Rohit De on the Importance of Seemingly Ordinary People

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.

Caste and Cow Slaughter

RAJAGOPALAN: The issue of caste and identity is so deeply correlated with trade and profession. I wanted to examine, especially, the Quareshi case and so on from that lens, and get your take on a few things. One thing that became very clear to me when I read Quareshi—for the listeners, this is the Quareshi community; for the really young listeners, this is the Quareshis from the Gangs of Wasseypur; for those who are legally trained, this is the Mohammed Hanif Quareshi case from 1955.

It’s like India’s first class action suit, in a sense, because it’s 3,000 butchers from a dozen different states who come together and who really fight for their right to livelihood against an almost complete ban on cow slaughter. That’s the impetus for this particular suit. They lose the case for various reasons.

They center themselves, Rohit, as you discuss in the book, as, this is a question of Quareshis the butchers, not Quareshis the Muslims. For them, their livelihood and their identity as a caste that is involved in butchering specifically large animals, which is the Qasai trade, is center stage. Whereas the way the Supreme Court justices, and even some of the High Court justices, look at this problem, is through a sectarian lens. They immediately bring in the question of religion under Article 25, which is actually the last of the issues mentioned by the petitioners.

There’s a fundamental misunderstanding by the Hindu upper-caste judges. They think all slaughter is the same, or rather, all butchers are exactly the same. They don’t live in the Adam Smith world of division of labor and specialization. They say, “You can’t butcher cows. Of course, you can butcher something else. You can butcher other meat. You can butcher chicken.” It’s a really bizarre way of looking at the problem.

My sense is a lot of this could have just been avoided if we had a very strong protection under Article 19(1)(g), which is the right to practice, trade, profession, occupation and business. But it seems to me that that right was never meaningfully upheld because the courts kept deferring to both the legislature and the executive’s ability to unleash economic planning at a national level.

And because a lot of those exemptions in previous cases, including a complete prior ban on private motor transport, for instance, in those kinds of cases—because the court had already said that public interest allows for this kind of national planning and development—now, they were suddenly in a really bizarre spot when it came to the question of the Quareshi community and the question of their livelihood.

Then they turn to this sectarian “How do we think about this problem? What are the rights of the Quareshis?” Eventually, they have a weasel way out, which is this economic question of which cows are productive and unproductive. The huge discussion on this in the Supreme Court case—to me, it feels like the entire matter could have been solved very differently.

DE: The Indian constitutional vision was never one of unchecked private autonomy. That also came from a recognition that society in India was deeply unequal and hierarchical.

It’s an interesting coalition of people who come together. It’s not just the socialists, but also, say, Arya samaj, Brahmo samaj, progressive Hindu reformers who want to modernize Hinduism, women’s rights activists who were concerned about deep gender equality in the society, groups that are involved in scientific rationality, conservative groups who are concerned about morality.

There is a coalition that seems to agree that there is illegitimate interest in the state in intervening in certain domains of what one would call liberals here. They come together, and that’s why the debates are interesting because they come together with a particular textual formation, which they believe will allow for some freedom but provides some restrictions.

The problem with cow slaughter runs on three or four different ways. One is a successful political narrative that goes back to the 19th century, which constantly frames the question of cow slaughter as an identity question, which is at complete odds with, actually, the role that the cow plays in agriculture and everyday economic life. Right from the 19th century, we see campaigns to protect the cow, fairly aggressive campaigns.

This is in a situation where almost every farmer who owns a cow knows that at a certain point in time, that cow has to be disposed of to allow them to buy a fresh cow. Through any kind of animal husbandry, you want a reverse sex selection in how you produce cattle. And there is an everyday sense of the cow as an economic asset, but a public sense of a cow as a religious marker. What happens in this case, is that you see the two visions come from two different sides.

If it’s the Quareshis’ caste identity that makes the economic question visible, it’s, in some ways, almost all upper-caste Hindu judges’ caste blindness that doesn’t let them see exactly what you’re pointing out—that this is not just any activity that the group is doing—they can’t just move into other professions—or that the cow has economic value beyond its role in just agriculture, whether it’s towards the leather industry, whether it’s towards just giving the farmer certain kinds of assets at the end when you sell the cow off.

