On the 27th of December a NYT Op-Ed asserted that 'Following the partition of the Indian subcontinent in 1947, India resisted a total exchange of populations with Pakistan and encouraged Muslims to remain. Millions did. India also enabled those who had left for Pakistan in 1947 to return home.'
This will come as a surprise to many Pakistani families who recall having to flee Hindu majority regions to avoid being killed. Some tried to return to reclaim their property and re-settle in India as Indian citizens by birth. They were prevented from doing so by ordinances passed by Prime Minister Nehru and approved by the Constituent Assembly. On July 14, 1948, India unilaterally introduced a permit system on its western frontier, promulgating the ‘Influx from Pakistan (control) Ordinance” which made entry into India without a permit a criminal and punishable offence. In a tit-for-tat response, the Pakistani government on October 15, 1948 introduced the “Pakistan (Control of Entry) Ordinance 1948” along the same lines.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.
Rohit asks us to believe that young Muslim vegetable vendors spend their time 'praying for mandamus' rather than doing namaaz in mosques. In Britain, when the Duke of Westminster had a legal problem he was obliged to consult a solicitor who would instruct a barrister. In India, young vegetable sellers didn't just know their onions from their carrots, they were equally informed about mandamus and certiorari.
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.
It was enough to show the regulation was ultra vires. Had it not been so, Yasin's 'fundamental rights' would have been irrelevant. This was established by the First Amendment.
The plain fact is, that vegetable vendors like Yasin had been complaining to the Qadi or Muhtasib or the Dewan or the Dipty or whoever the fuck was in authority, about cases like this for thousands of years. The fact that some lawyer got involved and the Supreme Court heard the case changed nothing on the ground. Who fights City Hall? If you take them to Court, they will just find some other way to fuck you up.
Incidentally there are other cases involving people born in India with names like Mohammed Yasin who had crossed over to Pakistan in panic in 1947. When they returned and settled down, some were arrested and deported even if they went to Court. On the other hand, by paying a small bribe or promising to vote in the right way, this sort of unpleasantness could easily be avoided.
People named Mohammad Yasin or Michael Pinto or Mohan Patel knew then and know now that going to law is the stupidest thing you can possibly do. If a lawyer catches hold of your dhoti, run away naked. Don't listen to him or get embroiled in his toils. In this particular case, a Muslim lawyer gained a little in the way of reputation. No great blow was struck for vegetable-vendors everywhere. Incidentally, the surname 'Gandhi' means 'vegetable-seller'. The Mahatma gained salience in Indian politics by denouncing lawyers and Courts and urging Indians to wholly boycott the Legal System. No political party with any substantial vote share in Independent India has ever suggested that lawyers and judges aint utterly shite.
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.
This is nonsense. Under Dyarchy- i.e. up to 1937, the impugned regulation would have been struck down by the District Magistrate. Indeed, somebody might have been sent to jail or been subjected to a fine. So, what is really happening here is a story about legal remedies become less effective, more distant, and subject to such extensive delay as to render the action infructuous.
In this particular case, the 'monopolist' was appointed on a yearly basis and kept the profits for a couple of years before the license fee itself was abolished. The mistake made by the court was to think vegetables are homogeneous and that vegetable growers don't have special relationships with particular wholesalers. The 'monopolist' was correct when he said that there had been no restriction on trade. The Town auctioned off a right to take a percentage of sales by wholesalers so as to have cash in hand and not have to bother about monitoring sales. The court argued that all the vegetable growers would only sell to the monopolist. This wasn't true. The guy was new to this type of work. It was in his interest and that of the consumer and the farmer that better quality vegetables were sold to the wholesalers with established relationships with the better sort of farmer and the retailers in the higher income areas. In effect there was price discrimination and an ad valorem tax. The licensee was taking a gamble that his collections would be more than he paid to win the auction. In other words, the Supreme Court did not understand basic economics and came to the wrong conclusion. This did not matter because the tax was per se illegal. No doubt, something else replaced it. But the Supreme Court was not concerned with what happened to people in Jalalabad or other such places. They had merely proved that the Law is an ass.
Where did this new constitutional order emerge from?
