Beyond the social contract
IN December of 1950, Mohammed Yasin, a young vegetable vendor in the small town of Jalalabad in Uttar Pradesh was faced with a quandary. He discovered that the town municipality had implemented a new set of byelaws licensing the sale of various commodities and had provided only a single license for the sale of vegetables in the town area. This license was issued to a Bishamber Pant, granting him a virtual monopoly over the vegetable trade in Jalalabad, thus forcing Yasin and other vegetable vendors to sell their goods after paying Pant a certain fee. Yasin moved the Supreme Court praying for a writ of mandamus directing the town committee not to prohibit the petitioner from carrying on his trade.
A writ of mandamus was an order issued by a superior court to compel a lower authority or government officer to perform mandatory or administrative duties correctly. His lawyer argued that not only was the new regulation ultra vires of the act which had been framed, i.e. went beyond the powers of the municipality, but it also violated Yasin’s rights to trade and occupation conferred 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 around him. However, what is striking is that Yasin became one of the first Indians to present himself before the Indian Supreme Court as a ‘rights bearing citizen’ and both the quandary faced by Yasin and his solution emerged from this new constitutional order.
Where did this new constitutional order emerge from? The constitutional text declares that its source of authority is: ‘We, the people of India… who have adopted, enacted and given this constitution to ourselves.’ This of course is a convenient fiction. ‘The people’ had a limited role in the drafting process. The text was authored by members of the Constituent Assembly who were nominated by provincial legislatures elected on the basis of limited franchise prior to partition. ‘The people’ had little input in the largely oligarchic process of constitution-making.
One could argue that the above interpretation is uncharitable. The Constitution derived its legitimacy from the domination of the Constituent Assembly by the Indian National Congress, which was at the time India’s largest political party, and seen as the vanguard of the mass struggle for freedom. It was the Congress Party and its leaders who spoke for ‘the people’, and the party’s claim to legitimacy was validated with its resounding victories in the first elections held with universal adult franchise in 1952. But is the legitimacy of a constitution only rooted in the fiction of a social contract validated through elections? The constitutional text indicates how the Constitution sees ‘the people’ but how does one capture how ‘the people’ view the Constitution?
Political scientists writing on the postcolonial Indian state have been suspicious of the claim that the Indian Constitution ushered in a new order. Drawing on the Gramscian notion of ‘passive revolution’, they suggest that there is a degree of continuity between the colonial state and the Indian republic despite independence and elections. This draws upon the failure of the postcolonial state to bring about the massive social and economic transformations that it promised.1 They argue that the emerging bourgeoisie that dominated the new leadership lacked the social conditions to establish a complete hegemony over the new nation, and entered into an alliance between an older dominant class with only a partial appropriation of the popular masses (through elections).2 As a result, a gap arose between the elites comfortable with Weberian rationality and the people whose everyday discourses were not structured by formal rationality at all. This explains the failure of the state to implement its policies successfully.
The conventional understanding is that most citizens remained outside these elite conversations altogether, and were puzzled by its terms. Even though figures like Nehru were aware of this and constantly sought to explain the operations of the state and democratic politics to the people, they were caught within their own conceptual language, and the limitations of intelligibility of English.3
This understanding presumes that it is the state which has to bring people into the conversation. However, constitutional litigation became the way through which people inserted themselves into a conversation with the state. A bottom up view of the constitution by its very nature cannot be captured in the grand sweeping narratives of ‘high politics’ but filters through minutiae of individual encounters. This essay turns to Yasin’s encounter to understand how the constitution enters everyday life.
The Indian constitutional compact, unlike its American counterpart to which it is often compared, was not centred on the question of protecting individual rights from the tyranny of the state, but rather sought to empower the state to bring about the sweeping social and economic changes that the Congress-led political struggle had aimed for. Rights were thus limited, for instance the right to liberty granted in the Constitution was subject to permissible restrictions ‘in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.’4
Apart from general commitments to social and economic justice and reducing disparities of income, it also contained specific commitments to create a system of social security, enact a uniform civil code for all communities, redistribute wealth, prohibit intoxicating drinks and drugs, and even to ‘organize agriculture and animal husbandry on modern and scientific lines by improving breeds and prohibiting slaughter of cows, calves other milch and draught cattle.’5 This agenda for modernization, industrialization and secularism led to a massive increase in the powers of the federal government. The Constitution empowered the state to create a ‘command economy’ through nationalization and regulation.
