three unravels the struggle of butchers, particularly the Qureshis (a caste of South Asian Men involved in the meat trade, majorly beef) whose source of livelihood was snatched away when the provincial government of UP, Bihar, and MP banned cow slaughter in 1957. Thereinafter, Mohd. Hanif Qureshi v. State of Bihar was held in the Apex Court. De eloquently discusses the contours of the history of cow slaughtering and elucidates how this centuries-long Hindu-Muslim issue was ultimately ‘constitutionalized’. Unlike the earlier position, where the debate over an absolute ban on cow slaughter was based solely on religious beliefs, with the enactment of the Constitution, the position changed; the claim of right to equality, profession, and the economic worth of cow slaughter became the presiding arguments. A remarkable, yet hidden fact that De discovered through his extensive research in a “dusty Supreme Court basement,” was that this suit was brought around by 3000 individually named petitioners, making it the first class-action suit. The rationale, according to De, for such a magnanimous response was the fact that Qureshis are in an ‘inherently’ sensitive socio-political position, as they belong to a minority within a minority  Moreover, the occupation of cow slaughtering added to their misery as it is in stark opposition to the morality of majoritarian Hindus. Consequently, they had few options apart from taking the path of court as the opposite parties had the majoritarian support and the power to persuade the policy change.
The Case of the Honest Prostitute
Chapter four is an interesting take on the debate over the legalization of the profession of prostitution and sex work. It focuses on the enactment of the Suppression of Immoral Traffic in Women and Girls Act of 1956 (“SITA”). HusnaBai, one of the first petitioners against SITA, a prostitute, claimed sex work as her profession and argued that SITA violated the fundamental right to practice her profession, guaranteed by Article 19 of the Constitution. This argument was novel and to some extent, preposterous to the majoritarian view who saw sex workers as victims of illegal traffic and oppression, and sex work as a moral threat to the Indian culture. However, this rhetoric was shattered by the claims of HusnaBai and many other prostitutes whom she represented. An interesting argument that De brought forth was that the prostitutes’ presence in courts, and their legal consciousness was a result of their constant marginalization and direct confrontation with the state, time and again.This led to positive insistence of their rights, and helped the readers understand how it shattered the myth that courts are the arena of the privileged Indian population exclusively.
The book has successfully elucidated how ‘ordinary citizens’ coalesce to make the state accountable for its actions through the instrument of the Constitution. The book also highlighted that it is equally important to study the story of the litigant as it is to understand the legal reasoning of the case while studying judgments decreed by courts; something which lawyers and historians tend to forget while researching. Since it delves into both the social and technical aspects of law, De has extensively attempted to fill the void between the two. Thus, A People’s Constitution stands out from a plethora of other legal books available today and qualifies as a good-read for law and history enthusiasts.
Although the book is set in the decades of the Nehruvian era, some of the themes that De chose to pursue still remain in the headlines quite often. Whether prostitution qualifies as a legitimate profession is still a widely debated topic, though the courts continue to uphold the fundamental rights of prostitutes over statutory provisions and general laws, such as the Prevention of Immoral Trafficking Act. Another widely debated issue is the unabated increase in mob violence against Muslims for consumption and trading of beef, and heinous crimes against the disadvantaged. This forces us to question whether we are letting the seemingly popular notion of morality preside over the constitutional morality that was established by the State in its initial years.
Bidi Supply Company v. Union of India, AIR 1956 SC 479.
Rohit De, A People’s Constitution: The Everyday Life of Law, 21 (Princeton University Press, 2018).
The Bombay Prohibition Act, 1949.
AIR 1955 SC 123.
AIR 1951 SC 318.
Essential Supplies Act, 1946.
Defense of India Act, 1939.
AIR 1954 SC 465.
AIR 1954 SC 224.
Supra 2, at 148.
AIR 1958 SC 731.
Supra 2, at 124.
Ibid, at 166.
Suppression of Immoral Traffic in Women and Girls Act, 1956.
Supra 2, at 211.
Kajal Mukesh Singh & Ors. v. State of Maharashtra, 2020 SCC OnLineBom 954.
The Immoral Traffic (Prevention) Act, 1956.
This book review has been authored by Nishant Nagori, Associate Editor and Tanishka Maurya, Assistant Editor at RSRR.