Early constitutional litigation

Anindita: Welcome back to the DAKSH Podcast. I’m Anindita Pattnaik, a research fellow at DAKSH, a Bangalore-based non-profit working on access to justice. In this the 75th year of independence, what better time to dwell upon the history of our Constitution, one of the most remarkable outcomes of our freedom movement. I’m in conversation with Professor Rohit de, a scholar of South Asian legal history and author of the wonderful book ‘A People’s Constitution’. The research that went into this book, explores how many marginalized communities use the Constitution as a way to oppose unfair laws and have a say in how they were governed. His work focuses on the 1950s, the period right after the Constitution was passed. So this early litigation had a huge impact in shaping our constitutional values as we know them today. I hope through this conversation, we remind ourselves after 75 years, why it’s still so relevant for regular citizens like us to continue to engage with the Constitution. Welcome Rohit, it’s lovely to have you on our podcast. Your book reveals how important the Constitution is for citizens who want to challenge oppressive laws and covenants. But to grasp that, I think it’s important to know what the concept of constitutionalism is. Rohit, can you help us with that?

Rohit: Sure. So there’s a kind of standard textbook definition of constitutionalism, which is “a principle where the government is constrained according to a document or a set of ideas”. And it is not just a principle that is necessarily enforced from the outside, it’s meant to be a principle that you imbibe. So it’s come to have a more substantive intuitive meaning, which is tied to ideas like rule of law and equality before law as well.

Anindita: So if I understand this correctly, constitutionalism means that a constitution defines the limits of the government’s power, right? So it acts as a kind of check on governmental authority. So no one, not even the Parliament will be able to do something that the Constitution doesn’t allow. But to get more specific, Rohit, your book explores many situations where the fundamental rights in the Constitution act as this kind of limitation. Can you help us understand why the fundamental rights are chosen and how they have power in maintaining that check on authority?

Rohit: So the Indian Constitution, you know, at the first read is a complex document. It provides, for the first time in Indian history, enforceable, written Bill of Rights. But if we look at the specific rights provisions, and you know, this is something that when many people pick up the Constitution, are quite surprised, most of these rights seem to be constrained in a variety of ways. While the Constitution was being drafted, Somnath Lahiri, who was the only communist member in the Constituent Assembly, said that the rights are drafted from the point of view of a police constable. However, I argued in my work that even this sort of relatively constrained set of rights, were quite transformational in the Indian polity, because it allowed, perhaps, for the first time, a range of ordinary citizens to challenge administrative and legal action before the courts, and also use this language outside of the courtroom to critique or challenge government policy. And we know this is a radical step because when these cases started appearing in the theater, side 1950s, the government was quite shocked and horrified that this Constitution could be used against them. So there is an element of sort of radical transformation and what seems to be fairly small procedural innovation. So a couple of things the constitution did was it allowed any citizen to approach the Supreme Court and the High Court, not just in fundamental rights violations, but in the case of the High Courts, on any matter that required the redressal or the achievement of justice. And we can see this from the court docket. So after independence, while the number of civil cases, that is cases where two individuals sued each other, seem to decline over the years, we see an exponential increase in the number of cases that individuals file against the state. And this is both a sign of the state encroaching into many parts of individuals’ lives, but also the capacity of individuals, communities to challenge and resist state action.

Anindita: So wait, let me get this right. Say a properly elected Parliament passes a law with the majority following all the required rules, but yet this law is unfair to me. So it violates one of my fundamental rights in the Constitution. So does this mean I can now go to court and claim that the parliament is limited. It cannot pass a law that conflicts with my constitutionally recognized fundamental right. And on that basis, I can ask for that law to be struck down. That’s how our constitutional challenge works. Am I correct?

Rohit: So that is absolutely correct. But that is also constrained by your ability to know about the Constitution and your ability to gather the resources to make the legal change in the first place. So one of the striking things about the 1950s is the kind of people we see in the courts. And while they cut across a range of social classes, they broadly belong to what one would describe as an urban or peri urban area, which indicates that they had perhaps, they were more familiar with either the constitutional changes or had access to lawyers and courtrooms to effectuate the change. We see this consciousness permeating say rural areas considerably later. 