The new byelaws of Jalalabad were a part of this larger move to bring the economy under governmental control, where in the interests of raising revenue and regulating the market, individual rights could be undercut. The town committee felt that appointing a single contractor for vegetables would be more efficient than dealing with multiple vegetable vendors. This model of governance was widespread and in 1958, the Law Commission Report on the administration of justice observed that ‘the country stagnated for one hundred and fifty years of foreign rule, our legislatures are now trying to advance the nation in all directions. In their zeal to achieve quick results, they have not infrequently enacted legislation interfering with the vital and daily functions of the citizen.6
While the Constitution greatly expanded the state’s reach and authority, its framers also provided for a judicially enforceable Bill of Rights and brought in judicial review of legislation, ordinances, rules and administrative action. The move was surprisingly uncontroversial, perhaps given the absence of a strong tradition of judicial inference with the executive branch in colonial India.7
This new found judicial power over legislative and administrative acts was revolutionary in many ways. For the first time in the history of India, there were wide grounds to challenge administrative action in the courts. Not only could it be challenged on the grounds of rights violations, the High Courts were also empowered to issue writs and orders against the government ‘for any other purpose.’8 A writ was a form of relief that could be issued by a court of law. Prior to the commencement of the Constitution, the jurisdiction to issue writs existed only in the three High Courts of Calcutta, Madras and Bombay and was restricted to persons residing within town limits.9 Further, in colonial India the government was immune from prosecution. Various indemnity clauses made it mandatory to acquire the consent of the Governor General before the institution of proceedings against government officials and the courts were precluded from investigation the validity of government orders.10
The new Constitution, coupled with an expansion of government, led to an explosion of litigation before the Indian courts. Art. 32 and 226 conferred wide powers to the courts to issue directions to the government. They cost very little compared to regular civil litigation which had higher court fees. And most importantly, in a judicial system rife with delays, writ petitions took precedence over all other cases.11 Before the commencement of the Constitution, Yasin, a resident of Jalalabad, could not have moved a writ petition against the town committee and would have found it hard to seek judicial redress.
Those who would argue that the founders themselves ensured the possibility that the citizens could check the states through courts should look carefully at the behaviour of the founding fathers when confronted with constitutional litigation. Faced with judicial challenges the Constituent Assembly began to amend the Constitution to make certain areas immune from judicial interference within months of inaugurating it. The government viewed this litigious behaviour with considerable alarm and attempted to portray the litigants as vested interests blocking the path of progress. Nehru lamented, ‘We had found this magnificent Constitution… which was kidnapped and purloined by lawyers.’12
Dipesh Chakrabarty unpacks the idealization of apolitical behaviour after independence by examining the attitudes of Nehruvian state towards the political methods of the anticolonial movement. While breaking the law and Gandhian civil disobedience could be viewed as legitimate means in colonial India, now that India was a postcolonial independent state based on the democratic principle of representation through universal adult franchise, such actions were viewed as illegitimate by the government. However, over time that ‘disorder and the culture of disrespect of law’ became an integral part of Indian democracy and no political party can survive today without resorting to the street politics and strategies of civil disobedience adopted by the nationalists.13 He argues that because unlike Europe, democracy and adult franchise come to India before the ‘hegemony of a modern mix of sovereignty, disciplinary domination and regulatory power’ was established.
Chakrabarty makes a distinction between liberal constitutional politics and ‘street politics’. However, if we compare Nehru’s attitudes towards the street protestors and those who challenged his government in court, they would appear to be very similar. Both groups were viewed as seeking to undo the legitimacy of a democratically elected government that represented the people, and in the post Nehruvian era the ‘democratic government’ hit back at both suppressing people’s movements and overturning judicial verdicts and packing the courts. The founders who had given citizens the right to challenge state action, were quite perturbed when citizens actually chose to do so.