The Brits. Westminster kept passing Acts regarding India's constitution. They had also held three utterly useless Round Table Conferences. After elections in 1946, the Imperial Legislative Council was replaced by the Constituent Assembly which was the central legislature. It took its time rehashing the 1935 Act and added in things from the Nehru Report while removing some concessions previously given to the Muslims. Otherwise little changed save that Hindus were more firmly in the driving seat and got cow protection and Hindi in the Devanagari script as the National Language and stuff of that sort. India need not have bothered to have a written constitution but, I suppose, the Hindus and Sikhs wanted to put the boot into the Muslims and show them who was boss. Ambedkar had no problem stripping non-Hindu Dalits of affirmative action.
Israel's Constituent Assembly never got round to writing a Constitution because it was politically more unstable. Anyway, it kept killing Palestinians or Egyptians asymmetrically any time they sent terrorists over the border. You don't need a Constitution if you are physically eliminating your enemies.
Burma was quicker off the mark in getting out a Constitution than India while Pakistan was much slower. This made no difference to anybody whatsoever. Since the Army didn't intervene in India, the Indian Constitution remains with us whereas the Burmese and the Pakistanis have run through two or three Constitutions since then.
Interestingly, in Pakistan, there was a 'judicial coup' against the Constituent Assembly. A Chief Justice said it had no authority whatsoever. The Governor General had inherited unlimited power from the Viceroy! Since the Army- Ayub Khan had been promoted over the heads of senior officers- was loyal to the Governor General, the CJI supported him and said that the Constituent Assembly had no power of any kind. This was termed the 'doctrine of necessity'. In other words, it is necessary to do whatever the guys with the guns and the tanks tell you to do.
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.
Whereas De's fictions are only convenient to virtue signalling cretins who pretend that India welcomed Muslim migrants and granted them citizenship when, the truth was, it participated in ethnic cleansing just as enthusiastically as Pakistan. True, there was no anti-Muslim in the far South but then, the Baloch protected the Hindus in their midst.
‘The people’ had a limited role in the drafting process.
Just as in America.
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.
So what? Constitutions don't matter. Justice is a Service Industry. It got worse as the Brits withdrew because the Indian legal system is English to the core. Americans, on the other hand, were themselves descended from English people and spoke English as their first language.
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 Law is a Service industry. It may have a written or an unwritten Constitution. But, if it does not 'pay for itself'- i.e. yield more utility than it costs- then it is irrelevant. That's what determines legitimacy. I may say 'I am the legitimate husband of so and so.' However, if everybody except me is fucking the person in question and what is more she lives far away and has no memory of ever having met me, then my claims in this regard are wholly irrelevant.
Still, if I live in India, I might pay a little money to a lawyer to file a writ petition on the basis of the violation to my rights constituted by Beyonce not sending me some cash to buy whiskey. If some crazy Judge lets me jump the queue with my writ petition I might get a bit of publicity out of it.
The constitutional text indicates how the Constitution sees ‘the people’ but how does one capture how ‘the people’ view the Constitution?
They thought it was some stupid shit cooked up by crooked shysters. They wanted 'justice on horseback' and 'the smack of firm government' and the chance to rape and kill minorities and grab their property. The lawyers and judges pretended the Constitution actually meant something. But the First Amendment showed that the Government could do what it liked when it came to curbing free speech, imposing 'vote bank' based quotas, and depriving landlords, etc., of property. Nehru and his Planning Commission created a comprehensive 'license-permit Raj' far more tyrannical and arbitrary than that faced by an 'vegetable seller'. Fuck could the Judges do about that? Nothing at all.
Political scientists writing on the postcolonial Indian state have been suspicious of the claim that the Indian Constitution ushered in a new order.
Because it is nonsense. It is obvious that power passed from Civil Servants, who did care about the Law, to politicians who made the fucking Law and then fucked it in the ass.
Drawing on the Gramscian notion of ‘passive revolution’,
Wavell, who was an actual soldier, said much of India had become ungovernable. Whites should be evacuated. Gramsci was as stupid as shit. People who draw on him are coprophagous cretins.
they suggest that there is a degree of continuity between the colonial state and the Indian republic despite independence and elections.
The INC was set up by an ICS officer who became a Vedantist and a believer in cow protection. It is obvious that there was 'continuity'. The Nehrus had been kotwals under the Mughals and then Vakils for John Company before ending up as Presidents of the INC.