This is not just true for upper-caste judges, but also, a lot of the Muslim political leadership which signs on to the cow slaughter bill belong to elite ashraf groups, for whom this is not a question of livelihood. It is primarily a question of identity and maybe diet. They’re willing to make a compromise at this point in time, but the Qureshis are not. So again, we see reducing groups into Hindu and Muslim doesn’t actually represent a full range of interests.

There is a structural problem that the Quareshi case illustrates, which is that the Supreme Court is not a court that can do fact-finding by itself. It is very reliant. Unlike in an ordinary trial court where you can summon witnesses and you can cross-examine evidence provided by the other side, the Supreme Court, as an appellate court, doesn’t have the mechanism to do this.

This is the first case where they even ask someone to produce an amicus brief. The person they appoint as an amicus is the strongest cow protectionist in the assembly, so it produces a certain kind of knowledge. There’s no ability for the opposing lawyer to challenge the amicus brief in the court itself. There’s no process of taking in expert advice on a number of questions. That’s something that the case makes visible as a problem in constitutional design.

Constitutionalizing Group Identity

RAJAGOPALAN: I wasn’t so much asking for your opinion on a laundry list on when the court should intervene or not. Maybe I should rephrase this. To me, in one sense, we have constitutionalized religious identity, caste identity and sectarianism in a very peculiar way.

On the one hand, at the birth of the Republic, we’re trying to annihilate caste, and we’re trying to rise above sectarian differences by creating a scaffolding of liberal constitutional principles with Article 14, and right to equality, front and center.

On the other hand, the way the problems are navigated is through this group identity politics. I’m trying to wonder if there is a way to avoid that constitutionally. Does right to trade, under 19(1)(g), give you the strong weapon that one needs to avoid this problem of constitutionalizing group identity?

DE: I understand your question better now. This is where I perhaps disagree with some of my colleagues who write about the early constitutional ideas. I don’t think that the Indian liberal formation, if you want to call it that, was necessarily one which sought to be blind to social conditions. I think it did provide mechanisms, particularly procedural mechanisms for reducing the impact it played, but I don’t think it was blind to questions of identity.

It was just the politics of the time. Many of these identities were critical to self-imagination, but also how groups organized. Let’s see what more deference to an article, right to trade and profession, would have been. It would have, again, allowed for certain kinds of professions that are dominated by castes and groups to continue in that form and, in a way, reify those identities as well.

Another way of reading this would be that, in some ways, governmental intervention breaks down traditional monopolies over professions. In some ways, this could be progressive when there are professions that people are forced into because of caste hierarchies. They’re coming in and intervening in that. I hesitate to take a unilateral answer on this, but I think I want to suggest that a lot of what looks like liberal individualistic politics is very much tied to a range of other identities. We can’t think of them as separate boxes. They work together.

Ordinarily, the kind of places where these are seen as breaking down is with industrialization on the factory work floor, in the union, in the cities. We have a range of historical and anthropological scholarship that shows that in India, even things like trade unions or urban spaces continue to reproduce a lot of dynamics of cultural identity groups that existed earlier. They are not transforming into some kind of unmarked worker or unmarked trader just because they’re participating in a modern manufacturing system.

RAJAGOPALAN: Yes and no. To me, what has happened in this kind of sectarian politics, if you just follow the thread on this cow slaughter business, we move from talking about once the cow starts aging, then we need to make some concessions, and we need to allow cow slaughter, things like that. Eventually in India, we move towards a complete ban on cow slaughter. That’s one kind of drift that takes place from Hanif Quareshi.

Another kind of drift that takes place is now the matter seen entirely from our sectarian lens. I’m talking about cases like Om Prakash in 2004, where there is a complete ban on the sale of eggs in Rishikesh because it’s a spiritual city, and apparently every member in the city is committed, too.

