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If any one book defines the society and politics of the republic of India, it is the Constitution. This tome was the product of debates and discussions among various sections of the national leadership that lasted for over three years. The Constitution is by no means a document that is cast in stone. It continues to be debated, contested, amended and even threatened. Amartya Sen’s celebrated argumentative Indian is constitutive of the Constitution of India.
The outstanding novelty of Rohit De’s book is the revelation that the debates and challenges that surrounded the Constitution from its very inception were not always the work of the enlightened elite — erudite lawyers, political leaders and intellectuals. Ordinary citizens of the republic read and interpreted the Constitution in their own way and often to their own advantage. On the one hand, De’s account shows the vibrancy of democracy in India in the early years of the republic and, on the other, it also makes clear how the people of India made the Constitution their own. In this sense, the Constitution of India is a book of the people of India — of them and for them, but alas not by them. It was the work of the nationalist elite. The Constitution emerged, in the words of De, “with alien antecedents that was a product of elite consensus [but] became part of the experience of ordinary Indians in the first decade of independence”.
The challenges to the Constitution in the first decade were all located within a particular tension that the text carried. While constitutional traditions sought to protect individuals and their rights from the infringements of the state, the Indian Constitution also empowered the state to transform society and the economy. Explicating the point, De writes, “The new fundamental rights could be constitutionally circumscribed on the grounds of maintaining the sovereignty and integrity of India, the security of the state, good foreign relations, public order, public health, and decency and morality among others.’’ De quotes the sole Communist Party member of the Constituent Assembly, Somnath Lahiri, who remarked that “many of these fundamental rights have been framed from the point of view of a police constable”.
A People’s Constitution: The everyday life of law in the Indian Republic
At the core of the book is the interface between attempts on the part of the state to enhance its powers and the efforts of citizens to protect their fundamental rights against encroachments by the state. This led to a series of litigation. De builds his argument through a series of cases relating to prohibition, economic controls, cow protection, prostitution and so on. Most, if not all, of the cases that De refers to were brought to the court by ordinary — or in De’s phrase “marginal’’ — citizens.
Without going in to the details of the cases that De digs up, there are two general points that need to be highlighted. One concerns the sources from which De constructs his analytical narrative. These sources emanate from an archive that remained untapped till De gained access to it in 2010. The sources lie in the Supreme Court Record Room, which is located in the basement of the apex court of India. This archive “stores the entire proceedings of the cases: the arguments made by the lawyers, the affidavits and evidence produced before the court, transcripts of witness statements, maps of crime scenes, the occasional bloodstained physical evidence, and so on”. De rather tellingly calls this a “secret’’ archive: unknown and therefore unused. At the heart of the book is the mining of this archive and it is this delving that gives to De’s book the character of a solid work of history. The writing proceeds from documentary evidence to a layered analysis. It is an exemplary piece of historical scholarship and history writing.
The second concerns the broader implications of the analysis that De presents. The intervention made by the first six volumes of Subaltern Studies argued and demonstrated the point from many different angles, that in the making of the republic of India, the Indian elite or the bourgeoisie — call it what you will — that led the Indian national movement and in the process created and wrote the Constitution of India, failed to speak for the Indian nation. This is De’s point of departure. But he shows that the people of India, once the Constitution had been accepted as the book of the new-born republic, did not remain handcuffed to the Constitution (to slightly alter a celebrated phrase from Salman Rushdie’s Midnight’s Children). The common people of India, left out from the process of constitution-making, grasped the book to make it their own by picking out some of its embedded fault lines. Through this process, the people of India also attempted to displace or disrupt the location of power. De restores agency to the citizens of the republic in its early years. All too often — and certainly in the first decade of independent India — the people are seen as the objects/victims of state power. De shows that they were active agents, subjects who tried, with the new rights given to them by the Constitution, to refashion their own lives and even refashion the Constitution. De’s book holds up a mirror to all those who belittle the Constitution by seeing it as a document largely irrelevant to the lives of the common people. De also inflects the arguments of the early subaltern historians: at its birth the post-colonial state may not have spoken for the nation but very soon after the people of India ensured that their voices were heard. The Constitution was one of the vehicles they used for this articulation.
De’s analysis is in an indirect way the repository of hope since it shows through a carefully crafted history that the people and their awareness of their own rights cannot be taken for granted or ridden roughshod by the state and by political parties. The people of India have made the Constitution their book and only the people can rewrite the book. De has written a significant book on a very important book and how it was interpreted. Both books
— the Constitution and De’s — have critical resonances for the interesting times in which we live.
The reviewer is Chancellor and professor of history, Ashoka University