This draws upon the failure of the postcolonial state to bring about the massive social and economic transformations that it promised.1
Why not draw upon the failure of these cretins in academia to engage with reality? I mean, its funny if a fucking American writes nonsense about India. But once you get Indians eager to escape India by writing American style faux-Lefty shite about India, the thing is merely sad.
They argue that the emerging bourgeoisie
had fully emerged by 1900. The Brits weren't handing out Knighthoods to beggars.
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).
They could kill Muslims and Commies well enough. That was all that mattered. The problem was that Indians were stupid enough to believe the myth that Central Planning had magic powers. But there is a twist to this tale. People like the Tatas had been following what had happened in Japan and China since the second half of the Nineteenth century. Japan had first created heavy industries in the public sector before privatizing them thus creating the zaibatsu. That was what the plutocrats hoped would happen in India.
It was also possible that big Agricultural Estates would actually expand while being run by a cadre of professional agronomists. Guys like Kurien, obliged to return to India and work in the boondocks under the terms of their GoI scholarships, might boost income for plantation owners or commercial dairy farms even more easily than they did so for co-operatives. Indeed, this was the real rationale for neglecting agriculture in the Second Plan.
As for hobbling the wage good sector, that was about curtailing the political power of the 'Banias' and Marwaris and so forth. As Nehru said in his autobiography, India needed to be Brahminized. The reign of the Bania must be curbed. Also, sodomy and wine were brought to India by Muslims only. Now they have been put in their place, Indians will drink only nariyal-panee and not Brandy-Soda because that sort of thing always ends up with your taking it up the arse from the entire Bhopal Hockey Team. I'm not saying that's what happened to me. As Firaq Gorakhpuri so often said, it's the sort of thing which can happen to anybody.
As a result, a gap arose between the elites comfortable with Weberian rationality
Weber was stupid, ignorant and utterly mad. He was not able to fuck his wife and so, after he died, she built him up into some sort of great sage. The plain fact is the American 'spoils system' was better than the German bureaucracy. The Americans only got rid of it after some guy who didn't get a job shot, or failed to shoot, some President or the other.
and the people whose everyday discourses were not structured by formal rationality at all.
Because it is rational to talk about 'Weberian rationality' right? Wrong. The guy had shit for brains. His brother was an okay economist but Weber was utterly shit at everything.
This explains the failure of the state to implement its policies successfully.
Fuck off! Nehru's policy was to pretend Budgets don't matter. Infinite resources are always available which is why, if you make a Plan to have lots of White Elephants all over the place, that is exactly what you will get. It is not true that you will run out of money and have to declare a 'Plan holiday' while begging for food from Uncle Sam.
The conventional understanding is that most citizens remained outside these elite conversations altogether,
No. The conventional understanding was that Mahalanobis and other such Bengali nutters were useful because they didn't get, or didn't care, that 'Licence Permit Raj' was about creating rents and squeezing out the British Managing Agencies. Anyway, 'Free Food' means lower prices for foods and thus 'dominant caste' agriculturists will be poorer and weaker while 'Free Money' meant 'trapped dollars' which would be used to send your kids to Amrikan Collidges.
and were puzzled by its terms.
How could they be puzzled by terms used in conversations they didn't hear?
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.
What are those limits? Rohit obviously finds a lot of English completely unintelligible. It would be useful to find out what limitations apply to cretins like him. No doubt, they are a side-effect of coprophagy.
To be fair, Nehru spoke good Hindi and was actually more intelligible in that language. The problem was that his Economic policy wasn't just incoherent. It was utterly mad. Still, you could say 'we are fucking up the economy for the same reason we did our best to fuck up British rule. Anybody smarter than us will run away the way the Brits ran away. As for food, Uncle Sam will send it. We should concentrate on biting the hand that feeds us.'
This understanding presumes that it is the state which has to bring people into the conversation.
Very true! Kotwal Sahib should stick his bumboo up our arsehole in the thana so as to have nice chat with us. The big complaint most Indians have is that policemen are not giving them a good talking to.
However, constitutional litigation became the way through which people inserted themselves into a conversation with the state.