In Gujarat, you see a prohibition on slaughter put in place for the Navaratri days. Then people start lobbying for why only Navratri? Can it extend to other days and so on? I do understand your point of, even if the court had not taken this view, it’s not like we could have just eliminated group identities overnight. These were things that went on for centuries.

But on the other hand, maybe the way we resolve the dispute is not through the lens of identity. There is that element that I find very disturbing. In modern-day politics, it is particularly disturbing because it has now become a whitewashed Hindu versus Muslim, upper-caste versus meat-eating Dalit. It’s taken that really bizarre abstract form.

DE: That’s a great way to frame this. I wanted to say a couple of things. One is that a lot of the cases that you mentioned, the geographical bans on diet and other kinds of practice, are fairly recent—in the last 20 years—in terms of history. In the earlier period, there were attempts to do this mostly through municipalities, and there was a pushback at the state government level to these regulations. There were legal challenges. I’m sure some of this was enforced extra-legally, but it was hard to do this through law.

The Quareshi judgment is interesting because when you read the judgment, almost anyone who would identify as pro-minority rights, or don’t want the question of cow slaughter to tie up with religion, which is a terrible judgment—it harms minority rights. But if you read the cow protectionist reports on the judgment, they also say it’s a terrible judgment—it doesn’t protect the cow. It’s a judgment which all sides seem to argue is not doing enough. So, who is it serving, and why do the cow protectionists have a problem with it?

As you mentioned, it seems to be a hyper-technical question, where they basically say you can’t have an absolute ban, but you have to allow for uneconomic cattle to be slaughtered in the interests of agricultural productivity, et cetera, et cetera. That becomes the way through which these markets continue.

You have about 30 years of litigation by cow protectionists until the meaning of the economic value of capitalists changed in a 2005 Supreme Court case. Once again, because the Supreme Court does not bring in evidence to be challenged, the court relies on a government of Gujarat agricultural ministry report, which basically says the value of cow dung and cow urine—these things outweigh any kind of loss that it might cause.

Because the law and litigation become important, there’s a concerted effort to capture the legal narrative. That’s the first one. The second one that you’re saying is really interesting. Clearly, recognizing we live in a society with identity politics, how do we allow for non-identitarian spaces to be created? The solution here is more than the right to profession: to really think about the idea of public, and public space, and who enters public space.

Some of this has constitutional backing, when we think of the meanings under Article 15. One of the underappreciated things—Kalpana Kannabiran and Gautam Bhatia have talked about it—is that it’s one of the few provisions which is aimed at nonstate entities as well. It’s not just about what the state can do, but also putting on watch public places, shops, restaurants and an extension.

Many of these judgments we have been thinking of are really about narrowing or closing off the idea of the public. So, I think we need to have a larger conversation which emphasizes that public participation needs to allow for access of all kinds of groups and interests, and it cannot be dominated by just the views of a particular group.

RAJAGOPALAN: I agree with you, but I’m not very optimistic because we don’t even allow that in a private space. This could also be held true of the private space in the common-law sense, where the only objection can be nuisance, or extreme danger, or something like that. We don’t even allow for that, so I’m even less optimistic of the kind of imagination that you have of public spaces.

DE: I see it as a spike in litigation against the state. What we also see is there’s a real drop in civil litigation. Individuals and communities are less likely to take other individuals and communities to court. The numbers have been dropping since the 1920s, and we don’t have a very good explanation for it beyond the fact that it’s a long, drawn-out, corrupt, slow system.

While there’s much to be criticizing the American torts approach, the complete absence of torts in India means that for anything to be done, you have to bring the state in as a party. Instead of having a nuisance case with your neighbor, you basically go to the state and say, “Just ban it in the entire city.”

I’m not an economist, and you guys study incentives better, but it seems to me that this creates a particularly perverse set of incentives and a much broader impact of particular winds of interest than what could have been resolved through private litigation.

