The Executive Summary

The Indian constitution has a dynamic that few of its peers can boast of. Apart from being the longest written Constitution in the world, it is also perhaps one of the most resilient, living under the constant threat of its soul being sapped away. Battling constant criticism from its naysayers that it is a product of western sensibilities and not adequately Indian, it is probably safe to say that it has survived the test of time only because the majority of the populace still affirm its ethos.

Two books that released recently attempt to the role played by “we, the people” in giving wings to this institution. Rohit De, an assistant professor of history at Yale University in the US writes a magnificent book  A People’s Constitution, in which he talks about the Constitution as it affects, and was shaped by, the common man – in fact, the commonest of them all – the drunk, the bootlegger, the butcher and the prostitute.  

In tracing four significant cases from the first decade of our democracy’s existence, the book paints a lovely portrait of how the founding document of the nation became a weapon for, and on behalf of, the people on the streets, literally. People who scarcely knew of its import, but for whom, it was their only protection against the encroachments of the State.

In the first of these four, De writes about the early efforts by the State of Bombay (as it was then known) to impose prohibition – justified in patronising tones as protecting the working classes from themselves, from ‘sapping their vitality’. Eventually the State won – with the Supreme Court upholding the Bombay Prohibition Act, but running the risk of ruling over a state of convicts, the implementation of the law had to be watered down.

Two other chapters that deal with ban on cow-slaughter as well as the challenge to regulations around prostitution are fascinating and insightful. De finds, toiling in the Supreme Court godown where old files are laid to rest, that the Writ Petition in the Supreme Court challenging the ban on cow-slaughter had about 3000 petitioners, probably making it the largest case the apex court has ever dealt with.

Interestingly, these petitioners were butchers from the Qureshi community, who did not frame their argument on religious grounds. Their argument was more along the lines that their livelihood as butchers was suddenly destroyed. Neither was much of the material found in the judgement about the cow being sacred a part of the State’s defence. And yet, the judgement, effectively approving the restrictions on slaughter, is guided by the reasoning that the petitioners did not adequately satisfy the Court that slaughtering of cows was an essential practice. Would the Qureshis have been better off if they had trumpeted their religious freedom rather than their commercial rights? Did the judges bring their own convictions into their verdict? These questions are worth pondering, for the layman as well as the lawyer.

The chapter on prostitution is also fascinating in that in what appeared to be a concerted effort, several prostitutes, identifying themselves as such, approached the Court asserting their right to ply ‘the oldest profession of all’. Were they mere pawns in the hands of the very people the Constitution sought to liberate them from? And if they were, was it this same Constitution that was being used to defeat the protection afforded?

In each of the topics, De looks at the history of the social mores that shaped the law or restriction, the then prevailing political thought, and the contemporary litigation on the subject. One fascinating aspect in the book is its reproduction of cartoon strips from Shankar’s Weekly, the dominant satirical publication of the decade, to give us a window into the mood of the times.

If De is an academic who writes like a layman lawyer, Gautam Bhatia is a lawyer who labours to write like an academic. Bhatia’s book The Transformative Constitution is an in-depth look at the jurisprudence that shaped nine of the most pressing debates that surround civil society today, and the judgements that are likely to form a guiding star for each of these principles in the decades to come. Divided into three portions mirroring the three promises in the preamble of the Constitution – equality, fraternity, and liberty, the book looks at nine judgements from different Courts in India that best showcase the transformative power that the Constitution wields over society.

The topics addressed are all fundamental to present-day civil discourse – from the protection for women from being subjected to discriminatory laws, and the decriminalisation of homosexuality, to the subservience of Constitutional ideals to religious customs – a recurring theme today (think the entry of women to Sabarimala or Haji Ali, or the still pending litigation over female genital mutilation practiced among Dawoodi Bohras). Privacy is another dominant theme, especially when it entails criminal consequences – protection against self-incrimination, or guilt by association with a banned outfit.  

As wide-ranging as the topics selected are, Bhatia evidently writes for his peers: fellow experts on the Constitution. His writing is thus, heavy, and perhaps not intended as a casual read for the layman.

Both books, though, serve as a colourful enunciation of that basic feature that makes the Indian Constitution uni-
que – its guarantee of Fundamental Rights, and how it has come to shape each of our lives.