No. Some lawyers did pick up cases and take them all the way to the High Court or even the Supreme Court. But nobody really benefitted from this. Indeed, most cases represent 'government litigation', including different Agencies suing each other. But then, the reason Britain saddled India with Constitutional law was because civil servants needed a remedy to arbitrary action re. their promotions or pensions or getting blamed for stuff with was not their fault.
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.
Nonsense! You use various historiographical and statistical techniques to determine what effect the replacement of the Privy Council by the Supreme Court had on various classes of people. The problem is that correlation is not causation. It was obvious that the Judiciary had little power to start off with and that power tended to decline.
This essay turns to Yasin’s encounter to understand how the constitution enters everyday life.
It doesn't. Try telling wifey about your fundamental right to stay in bed rather than go to work and see if this prevents her from beating you.
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
on protecting Public Sector employees and resolving disputes between organs of government and deciding on what laws or regulations were ultra vires and so on. The Constitution did not bar any traditional or customary or purely voluntary type of dispute resolution. It did not seek 'interessement' or 'obligatory passage point' status in the villages and small towns and jungles and mountains of the Republic.
America's Constitution was written at a time when 'contractarian' theories were all the rage. Indians didn't give a shit about contracts. They understood that only incomplete contracts obtain and they are better characterized as relationships. Sadly, the State thought every relationship was about getting as quickly as possible to anal. That's why the economy turned to shit and then the Chinese invaded.
sought to empower the state to bring about the sweeping social and economic changes that the Congress-led political struggle had aimed for.
Congress was concerned with sweeping political, not socio-economic, changes. The Communists pretended to be for sweeping socio-economic changes. The trouble was, an agricultural country which is dependent on American charity to stave off famine, is one where 'sweeping change' involves periodically removing emaciated corpses from the streets. If even a Suhrawardy can cause a big Famine, why bring in a Stalin or a Mao?
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.’
No. Remedies for rights violations were limited. But remedies don't depend merely on what the Bench or the Legislature says. It depends on the actual, physical, enforcement of relevant Hohfeldian immunities. Constitutions don't matter if the State is too poor or shitty to protect its people.
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.’ This agenda for modernization, industrialization and secularism led to a massive increase in the powers of the federal government.
No. The opposite is the case. Hindus decided they needed a strong centre to deal with the salami tactics of the Muslims and the Commies. Also, Congress wanted to show it wasn't Gandhian at all. It was modern and scientific. Nehru wanted to steer it towards a more red-blooded Socialism. However, it was Nehru's decision to put the Planning Commission above the Finance Ministry which concentrated economic power in the hands of the PMO and thus corruption to flourish while productivity stagnated.
The Constitution empowered the state to create a ‘command economy’ through nationalization and regulation.
The State already had that power. Anything Westminster could do, Delhi could do with or without a written constitution.
The new byelaws of Jalalabad were a part of this larger move to bring the economy under governmental control,
It already was because of a little thing called the Second World War.
where in the interests of raising revenue and regulating the market, individual rights could be undercut.
Just as they were in the UK. Churchill may have fulmined against the nationalization of steel (which was profitable at that time) saying it went against the unwritten constitution but he was clearly wrong. The Tories denationalized Steel and then Labour renationalized it and then the Tories denationalized it and, under Corbyn, there was talk of Labour renationalizing it. The problem is that maybe Treaty law is superior and thus a check on Parliament. We will have to wait and see how this pans out. Still, there can be no doubt that the Indian Constitution neither diminished nor enhanced any power of the Central Government. Westminster had passed on to the Legislature in New Delhi, its full and absolute supremacy.
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,
It would continue to stagnate under the Dynasty. Thankfully autocracy is tempered by assassination.
our legislatures are now trying to advance the nation in all directions.
Okay. That's genuinely funny.
'In their zeal to achieve quick results, they have not infrequently enacted legislation interfering with the vital and daily functions of the citizen.
By 1958, it was obvious that only Budgets matter- Plans don't. Why? When the State runs out of money, it has to cut its coat according to its cloth.
While the Constitution greatly expanded the state’s reach and authority, its framers also provided for a judicially enforceable Bill of Rights
which turned out to be sparser and shittier than those provided by the Brits
and brought in judicial review of legislation, ordinances, rules and administrative action.
which were useless.