Anindita: Yes, like almost all the examples in your book have an urban focus. But anyway, let’s take your example of early regulation on sex work right after independence. Just for our listeners to have a background, the Parliament enacted the ‘Suppression Of Immoral Trafficking Act’, S-I-T-A or SITA. This Act regulated both consensual sex work as well as human trafficking. So there was this underlying assumption that all sex workers were victims of human trafficking, and that sex work could not possibly be a choice of any woman. That’s why both issues were dealt with in the same act. Even though it was actually meant to help sex workers, this really just made it very difficult for sex workers who consensually practice their trade to continue their work. For example, a magistrate could decide that a sex worker should be just banished from his or her jurisdiction, and forced to practice her trade elsewhere. And this would mean that they would be far away from the protection of their families or other people that helped them and they would have to practice in this new environment. So the grounds on which the magistrate could decide, this was vague and allowed for a lot of discretion and power in the government’s hands. So it led to situations where the police and the magistrate could harass sex workers. Right? Now, other provisions of SITA involve forcing sex workers into so-called rehabilitation homes against their will, without any real avenues for alternative employment. So it basically took away that choice to do what they could possibly do in that environment to earn their living. So as a result, one of the earliest constitutional challenges was brought by a group of young sex workers who approached the Allahabad High Court, claiming that SITA violated their fundamental right to practice their profession. So this matter, which eventually got called the Kaushalya case, reached the Supreme Court, where sex workers lost the battle. SITA actually continues to exist today with some amendments and modifications. It’s now known as the Immoral Trafficking Prevention Act. But nonetheless, Rohit, you cover this case in your book as a great example of how citizens read meaning into the Constitution that the Constitution makers themselves did not imagine. So can you give us an explanation, why?

Rohit: For the longest time, the Indian National Movement, particularly the women leaders of the Indian National Congress, were very concerned with the sort of widespread problem of trafficking in women and prostitution They recognized a variety of ways in which the colonial state failed to address it. The colonial state’s main concern was the spread of venereal disease and racial intermixing. So in some ways, it tolerated or even sort of encouraged from the prostitution. And for the ruling national movement, I mean, they saw prostitution as a form of forced labor akin to slavery or begar. And, you know, in the Constitution when the debates around begar and forced labour, it’s clear the women members imagine this to also specifically free women who are trafficked into sex work. So while this sort of comes through in the Constitution over the next few years, groups like the All India Womens’ Conference, met a lot of time enacting these new laws to curtail trafficking, but as it happens with a lot of coercive laws in practice, even though the law is framed as one that is seeking to rehabilitate the sex worker in practice, the enforcement is often violently coercive on the bodies of the same woman who are seeking to be helped. In the very few cases where customers are arrested, the easiest arrests are these women. And there’s a sort of strong sense that these are women who cannot because of either their economic situation, or because of their morals, exercise a form of agency, and these women are often sort of against their consent kept in sort of rehabilitation homes or rescue homes. I mean, there are a striking number of habeas corpus petitions that come from women who are in these rescue homes who want to sort of be released. So the day the law comes out, the very same day that a set of legal challenges filed across the country, and the one that gets debated is the Allahabad High Court judgment. And the petition flips many of these assumptions that have governed the regulation of sex work for a long time. So for instance, rather than retreating or hiding from the state, these are two young women who come out and say, “We are prostitutes, and our right to carry out our work is guaranteed under the Constitution under the freedom of trade and profession.” And they also say that what they’re doing is work. So they position themselves as the main supporters of their family, they point out how the law which sort of has a definition of a brothel is a place where any more than one woman works effectively criminalizes their home where they have aged parents and, you know, minors who live there. And they also put the burden on the state by saying, look, if the state is shutting down our economic avenues, then it needs to compensate us because it’s a welfare state, and provide us with protection. The Allahabad High Court sort of gives it a hearing, which gets covered in the press. It says a lot of things that are sympathetic to the legality of sex work. It also points out the unrestrained power that Magistrates have about the bodies of these women to sort of expel them from the neighborhood or prevent them from working. But it doesn’t actually rule on the law. So one would have assumed that this was going to be a kind of minor case, it’s Allahabad High Court, single judge by decision, they don’t rule in favor of the petitioner. However, this relatively minor case causes a great deal of anxiety not just to the government, but to social workers. And we see that as the legal argument becomes more visible, we see very similar language and petitions that are challenging the SITA Act in Maharashtra, in Andhra Pradesh, in Punjab, and the High court’s rule in various ways. In some cases, they strike down the untrammeled power of a magistrate to remove a woman from the neighborhood. In other cases, they striked out provisions that criminalize certain aspects of sex work. And it causes not just some sort of administrative confusion for the state. It also challenges the ability of certain class of elite women to speak on behalf of all sex workers to say that, you know, we speak for those who can’t speak because in the petitions, you see, I mean, one can debate as to how authentic the voices are, but at least figuratively, there is a sex worker who’s appearing before court who is speaking in her own words. It causes the kind of crisis of legitimacy for some of these activists as well. And one of the most surprising pieces of evidence I found was a letter by Durgabai Deshmukh who is, you know, a champion of civil liberties, a criminal lawyer by profession, in the Constituent Assembly, who says that, with these petitions, perhaps our notions of freedom must undergo a change, and perhaps prostitutes and beggars should not be allowed to exercise their fundamental rights.