What did the possibility of judicial redress offer? It opened up a channel of communication with the state outside the electoral system. This becomes particularly important for individuals and groups who are under-represented in the political system. As a Muslim trader in UP, in a district that had witnessed both violence and migration during the partition, Yasin would have limited political channels that he could access. It is not surprising that in the years just after independence Muslim litigants are over-represented in cases challenging administration discretion. A writ petition forces a state official to appear before court and respond to the petitioner. A citizen can thus compel an unwilling state to speak to him.
In Yasin’s case, the town of Jalalabad was clearly unprepared for Yasin’s assertion of his constitutional rights. There was considerable delay in hiring a government lawyer, since the municipality had no budget for litigation expenses, never having dealt with legal challenges before.14
Litigants like Yasin were encouraged by the attitude of the courts. A study of the Supreme Court in the mid-sixties revealed that two thirds of cases involved some level of government on one side and an individual or private party on the other side. The government lost 40% of this litigation. Moreover, in 487 of these 3,272 decisions, the validity of legislation was explicitly attacked by the private party to the dispute, and in 128 of these instances the legislation was held unconstitutional or otherwise invalid in its entirety. As one researcher concluded, ‘few, if any, other governments in the world fare as poorly in encounters with their citizens before the nation’s highest judicial tribunal.’15
I do not mean to suggest that the courts provided a haven for the people, in fact, both the process and outcomes of litigation often leave litigants worse off than before. However, citizens win almost as often as they lose, and the sheer unpredictability of the process keeps the constitutional promise alive. As E.P Thompson argues, the essential precondition for the effectiveness of law was its function as an ideology, for which it had to display a certain degree of independence. The fact that the state could and did lose often in the legal process kept the Constitution accessible to popular imaginations.
Constitutional access in the absence of effective legal aid is uneven, those with social and economic capital can take greater advantage of the system. However, social capital was not always reducible to economic class. Yasin was not a wealthy man. Local tax records show that his father, Niamatullah had asked to be excused from paying taxes because it was difficult to support his household of eight members of the family on an income of Rs 150. Yasin’s decision to go to court was a calculated risk, influenced by the fact that the municipal regulation effectively shut down his business and that other people in neighbouring towns had been successful in bringing similar action before the courts. Yasin’s petition refers to two cases before the High Court and Supreme Court involving Muslim traders suing the municipalities within the same district.16 The fact that both petitions had been successful improved Yasin’s chances of success before the courts.
Thus, information is the critical capital required to access the Constitution. The role played by lawyers in the spread of this information has been understudied, but the spurt in legal publishing just after independence suggests that Indian lawyers were making concerted efforts to understand the new order that had come into being. Lawyers who advised their clients to ask for writ petitions were not acting out of benevolence; like every professional group in a capitalist society, they were seeking to create and control a new market for their services.
The process of constitutional litigation of course works in two ways. On the one hand, it forces the state to be accountable to the people and, on the other, it requires people to submit to a state institution (the judiciary) and become citizens through participation in a constitutional exchange. Lawyers have often been compared to robed priests, but when expanding the market for their services, they also become missionaries of the Indian republic.
Yasin’s petition argued that not only did the new byelaw limit his right to carry on trade and business as protected by Art. 19, the town committee had no authority to impose a fee for the sale of vegetables. The committee’s contention that the fee was in lieu of the vegetable farmers and the customers using the municipalities roads to access Yasin’s shop was summarily rejected by the Supreme Court, which held that Yasin could not be charged a fee for the use of a ‘public’ street. It held the new byelaws to be an illegal imposition that infringed the unfettered right of a wholesale vegetable dealer to carry on his occupation, trade or business which was guaranteed to him under Art. 19 (1) (g) of the Constitution. Central to this debate was the ‘public street’ and competing ideas of who had rights over it, the state or private citizens.
How accessible was the language of rights and constitutionalism to the world outside the courtroom? The case clearly had special meaning for Yasin and his neighbours. Even before the Supreme Court had arrived at a decision, Yasin’s friends hired Nanu, a dalit town crier, to beat the drum and announce across Jalalabad that there was a case between ‘the public and the town, the public has won and the town has lost.’ The town area committee was outraged and wrote to the Supreme Court urging Yasin be charged with contempt.17
As early as 1950, a popular language existed which could allow an individual’s claim against the state to be translated as a ‘public claim’ against the state. Thus, to paraphrase Hannah Arendt, the constitution emerges as a hybrid realm where ‘private interests assumed public significance.’18 This challenges the neat compartmentalization of litigation as a form of politics available only to the elite. Most marginal citizens forced to confront expanding state power had no choice but to access the constitution, and often use and understand it in ways opposed by the state.