The move was surprisingly uncontroversial, perhaps given the absence of a strong tradition of judicial inference with the executive branch in colonial India.
But, after Independence, the first Amendment very quickly put the Bench in its place. Nehru did have to be more cautious because a mass resignation of Judges could have undermined his position in the early Fifties. However, his daughter had no such scruples after the 'garibi hatao' Indira wave.
This new found judicial power over legislative and administrative acts was revolutionary in many ways.
No. The first Amendment showed there was no fucking judicial power. Judges were welcome to resign.
For the first time in the history of India, there were wide grounds to challenge administrative action in the courts.
This is nonsense. Zamindars and indigo factors and various other vested interest groups had been challenging not just administrative but also legislative measures for a hundred years. It took five years, starting from 1947 for Bihar to get rid of zamindari because of legal challenges and even then the thing was a fiasco. In British India, the Law was a service industry such that those with the resources to control territory or conduct an enterprise could pay a little extra to do so in a legal manner. However, this did not mean that they themselves complied with the law- e.g. keeping records of transactions. This often meant that the Government had no independent way of verifying what was actually happening on the ground.
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.
Indian politicians had not been particularly bothered with this issue. It was obvious that a political solution to any particular problem was better than having to rely on a judicial remedy.
Further, in colonial India the government was immune from prosecution.
No. But, any matter not resolved politically, would have gone to the Judicial Committee for obvious reasons. Had a Federal Government been formed, perhaps the Federal Court would have been less useless.
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.
This remained the case. Section 197 protects public servants. Misconduct is a separate matter but that is an offence against the employer as well.
The new Constitution, coupled with an expansion of government, led to an explosion of litigation before the Indian courts.
Indeed. Many politicians were lawyers. Since the Law is a service industry, it would have been the interest of lawyers to have sound laws which enabled the writing and enforcement of contracts such that a virtuous circle of productivity enhancement and re-investment was created. Sadly, nothing of the sort happened. The Law became a source of nuisance.
Art. 32 and 226 conferred wide powers to the courts to issue directions to the government.
Which the government could ignore.
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.
Which is why there is such a huge backlog of cases.
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.
He got no fucking judicial redress though the Town had to cover his costs. But then it wasn't really true that he had lost his livelihood. Still, the Town first needed to have proper bye-laws before imposing what was in effect an ad valorem sales tax.
Those who would argue that the founders themselves ensured the possibility that the citizens could check the states through courts
that possibility remained under the 1935 Act. It was perfectly possible for the Court to recommend the application of a remedy to any organ of the State.
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
America has dual sovereignty and a Supreme Court which limits the power of both State and Federal Government. Britain and India did not. We may say there was an expanded doctrine of political question. Essentially, so long as the administration enjoyed the confidence of the Legislature it could do what it liked. The check upon the legislature was the voter who might give them the order of the boot in an election. If an action was blocked by the Upper House or the Courts, then the Government could prevail by calling an election on that issue. The Union Government inherited these powers from Westminster. It could have chosen to give the Judiciary a bigger role but decided not to. At a later point, the Bench usurped some powers but it was utterly shit and easily ignored.
Dipesh Chakrabarty
has shit for brains.
unpacks the idealization of apolitical behaviour after independence by examining the attitudes of Nehruvian state towards the political methods of the anticolonial movement.
People who rebelled against Delhi on the grounds that the Union Government was colonial, were killed by the Army or, like Sheikh Abdullah, incarcerated more or less comfortably.
While breaking the law and Gandhian civil disobedience could be viewed as legitimate means in colonial India,
No. They were popular not legitimate.
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.
They had been illegal and remained illegal. It was legitimate to kill those who waged war on the State and to incarcerate seditionists.
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
Nonsense! What great disrespect of the law is shown by Naveen Patnaik's outfit? It is a different matter that some parties are filled with gangsters or street thugs.
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.
Why not simply say that, unlike Europeans, Indians are fucking savages? The plain truth is that India had and has a more modern mix of sovereignty, disciplinary domination and regulatory power than the United Kingdom where there are three separate legal systems- viz. that of England and Wales, Scotland, and Northern Ireland. A Supreme Court was only created a dozen years ago.
Chakrabarty makes a distinction between liberal constitutional politics and ‘street politics’.