Anindita: Yeah, that is very telling. Interestingly, in our first season of the DAKSH podcast on Women’s Day, we did an episode on women members of the Constituent assembly, which included a bit on Durgabai Deshmukh. And one of the points that came up for discussion was how difficult it is for a group of, you know, a small group of 15 women to represent all of India’s women’s expectations from the Constitution. So this example you give is like a very obvious example of how you know, these women could not have imagined the plight or the desires of sex workers in the country. But in any case, all was not lost in the Kaushalya case. laws governing sex work are somewhat more progressive now. And the starting point for that reform was this early litigation. Okay, so Rohit, let’s look at some of the other cases you’ve studied. One of them is the Bombay Prohibition Act, which punished makers of alcohol and even people possessing it. Again, like SITA, it was kind of a Gandhian morality driven legislation, which was kind of popular around the independence movement. But when it was implemented, it did not hold water. So the Parsi community, which dominated the liquor trade at the time, immediately challenged this Act in court. And now this case is famous as the Balsara case. The other example you look at is the cow slaughter bans, which were enacted in many states in the north and in Bengal. And these bans were opposed in court by the Qureshi community who were traditional Muslim butchers, who are practicing the treat of beef. Now, the most famous case among these challenges is the Mohammed Hanif Qureshi case, which is now taught in law schools to understand the right to freedom of religion. Both of these examples that you have taken work cases that were fought on the basis of fundamental rights. But the interesting thing, Rohit, is that fundamental rights, as we know, are individual rights. They’re meant for individuals to practice their own profession, or, you know, assert themselves individually as opposed to being a community right? But in both the examples that you’ve given the cow slaughter ban as well as the liquor trade, we have communities defending their entire class. So in your research, how do these communities which are so different, like Parsis are wealthy, they have access to the best lawyers and Qureshis who are like, you know, a marginalized and ghettoized community, how do both these very different communities approach this process of challenging the state? And why do they use individual rights to fight these community battles?

