In this episode, Shruti sat down with Rohit De to discuss his 2018 book, A People’s Constitution: The Everyday Life of Law in the Indian Republic. De is a lawyer and legal historian focusing on contemporary legal issues in South Asia. He is also an associate research scholar in law at the Yale Law School. His book is a constitutional history from below, exploring how the Indian Constitution, though drafted by elites, soon captured the imagination of the country’s common people. Shruti also speaks with Rohit about the effect of price controls on Indian markets, political participation by marginalized groups, the Indian legal system and much more.
This transcript has been slightly edited for clarity.
SHRUTI RAJAGOPALAN: One of the fundamental things that Adam Smith did was that he broke the link between superior outcomes and superior individuals. The wealth of nations is not because of wealthy people. It’s because of the division of labor and specialization.
I found that was something very similar to the overall theme of your book, which is that, for constitutional vibrancy and robustness, especially in terms of protecting individual rights and civil liberties, we don’t just need elites who are familiar with constitutional debates and doctrines and foreign constitutions. What we actually need is just ordinary people going about their lives and business, who are willing to fight for the right to be free from interference of the state or interference from other groups.
I wanted to ask you, is this how you framed or thought of the project?
Market Participants and Constitutional Claimants
ROHIT DE: Thank you so much for the question, Shruti. When I started the project, I was fresh out of, I think, six years of legal education. I had a very instinctive idea that, naturally, the law and the constitution are important. These are obvious places that people will turn to. When you talk about this with some lawyers, they’re like, “Yes, of course, people who are shut out of power will turn to courts.” It’s seen as an instinctive reaction.
But when I started looking at the material, it was clear that the turn to law and to litigation, the use of constitutional language, was not automatic. It was made possible by certain structural conditions—social networks—at a particular historical moment. As you will see from the book, I started looking for what I thought were individual-rights claims, or more broadly, places where the new independent Indian government was seeking to transform everyday life, and where the challenges came.
They all seem to be rooted in a certain kind of changing market regulation or market practice. So, there are strong parallels to the time that Smith is talking about, which is a creation of a commercial society, commercial ethics in Britain in the late 18th century.
The idea that for the wealth of nations, you need to have the ability of consumption amongst middling to lower classes as well—unless you have the ability to consume, which is more widespread, you don’t have a forward movement of a market society. A lot of what came through were really conflicts around consumption and conflicts around small-time retail and distribution, which often gets overlooked in standard economic histories that are written of this period.
It’s hard, and I talk about it a little bit in the book. It’s really a set of competing visions about the market, and where a lot of these rights languages come from, or procedural debates come from, are really about contested notions of how the market should be imagined and regulated in the 1950s.
RAJAGOPALAN: There is a lot of Marxist subtext in the book, in the sense that you do talk about group identity and class-based interests of different groups. That will become apparent in the cases we discuss, whether it’s the Marwaris and their long tradition of usury, or whether it is the Parsis and the liquor trade, and the Qureshis who were the butchers, and so on.
In one sense, you also subvert this standard Marxist lens because you very clearly show that this is not really a class warfare. This is the state regulating commercial society and using such excessive force that it actually cuts across all classes. It hurts farmers. It hurts Husna Bai, who’s the prostitute. It hurts all the petty bourgeoisie, the traders, and it also hurts some very long-lived traditional customary trades that we have in India.
DE: Thanks. If I can do it in a bit of a segue, much of the writing on Nehruvian India, at the time when I started doing the book, was mostly by political scientists and, to some extent, economists, who were really interested in macro stories of change. I’m thinking here of the work of Sudipta Kaviraj and the class-based nature of the state, or the standard economic histories, which begin with the first plan, second plan, and sort of list it out.
I think what historical research or archival research shows is more granular stories, stories that have more to do with contingency and to do with fixed locations, rather than these overarching India stories.
A couple of things came through. One is, there was a long-standing idea—and this comes from a range of not just left but critical historical tradition—which saw law as external to Indian society. Law was a tool of the colonial state. Upendra Baxi described it as a state emissary. The idea is that the law essentially is a manifestation of the interests of a certain kind of ruling class.
The ruling class composition might change over time, but it’s really a story of coercion that is coming through. Other people have shown this as well, but I think what the ’50s archive shows is that, actually, one, that it had a certain degree of partial autonomy, and secondly, that it became not just a one-way process, but a terrain in which a lot of competing visions could be argued.
There was a period of time when multiple visions—it was not clear which one would win. I think the point that you make about how state regulation cuts across classes is an important one. We’ve often, in older, more partisan debates, either seen this as a conservative defense of right to property, which is siding with landowners and maharajas, and a progressive siding on land reforms with the government.
One is that we now know that property expropriation happened primarily with groups who might lose redefined property rights, so tribals, landless farmers, the urban poor. We also know that outside of just physical property, there were lots of different kinds of interventions that the state was doing in the ’50s.
What you have is a government that’s trying to do some of these things, keeping both the election-winning goals in mind, but also being curbed in by this constitutional system. It’s interesting that, because our economy is structured so much around a caste society, that a lot of interventions into, say, economic behavior, also began to have consequences on group identities.
There’s a way in which we wanted to do certain things as class conflict and certain things as, say, religion or ethnicity conflict, and it’s one of the tired tropes that we hear in all kinds of politics, like, by bringing up identity questions, you’re weakening the class battle, or identity issues don’t address economic inequality.
When you look at India, they both go strongly hand in hand. An intervention by the government to restrict cow slaughter has been traditionally understood as a point of Hindu-Muslim conflict, but it’s really about also attacking a kind of economic activity of certain Muslim and Hindu castes, who are very much dependent on this trade. This can’t be easily disentangled. It helps us break down the old elite marginalized category that we’ve often worked with.