The fucker doesn't understand that England had plenty of street politics- e.g that of John Wilkes, Lord Gordon, the Chartists, Hyndman, the Trade Unions, the Suffragettes etc. etc. Indeed, it still does. Look at the current pro-Palestinian protests. The Home Secretary says she will arrest those who display the Palestinian flag. She is laughed at. Incidentally, she is of Indian heritage as is the Prime Minister.
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.
But they hadn't given citizens any such rights! This cretin doesn't understand that no right exists unless a remedy is provided. What remedy did Nehru provide a Communist like Gopalan or a separatist like Abdullah? None at all.
What did the possibility of judicial redress offer?
If you were a Civil Servant and denied your pension or promotion or whatever, you could go to Court. Zamindars and other vested interest groups could delay things till they had made arrangements so as to escape or evade the letter of the law. The Law is merely a service industry and it serves those with money to pay. But they could always bribe or beat people instead.
It opened up a channel of communication with the state outside the electoral system.
Though bribes or beating were a better channel.
This becomes particularly important for individuals and groups who are under-represented in the political system.
If they had money- sure.
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.
A Muslim lawyer represented him- that is true- but what was the upshot? The Hindu licensee got two years of profits and, afterward, the Town authority had different bye-laws and ensured that similar Hindus remained on top in the wholesale trade.
It is not surprising that in the years just after independence Muslim litigants are over-represented in cases challenging administration discretion.
Because, at that time, there were still plenty of Muslim lawyers and that cowed community didn't yet have gangsters to represent them politically.
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.
But the citizen can't compel the Court to grant such a petition. Anyway, the 'state official' has personal immunity under Section 197 in the same manner as the judge.
In Yasin’s case, the town of Jalalabad was clearly unprepared for Yasin’s assertion of his constitutional rights.
But the people running the town were well embedded in the Congress machine which could always frustrate any decision of the courts. As Ghalib might have said 'ik tamasha hua, gila no hua'- there was merely a bit of drama. There was no redressal of the complaint.
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
The Hindu licensee had a lawyer. Anyway, delay is what the Law is all about.
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.
A study of the Supreme Court reveals that it is useless. Moreover, the Government likes to have the excuse of the matter being sub judice in order not to implement the law. There is a corrupt aspect to this. It is a different matter that the State can achieve its own objectives regardless of the Courts. This is because it has multiple ways to do so. The Court can only block one or two avenues. Anyway, its judgments can be ignored. A lot of litigation is actually between Government departments.
The government lost 40% of this litigation.
Which gave it the excuse that it needed Emergency powers and a committed judiciary or a 'total revolution' or some such shit.
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
The death of Nehru and Sastri had left something of a vacuum. A CJI- Koka Subba Rao resigned office so as to run for the Presidency against the utterly useless Zakir Hussain and did quite well. Indira however had identified the Judiciary as a good whipping boy. She brought in Krishna Iyer who was the opposition candidate to Venkatraman- the only occasion when two lefty Iyers contended for the country's top job.
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.
It enables a few lawyers to make some money and gives Judges something to do before they retire and get a grace and favour sinecure.
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.
Fuck off! A law is effective if it is incentive compatible. Otherwise there is no fucking remedy for its violation. Equally, if the law does not promote greater productivity, the resources available for its enforcement won't be available. Ideology doesn't matter. Crazy Communists or militant Islamists or hebephrenic Hindus can still concentrate on boosting productivity, in which case the rule of law improves.
The fact that the state could and did lose often in the legal process kept the Constitution accessible to popular imaginations.
No. In the popular imagination, Judges were evil bastards. Killing judges made the Naxals popular. But this also meant that Judges didn't raise a peep when the Naxals were slaughtered. Extra-judicial killing, not Constitutional checks and balances, preserved the Republic.
Nobody gave a fuck about the Judiciary which is why Indira could shit on it. Incidentally, back then, Ambedkar was considered a lickspittle of the British. Far from being a Holy Book, the Constitution was what you wiped your arse on to show your commitment to removing poverty or having a total revolution or whatever.
Constitutional access in the absence of effective legal aid is uneven, those with social and economic capital can take greater advantage of the system.
Not unless they bribe Ministers and Civil Servants. The law is merely a nuisance.
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.