Rohit: Thanks. So you know, when I started doing my research, I didn’t imagine I would find these communities in there. I thought I was really telling a story about the emergence of individual consciousness and individual rights, and prohibition affected 1000s of people. So I would have imagined that there would have been challenges coming from a great variety of folks. But when I started looking at the constitutional challenges of prohibition, I was struck, you know, this is a kind of both familiarity with the indexing of names as indexing of identity, but also the petitions themselves describe the religious and caste background of the petitioners. So struck by the number of Parsi petitioners in a number of different cases that are challenging prohibition. Similarly, in the kind of Butcher’s case, while was always identified as a case brought by Muslims, it became very clear when I look at the petition that these are not, you know, it’s not a wide representation of Muslims, it represents very much a certain caste sub community amongst North Indian Muslims that are engaged in the meat trade. And I think what came through is that it’s very difficult to separate the idea of individual rights from community rights in places like South Asia. We are a caste society and our economic activities, I mean, even up to this date, are very much governed by tasks. So one could say that, you know, these are all whether it’s sort of liquor wedding, or pictures, or university professor, these are all modern professions. When you start breaking them down, you realize that the access to the professions are constrained and enabled by caste networks. So yes, of course, the Qureshis and the Parsis are very remote, both in terms of the kind of social and economic capital they have, and in terms of their sort of position in the post colonial republic. I mean, while Parsis are a miniscule minority, they don’t face the same degree of exclusion and violence through many of the institutions that as a very sort of economically marginalized subgroup amongst the Muslims too. But what is common to both is that these are communities that have many members engaged in the same trade or profession. And therefore, organizations that serve the community interest also serve the professional or economic interest of these communities. So when you see a case coming in as an individual rights case filed by a Parsi journalist who works for a Parsi newspaper, which raises the principle of like general interest, I mean, the prohibition laws are, they argue, inequitable, to all citizens irrespective of their religious beliefs. But its impact is significant on Parsi run businesses, which have been, you know, impacted by the prohibition, you can sort of start drawing those links together. In the Qureshi case, it is even more explicit, because the gestartet petition has around 3000, individually named petitioners, all of whom belong to a number of Qureshi organizations, including the All India Jamiatul Quresh, which is in some ways a community organization, they run schools, they, you know, arrange marriages, they have a newsletter, but they’re also a professional association, which is concerned about how regulations affect their trade and profession. So despite these communities being very differently placed in terms of socio-economic capital, what it underlines is that in post war in India, while rights were available to everyone, to be able to exercise these rights, you had to have some kind of networked capital, which means either someone gave you information that look, here’s the law, and here’s how you might be able to challenge it, or there was a way through which a community could raise funds. So it’s quite clear the Qureshi litigation, or even for that matter, the sex worker litigation is being run through raising funds within the community. And you had to have, sort of continuous litigation. So after one case, whether you win or lose another person files a case trying to reinforce the same claim. So one of the tragedies of the Indian Constitution is that we didn’t really sit and create a mechanism through which anybody could exercise their rights. You need to have some kind of social capital to do so. So we did not have a provision of legal aid, you know, recognized by the constitution till the 1970s. And it still remains in a very minor form today. Ideally, one should have had a kind of administrative body, like we see in several other countries, which are focused on questions like equality or discrimination, that allow ordinary individuals to sort of bring these claims and challenges. But in the Indian context, the Constitution is able to sort of build this culture because of certain particularly minority groups who are both affected by state power, but also have the resources to come together to sort of challenge it. 

Anindita: Yeah. So, in the absence of like effective legal aid, in a way, community rights were the only ones that ended up being heard, because it was possible to gather the collective resources that it took, to get a case through court, and especially all the way to the Supreme Court, it must have taken, you know, community efforts there. But it’s interesting that you mentioned the importance of repeated litigation, right, like continuous litigation, on the same issue, as a way to have your voice truly heard. I mean, matters don’t end with just one case. Because in all the three examples that we spoke about, right, the petitioners actually lost their case, but the issues that they dealt with continue, so sex work is still heavily regulated. Prohibition continues in Bihar and Gujarat and cow slaughter bans remain in force in most of the states. But all these these issues still keep coming up before the court even now. So we don’t know, maybe they will lead to some sort of a different outcome over time.

