Book review: Rohit De,A People’s Constitution: The Everyday Life of Law in the Indian Republic and Gautam Bhatia,The Transformative Constitution: A Radical Biography in Nine Acts

The writing of a constitution has often, with much fanfare, accompanied a transition to a democratic form of government. In fact, more recent waves of democratization have even been defined in terms of constitutionalism, thus emphasizing the importance of constitutions. Some advocates of constitutionalism and the rule of law argue for a democratic government limited by a constitutional regime of individual rights, whereas others who see democracy in terms of the sovereignty of the people question the restraining of the popular will through the judicial interpretation of constitutional provisions. Questions such as the following remain contentious: what purposes have constitutions served in democracies, and what kind of relations between the state, the individual citizen, and the community are constituted by them in a democratic context?

In the two books under review, many of the questions about the nature of constitutions, specifically about the Indian constitution, are answered similarly. The titles of the two books are indicative enough: both De and Bhatia read the Indian constitution as an attempt to change for the better the lives of the ordinary people of India. De sees the constitution not as an elite text distant from the common people (‘the constitution did not descend on the people’, p. 3) but as a document that ordinary people have used to protect their rights. This process began as soon as the constitution came into force in 1950—De quotes from a report that the chief minister of the state of Hyderabad wrote in 1951: ‘An extraordinary tendency has been noticed recently for all sorts of people to take cases to the High Court citing provisions in the constitution relating to what are termed fundamental rights’ (p. 9). For De, the constitution did not only set up a regulatory state; it also enabled ‘marginal’ and ‘subaltern’ and ‘minority’ citizens (along with the maharajas and property owners) to challenge the laws of the state by using the writ petitions provided by the right to constitutional remedies. Bhatia also presents his reading of the Indian constitution as a transformative constitution – the constitution not only established a new order of citizenship to replace the earlier one of subject-hood vs a vs the state, it ‘was transformative in a second sense’ – in that it was also an attempt to tackle ‘horizontal discrimination, i.e., discrimination suffered by private entities at the hands of other private entities’ (pp. xxv, 115). Bhatia contrasts his reading of the constitution as a transformative document to those who see it more in terms of continuity, and as an evolution. For both these writers then, constitutionalism is not a way of restricting the will of the people, in a democracy, for social change; instead, they offer a reading of the Indian constitution as used by the people, and interpreted by the judiciary, to advance the rights of the average person in India.

To defend their argument about the nature of India’s constitution, both De and Bhatia use analogous strategies—they marshal a series of significant court cases, in which arguments were made citing provisions of the constitution. De points out that he is the first researcher to gain access to the Supreme Court of India Record Room which stores the entire proceedings of all the cases that come before the Supreme Court. De spent ‘nine months in 2009–2010 working through the original petitions and documents of constitutional cases from the 1950s’ (p. 240). His method is not to concentrate on the judgements given in these cases, or on who won the case, but on the ‘citizen litigants’. De has organized his book into four chapters, each chapter taking up one of these cases, from the first decade of the promulgation of the constitution, as an illustration of how the ordinary citizen felt empowered by the constitution’s provisions to challenge the laws of the state. The third chapter, for instance, is about the Hanif Qureshi case (1958), where ‘five different writ petitions’ were filed in the name of ‘more than 3,000 individually named petitioners’, close to 90 per cent of whom ‘identified themselves as members of the Qureshi community who worked mainly as butchers’ (pp. 124–125).

Bhatia on the other hand, uses the judgements given in nine court cases (such as Anuj Garg v. Hotel Association of India, 2008; PUDR v. Union of India, 1982; Jyoti Babasaheb Chorge v. State of Maharashtra, 2012; and six others) to mount a discussion of how the courts in India have been able to take up a transformative reading of the articles on fundamental rights in the constitution. Bhatia spends three chapters each on how Part III of the constitution on fundamental rights fulfills the Preamble’s promise of equality, fraternity and liberty and on how the nine judgements he has identified interpret the meaning of these articles in terms of non-discrimination, inclusiveness and dignity. When discussing the constitutional value of fraternity, for instance, Bhatia points out that the judgement he is focusing on sees fraternity as ‘committed to a rich vision of substantive equality and freedom both between and within communities’ (p. 158). For Bhatia these judgements are part of the ‘contrapuntal’ canon, because some of these are dissenting opinions, and some are cases not considered important enough to be part of the traditional canon.

Both of these books are a valuable contribution to the field of constitutional studies. Today, when we have to consider constitutional democracy and electoral democracy as sometimes conflicting aspects of our representative governments, we certainly need a focus on how specific constitutions have been able, or can be read in a way so as to take the project of strengthening democracy in the form of equal rights forward. Both writers defend this reading of the Indian constitution by looking at both an extended frame—the long struggle for independence, along with several accompanying social movements that culminated in the writing of the constitution, as well as the immediate frame, that is, the deliberations of the Constituent Assembly. Both writers have captured well the ‘polyphony’ that characterized the Constituent Assembly debates. These debates are such a rich resource for arguments about the construction of democracy in India, and in both these books we also find a careful and detailed presentation of some of these debates.

Although they agree on several positions, as detailed above, Bhatia and De seem to have one significant difference in their work. For Bhatia, the state is also ‘a necessary enabler of individual freedom’ (p. xxxii) in contrast to the community which constrains the individual in India. It is the state which follows the provisions of the constitution to prevent communities from practicing exclusion against other groups as well as against their own members. In contrast, for De, the citizen litigant is able to challenge the laws of the state due to the support he or she gets from the community to which he or she belongs, this community being not so much a cultural entity, but a group engaged in the same profession, for instance, a caste group with the same occupation. Since the modern state has become a powerful institution, how can the individual citizen ensure that the power of the electorally dominant state is in the service of equality, fraternity and liberty?

If we consider the arguments of the republican tradition that Bhatia himself cites, this tradition pitches for contestatory democracy against electoral democracy, with the sovereignty of the people lying not in electoral authorization but in the contestability by the people of governmental action. For this contestation, the individual will need the support of others, and this support can come from movements and from communities.