With the growth of public interest litigation, the dilution of locus standi rules and the introduction of epistolary jurisprudence have widened constitutional access. Since the early ’80s, the Supreme Court has allowed individual letters or even postcards to judges to be treated as petitions. While the number of letters that get admitted as petitions remain minuscule, the Chief Justice himself gets close to a hundred letters a day asking for relief that is specific (release from prison), to the improbable (claims of marriage to film actresses). The constitutional courts appear to project older idioms, of personalized justice being delivered by the durbar. Emperor Jahangir had a ‘chain of justice’ hung before his palace gates which any aggrieved subject could pull to demand the emperor’s intervention. Mughal decisions, like those of the courts, were both erratic and dramatic.
What is the relationship of the Constitution of India to the Indian people? Given the diverse experiences of Indian peoples the question is hard to answer, but it is clear that the Constitution has evolved in ways that its founders did not expect it to, or were opposed to, and this change in direction often came from below. The express provision for judicial review of laws and administrative action in the Constitution was a radical break from the past. It provided an opportunity, in a period of expanding state power for citizens to force the state to engage with them.
Judicial activism to curb executive excesses is often attributed to the judges, but judges are only able to act upon cases when citizens bring them before the court. Constitutional litigation often tends to be explained in terms of conflict between the executive and the judiciary or a matter of high politics, but at the centre of every constitutional case are individuals who are facing-off against the state. A bottom up view of the Constitution would therefore suggest that the Constitution is not just a document prepared by an Assembly in 1950, but a continuous conversation between the citizens and the state.
1. Nivedita Menon, ‘Citizenship and the Passive Revolution: Interpreting the First Amendment’, in Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution. Oxford University Press, New Delhi, 2008, pp. 189-211
2. Partha Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse? Third World Books, Zed Books, London, for the United Nations University, 1986, p. 181 (p. 30).
3. Sunil Khilnani, The Idea of India. Farrar, Straus and Giroux, 1999, p. 39.
4. India Const. art.19, §2.
5. See part IV of the Indian Constitution.
6. Reform of Judicial Administration, Law Commission of India, 1958, p. 673.
7. Rajeev Dhavan (ed.), Nehru and the Constitution. N.M. Tripathi, Bombay, 1992, p. xxxi.
8. Art 226 (1) Constitution of India, 1950.
9. Even this limited power to issue writs was a site of contestation between the colonial government and the executive, see Lauren Benton, ‘Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State’, Comparative Studies in Society and History 41, 1999, pp. 563-588.
10. For example, S.270 of the Government of India Act, 1950; S.197 of the Criminal Procedure Code, 1898, Sections 16 of the Defence of India Act, 1914 and 1939.
11. Reform of Judicial Administration. Law Commission of India, 1958.
12. Parliamentary Debates, Vol.12, part 2, col.8832, 16 May 1951.
13. Dipesh Chakrabarty, ‘In the Name of Politics’: Democracy and the Power of the Multitude in India’, in Dipesh Chakrabarti, Rochona Majumdar and Andrew Sartori (eds.), From the Colonial to the Postcolonial: India and Pakistan in Transition. Oxford University Press, New Delhi, New York, 2007.
14. Mohammad Yasin v. Town Area Committee, Jalalabad, Writ Petition 132 of 1951, Supreme Court of India Record Room.
15. George Gadbois, ‘Indian Judicial Behaviour’, Economic and Political Weekly 5, 1970, pp. 149-166.
16. Mohd Hasan v. Notified Area Committee, Kandla; Rashid Ahmad Khan v. Municipal Board, Kariana, AIR 1950 SC 163.
17. The court chose to disregard this request.
18. Hannah Arendt, The Human Condition. University of Chicago Press, Chicago, 1958 pp. 34-35.