Rohit: I mean, in fact, in the book, everybody loses. I mean, if you look at it from a kind of legalistic reading, everyone loses their legal case. So the question is, is this a story of defeat? But I think if we read the finality of the Constitution as the kind of voice of the judge, that’s what the picture would show. But I think what I’m trying to show in my research is that the courts do not have the final word on how the Constitution is understood or interpreted. So for example, in the sex worker case, while the Supreme Court in the Kaushalya case very clearly rules that look, a sex work is not protected under Article 19 of the Constitution, the sex worker organization never give up the claim. So they are on the streets in the 70s, in the 80s, even now, essentially arguing in their pamphlets that their right is protected, whether the Supreme Court recognizes it or not. In the prohibition case and the cow slaughter case, what they score are small, almost technical loopholes. But these small technical loopholes allow for the everyday profession to continue, and, you know, for them to survive economically. So I think, especially today, we have to recognize that conditional interpretation and constitutional visions are not solely finalized by judges, but that citizens have a stakeholdership in maintaining constitutional meaning. And that constitutional meaning can change over time. So it requires a kind of persistence, it requires ability to sort of make these arguments before different forums. And there’s nothing sort of necessarily progressive about the idea of shifting meaning over time. So you know, if you look at the United States, there’s ways in which right wing groups have also been able to mobilize and shift Constitution meaning over time, right. So it’s kind of an open ended path. But we have to recognize that judgments are not final arbiters of constitutional meaning.

Anindita: Yeah, that’s an uplifting thought. Because as conscious and persistent citizens, maybe, we can equally lend meaning to the Constitution, not just courts. But on a positive note, out of the three examples that we’ve taken, the prohibition case or what is now known as the Balsara case is probably the most successful in a way because now the Bombay Prohibition Act is barely what it used to be. I mean, at the time that the Bombay Prohibition Act covered all alcoholic substances including what have you tonics, medicines, colognes, like a bunch of other things that weren’t really meant to be drunk as liquor. And also at that time, some people were made an exception to the ban, right, like armed forces, foreigners, royal families, they could drink liquor, but not the common citizens. So in the Balsara case, the petitioners argued that the right to equality was violated because certain groups were allowed this privilege so to speak, but not them. Eventually, the Supreme Court allowed these exceptional groups like foreigners, and the army to continue. So they lost some matters in the case. But they agreed that the alcohol meant for drinking should be banned, not other household items, like tonics and stuff. So how did it go from there to the situation now, where anyone can have a drink in Bombay,

Rohit: When I started the research, I was profoundly shocked by how invasive the Bombay Prohibition regime was. So there was a clear constitutional commitment to bringing about prohibition. In the Bombay state assembly, when the law was being passed, there were maybe two or three voices that opposed it. And it is striking that these voices are either of Parsis or of tribal representatives. And the law when it was brought into force, it had a great deal of social support, prohibition had been a part of the demand of the Indian struggle. And I think the problem emerged, because once the law began to be enforced, it did not just criminalize the making and sale of alcohol, it criminalized consumption and possession of alcohol. And it set the incentives for the police for instead of sort of focusing on large manufacturers or distributors, they went after consumers and petty vendors. And we know how very often discriminatory arrests are. So very often the poor or the marginalized, who faced the brunt of these arrests. And the numbers of arrests are astonishing. So within 10 years, there were like 80-90,000 people in prison on prohibition offenses. So the first challenge that came about was in the Balsara case, this is the one the Parsi journalist had mentioned, who attacked the prohibition law on a number of grounds. This went from, you know, you have a right to possess alcohol as part of a property, a challenged system of exemptions and permits, which for example, allowed army officers or foreigners to be exempted from prohibition rules as violating equality. And it also talked about the kind of administrative discretion that is given to the government to sort of restrict all items that contain alcohol. So prohibition not just banned alcohol that was marketed as consumable, but also banned, say a mouthwash or a cough syrup, which had a significant alcoholic content. The High Court was, again this phenomenon that we see was very much in favor of the petitioners and gave a very publicly scrutinized sort of hearing. In fact, the Balsara case, the memory of that is very much in public consciousness. Most Bombay lawyers of the generation, be it Fali Nariman or Ram Jethmalani talk about the Balsara case going on and people going in watching these debates in the Bombay High Court. However, like in many cases where the case finally goes up the Supreme Court and the Supreme Court reads down and narrows the High Court decision, basically only holding that you know, everything else is legal. The only thing that the government can’t do is ban all items that contain alcohol. It can only ban alcohol that is meant to be consumed. So one would take this as a win for the state and the Attorney General says the petitioner opened his mouth to drink but all he has this Eu De Cologne left. But we see a kind of enormous burst in the production of these health tonics cough, syrups, colognes, mouthwashes that contain alcohol and are consumed as alcohol. And we often see cases that people are arrested because the policeman smells alcohol on their breath. But the fact is that well I was actually having cough syrup. And unless you can prove that I had a prohibited body of alcohol, you can’t actually arrest me. So we suddenly see a spate of acquittal. So we see the police going out, you know, doing this provision raids every day, putting people into prison, who are then acquitted by the courts. And there’s a sense that, look, we’re losing revenue. While there’s great support for the idea of prohibition, the police had fostered a prohibition is very unpopular, because it gives the police untrammeled powers of search, seizure, and entry. And finally, the government starts saying, look, if we begin to everyone we arrest gets acquitted in court, it’s bringing the entire mechanism of law into disrepute itself. So Vasant Nayak who was the Chief Minister decides to liberalize prohibition in Bombay. I mean, Bombay, technically still has the Prohibition Act in place, but it’s been loosened in such a way that effectively almost anyone who wants to consume alcohol can.