The opposite is the case. Muslims of a higher class than Yasin's had lost power and prestige because of Partition. Some Muslim lawyers were fighting a doomed rear-guard action. Hindus went on to establish a complete stranglehold on the wholesale trade. Muslims, at a later point, resorted to rioting and rallying behind gangsters who could deliver votes to the ruling party- whichever that might be.
Thus, information is the critical capital required to access the Constitution.
No. Facts are needed if you want to go to law.
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.
There is some truth to this. Sadly, Indian lawyers were and are as stupid as shit. Thus they understood nothing and achieved nothing. Smart kids got into the IAS. Stupid kids became lawyers.
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 problem with bribing politicians or officials is that they might not actually do anything. Similarly the problem with paying to get a judgment in your favour is that it might not actually change anything. Sensible people emigrated.
The process of constitutional litigation of course works in two ways.
It works in the same way as any other type of litigation.
On the one hand, it forces the state to be accountable to the people and,
No. Only elections matter or, if no elections are held, the loyalty of the Army is important . But that depends on your ability to pay them. So, in the end only money matters. True, some money may be spent on politics and some on the law and some on the media and advertising but what matters is productivity. Why did the landed aristocracy lose power in India during the twentieth century? It was because they couldn't raise agricultural productivity. Why did the industrialists who financed Congress and the League lose political power by the Seventies? It was because they couldn't raise industrial productivity. Why did the Left decline? It presided over or militated for productivity stagnation or decline. Why are Adanis and Ambanis and Elon Musk and so forth riding high? They have raised productivity. Where it rises there is more money and where there is more money there is more power. It must be said, the productivity of a service industry- e.g. the Armed Forces, the Civil Service, the Judiciary, Academia etc- depends on not doing stupid shit or the other side doing stupider shit. It is perfectly possible for a Judiciary to become highly productive because it starts broadcasting sensible Aumann type 'public signals'. If it does the reverse it may have negative productivity because it increases uncertainty. Indian and Pakistani entrepreneurs found that moving to White ruled territory raised their productivity because laws and Court judgments were less fucking stupid. But they could also use capital from nationalized Banks to build and control assets in India while offshoring their own assets and escaping Indian jurisdiction in various ways.
on the other, it requires people to submit to a state institution (the judiciary) and become citizens through participation in a constitutional exchange.
This is nonsense. Citizenship is not dependent on submission to anything. Nobody is required to participate in foolish law suits. It is a different matter that you may get in trouble if you ignore a subpoena but, equally, killing process servers may render them ineffective. The Courts are useless if its officers are ignored or beaten to death.
The plain fact is, if vegetable wholesalers can't prevail over town authorities by beating them or creating a nuisance, a Supreme Court order isn't going to help them. This is because there are many many ways to skin a cat.
Lawyers have often been compared to robed priests,
we can disintermediate both priests and lawyers. They merely provide a service and, if it is crap, we go elsewhere.
but when expanding the market for their services, they also become missionaries of the Indian republic.
No. Political parties could be described in that manner. Lawyers and Civil Servants had no such role.
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.
No. Central to it was that the Town Association didn't have proper bye-laws. But the Court was wrong about Yasin not being able to run his business. Still, their decision didn't greatly matter. The State asserted its right to take over any economic activity and suppress any means of livelihood.
How accessible was the language of rights and constitutionalism to the world outside the courtroom?
That wasn't the problem. The problem was that the Judges were as stupid as shit. They didn't understand even how vegetable markets work. They thought the commodity was homogeneous. Their wives would have told them that better quality vegetables end up being sold by retailers in high income areas. Wholesalers serve a sorting function. To be fair, Indian mathematical economists in the Planning Commission were even stupider than the Judges.
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
But drummers had also claimed that particular towns in UP had been declared to be part of Pakistan. Still, it was up to the District Commissioner to take action.
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.
This happened as early as 3000 BC if not earlier. Any individual, facing the guys who controlled the local village or township could say he wasn't just out for himself. His demand represented the demand of everybody else.
Thus, to paraphrase Hannah Arendt, the constitution emerges as a hybrid realm where ‘private interests assumed public significance.’18
But 'private interests'- e.g. not wanting to pay tax or having the right to marry your sister- have always had public significance. Hannah's Aunt wrote hysterical nonsense because she had studied shite and needed to earn a little money in the country she had fled to.
