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English band, no sitar

By Jawed Naqvi

I have been reading A People’s Constitution: The Everyday Life of Law in the Indian Republic by Rohit De, an assistant professor of history at Yale. It’s a fascinating piece of research about how very ordinary people have engaged with India’s constitution by petitioning the apex court, sometimes successfully, often making little headway, with private and public grievances against the state and its diverse arms of redress and coercion.


Significant in De’s narrative is the caution he takes to present both sides of the story of the constitution: its lure and its critique. On the one hand, he shows it as a handy instrument in governing a diverse people with a set of universally applicable rules. On the other hand, there is the Mantoesque reminder of Mangu’s quandary (from the short story Naya Qanoon or New Constitution). “…At one stroke territorial allegiances were wiped out and the past obliterated,” the Indian Supreme Court says in appreciation of the new constitution. “At one moment in time the new order was born with its new allegiances springing from the same source, all grounded in the same basis, the sovereign will of the peoples of India with no class, no caste, no race, no creed, no distinction, no reservation.”

That narrative, however, was tested on a different touchstone by Manto. In his story, just when Mangu the tonga driver of Lahore was celebrating the passage of the Government of India Act, 1935, which promised to bring greater self-governance to Indians, he believes the new arrangement would send the Englishmen “scurrying into their holes”.

De reveals the counterpoint with Mangu accosting an Englishman who accuses him of overcharging. The story closes with the following lines: “All along the way, and even inside the station, he kept screaming, ‘New constitution, new constitution!’ but nobody paid any attention to him. ‘New constitution, new constitution! What rubbish are you talking? It’s the same old constitution.’ And he was locked up.” The new constitution did not pass without being questioned in the constituent assembly. As K. Hanumanthaiya, a disappointed member of the assembly, observed: “We wanted the music of the veena or the sitar, but we have the music of an English band.”

Virtually secret vaults of the exalted and aloof Supreme Court were virgin territory for academic research and De dug out his four cases to illustrate how simple folk grappled with the statutes that were framed by an English-speaking elite. And he showed how a few of them sought to challenge elements they saw as violating their rights, while others felt wronged by the interpretation of the constitution by the young bureaucracy running the new republic.

Given Aasia Bibi’s improbable victory over a powerful lobby of right-wing clergy that failed to get her hanged, there is a fit case for researched documentation of the people’s engagement with the Constitution of Pakistan: a history of mortal and immortal contests, fighting law as Mr Bumble does in a Dickensian world, arguing with it, and even moulding it with fresh ideas that better fit a modern democratic republic.

The four cases that set early legal precedents for Indians in De’s book concern a Parsi journalist’s challenge of new prohibition laws in Bombay; a Marwari trader’s case against stiff Nehruvian rules for commodities control; a Muslim butcher’s case against cow protection laws; and a sex worker’s battle to protect her right to practise prostitution.

What De’s archival material reveals as much as the cases he looks into are different aspects of the evolving Indian society that interacts with its hidebound past under a single overarching constitution that strives to address the fears and aspirations of the young citizens equally.

The story of Behram Khurshed Pesikaka in May 1951 set off a chain of events when he was returning home in his car in Bombay and knocked down three persons who suddenly emerged on the road. They suffered varying degrees of injuries. He was exonerated of rash driving after a witness said he was not speeding and appeared to be in control of the car at the time of the accident. But he was jailed for drinking without a permit. The policeman who described the smell of alcohol in Pesikaka’s breath subsequently became a subject of discussion and the case led to a complex set of events including the introduction of the breath analyser, and a long debate on how far the state could go to sniff the breath of an unconscious person. There were other twists in the prohibition saga with different individuals.

De’s story about Harishankar Bagla and his wife Gomtidevi discusses a landmark challenge to the constitution by the Marwari couple. They were arrested in a train with over 220 pounds of cloth hidden in the bathroom and underneath their mattresses. The case related to the colonial era Essential Supplies Act that the government had retained. The Suppression of Immoral Traffic Act, which Husna Bai challenged, was enacted in 1956 and came into force only in 1958, several years after the commitment of ending trafficking had been enshrined in the constitution as a fundamental right. Husna Bai’s petition began a constitutional debate that hasn’t yet ended.

The butcher’s story probed a law that attacked a people’s professional right to livelihood. It also exposed the political personnel willy-nilly involved as pro-ban lobbyists. De describes the Hanif Qureshi-versus-Bihar case as one of the earliest class action cases in post-Independence India. Something else is worth noticing though.

“In their manifestos (in 1952), the main opposition parties had all made a commitment to ban cow slaughter and castigated the Congress party as ‘cow killers’,” says De. “In 1955, even the Communists joined hands with orthodox Hindu leaders: trade union leaders and factory workers carrying hammer-and-sickle banners marched with Hindu priests in a procession in New Delhi shouting slogans for a complete ban.”