Anindita: Just one final thought, Rohit. to pick your brains about is live streaming of court proceedings. So right now we’re in the midst of this Amber Heard and Johnny Depp trial, though it might be ancient history by the time this episode comes out, but it shows us how, you know, this trial has captured the imagination of ordinary people who are getting to see legal processes and examine them and you know, get a feel of what things are like in court. So do you think it’s a good idea to livestream constitutional case hearings in India? Is it the modern way of enhancing citizen engagement with the Constitution?

Rohit: Absolutely. I think there’s a lot of precedent for it. And I think it’s important that you specified constitutional litigation as opposed to all other kinds of litigation. I’m not certain why, you know, say, private cases, or criminal trials need to be broadcast. But constitutional litigation does not have witnesses at the dock. It’s really an argument between lawyers and judges. And it’s about foundational issues that affect a much larger population. And there’s a lot of precedent for it. Right? So unlike, say, the American Federal Assembly, which kept its proceedings close to the public, they immune assembly’s proceedings for broadcast on radio live, right. So right to its inception, this was something that was being done with the sense that the public should engage and participate. We’ve seen the kind of engagement and the improvement on reporting that has happened, even with, you know, what began with some lawyers live tweeting courtroom arguments, or with the emergence of new kinds of forums like live law. And I think it’s important for lawyers and judges to, it’s a greater push for them to be transparent, and for them to explicitly say what they mean in a way that is understood to the public. And I think this often argument that being in the public sphere pushes everyone to be better. It’ll both be a kind of check for lawyers, judges, but also perform an important pedagogic function in our society. However, I don’t think this should apply to all trials. I’m not sure why a private defamation trial was being live streamed.

Anindita: That was my conversation with Rohit De, and you were listening to the DAKSH podcast. If you enjoyed the episode, do consider supporting us with a donation. The link is in the show notes below. Creating this podcast takes effort and your support will help us sustain a space for these quality conversations. To find out more about us and our work, visit our website dakshindia.org. That’s D-A-K-S-H india.org. Don’t forget to tap, follow or subscribe to us wherever you listen to your podcasts so that you don’t miss an episode. We would love to hear from you. So do share your feedback either by dropping us a review or rating the podcast where podcast apps allow you to talk about it on social media. We are using the hashtag dakshpodcast it really helps get the word out there. Most of all, if you found some useful information that might help a friend or family member, do share the episode with them. A special thank you to our production team at “Made in India”. Our production head Niketana K, edited, mixed, and mastered by Lakshman Parshuram and project supervision by Sean Phantom.