This challenges the neat compartmentalization of litigation as a form of politics available only to the elite.
In which fucking universe do these nutters live in? Have they never been dragged into court for not paying alimony or having a dog which barks too loudly or for writing a bad check? My neighbour can use litigation against me for a political reason- e.g. getting me to stop displaying the Swastika on my doorstep on the grounds that I iz bleck and not a proper White Supremacist at all.
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.
Why stop there? Why not suggest that most marginal citizens have no choice but to rely upon Voevodsky type univalent foundations to deontic logic in order to access the hermeneutic tools necessary for a truly liberative access to the constitution via the anal sphincter of George W Bush for whom they always had the hots?
With the growth of public interest litigation, the dilution of locus standi rules and the introduction of epistolary jurisprudence have widened constitutional access.
to George W Bush's anal sphincter- right?
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.
So, the Bench is like a capricious drunken tyrant. It turned a blind eye to extrajudicial killing and massive corruption at every level of Government. But it responded to post cards. Did Indian people say 'CJI will give us justice', the way they used to say 'British Court will give us justice'? No. They ran away from India the same way Rohit ran away.
What is the relationship of the Constitution of India to the Indian people?
It is the relationship between the Judiciary to the Indian people. This is a dysfunctional relationship. Why? Because the Judiciary tends to reduce productivity and make contract enforcement more difficult. There is inordinate delay on both the criminal and civil side. When India was administered by British civil servants, Judges- some of whom were ICS officers themselves- had greater 'Voice'. But the civil servant was replaced by the politician who behaved more like the dynastic Prince. Thus Courts lost salience.
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,
Nonsense! Its founders were the same guys who amended the fuck out of it almost immediately.
or were opposed to, and this change in direction often came from below.
But Nehru and his daughter and grandson came from the top, not the bottom, and it was they who decided what the Constitution entailed. Mrs Gandhi made this clear when she amended the Constitution even more drastically than her Daddy did. Sadly, autocracy is tempered by assassination and so by the Nineties the Court was able to usurp power which however was not real or tangible or used for any useful purpose and thus could not burgeon with support from 'below'. More recently, the Bench has become pro-BJP because Judges realize that it is the BJP which has become the default party of Government and it is they who will hand out post-retirement sinecures.
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.
Citizens were able to get things they really wanted- e.g. linguistic reorganization of States, bigger quotas for dominant castes, etc- by taking to the streets and changing how they voted. The Judiciary was and is useless. Still, an Assamese Judge from a powerful Assamese political family could get the Nationality Register compiled and detention centres opened. But this doesn't seem to have made very much difference. In any case, the only reason Gogoi could do this was because of the Nellie massacres of the early Eighties. In other words, killing Muslims forced Indira to engage with the the killers- who were 'Students'. I suppose one could say they were practicing Constitutional law by chopping off the heads of people they considered to be illegal immigrants.
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.
No. They can take suo moto notice of anything they like. But they can also be beaten and killed or, at the least, denied a post-retirement sinecure.
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.
Very true. Some girls want to wear full hijab inside the classroom of a Girl's College. They are 'facing-off' against the state- right? This is a big constitutional question. Already there has been a split decision in a two Judge Supreme Court trial. Will 5 judges be able to decide this important question? Who knows? Who cares?
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.
This is not a 'bottom up view'. It is a view from an Ivy League Campus taken by a guy who ran the fuck away from India and who has a book to sell. This is part and parcel of a delusive type of subsidized journalism or ideological raving which pretends that Courts have magical powers. The suggestion is that it does not matter if the Left died politically. Maybe the Judiciary will do what Legislature could not. CJI will say 'everybody must get Rolls Royce car immediately!' and the State will say 'Yessir! We will immediately provide the needful!' and then all Indians will become rich as rich. Soros will embrace Gautam Bhatia and say 'tu mere asli waris ho'. He will die of happiness and Bhatia will inherit 50 billion dollars. Suddenly, all the kids who used to make fun of him and call him 'batty Bhatia' or, more cruelly, 'battyboy Bhatia' will feel great remorse. I too will dedicate a blog post to praising that donkey. But only once he becomes rich. After all, unjust enrichment is what being a lawyer is about.
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