RAJAGOPALAN: Absolutely. The other part is because we have an absence of class action suits, public interest litigation is basically our idea of a class action suit, which it really is not. Anuj Bhuwania and I had a lovely discussion about that. This idea of getting a group together to form representation and show that they have standing—we’ve just completely moved past that. Anyone for any reason can go to the state and just ask for either entitlements or encroachments, and sometimes, they’re the same. Some entitlements are encroachments on other people.

Over the years, we’ve really made all law public law, in a sense. You’re right that we don’t have much private law, which I think is a travesty because, in local conditions, Hindu-Muslim relationships are not the same everywhere. In eastern UP and western UP they are different. In Kerala, they are completely different from Bihar.

We’ve made this like a national blanket. This is your group, this is your identity, and this is how your position is fixed vis-à-vis other groups. This public version, or making everyone’s identity unilateral, national, public, is one of the reasons—not the only reason—but one of the reasons we have the politics that we have today, this kind of monolithic rise of Hindu nationalism.

Price Controls, Commodity Controls, and Black Markets

RAJAGOPALAN: To go back, I really want to talk a bit about what you call the case of excess baggage. This is, of course, Marwari cotton traders who get caught with more cotton than is permitted. Of course, they never got the permits in the first place in this particular case, but whatever the legal limit is, they carry way more than that. They are basically charged and eventually, we assume, imprisoned and fined for trading cotton.

There are a few things going on here. One, you have a beautiful description of how all these price and commodity controls came in during British wartime, and they were just adopted in postcolonial India. What is really surprising is that the postcolonial version is so much harsher than the colonial version, which may have been justified as a war effort, but now it’s losing all justification.

I was really surprised by the time I got to the end of the chapter. I know you’re not an economist, but you literally list out every single unintended consequence of price and quantity controls that I teach in my principles of microeconomics class. You talk about shortages and rationing, black markets, hoarding—everything that we normally talk about—how the prices actually don’t drop. There is a skyrocketing of price because new supplies are not forthcoming. In worst cases, they lead to famines.

You literally detail every single one of them, but at the end of it, you are still really benign about this Nehruvian commodity and industrial licensing scheme. The sense I walked away with, when I read the entire section, was that all of these things happened, but hey, wait a minute, there was this larger thing going on, which was national economic planning, and that’s why they did this.

You leave us in the lurch there. I was expecting a much harsher criticism, given the kinds of horrifying excesses that you pointed out. I just wanted your view—are there things you held back? Are there other cases that you read which made you more favorable to this kind of Nehruvian planning? What is going on in that narrative?

DE: Thank you. Maybe the first thing I should say is that I was so surprised to find the commodity controls cases because when you read accounts of planning and critiques of planning, what they largely talk about is either industrial controls or investment controls. These are really focusing at big industry.

Commodity controls perhaps is mentioned, but if you look through secondary literature, there’s maybe one book from the ’50s, something in the ’70s, and the work being done by, I think, Mekhala Krishnamurthy today. It’s fairly under-researched as a topic. And what is really surprising, it’s under-researched despite being such an important part of political conversation and everyday life.

RAJAGOPALAN: The only place I have found this is the lectures given at Forum of Free Enterprise and all the Swatantra party leaders, and those guys.

DE: They’re one of the archives I consulted as well. That became one of the few sites of economic policy critique on controls because, in the ’40s, the Gandhians were against controls. In fact, this is one of the things that Gandhi was adamantly against.

The Congress very narrowly won the battle. They had intra-party democracy in those days. They very narrowly won the battle to keep controls on; the socialists and the left were ambiguously critical about controls because they could see the consequences. They just felt the controls should be done differently.

One of the ways to understand it is that the wartime experience of controls—and this is a lot of criticism of British legislation. For the Congress and the early leaders—they saw the problem, not in the tools that the British government used, but one, the nonrepresentative character of the British government, which means they didn’t reflect the interests of the people they were governing.

This comes out most clearly in the Bengal Famine where, despite the existence of controls, famine conditions actually exacerbated. Secondly is the idea that a lot of the British economic controls are meant to subordinate Indian economy in the interest of something else.

So the initial reaction in the debates and in the parliament reports is that “Yes, there’s been a critique of controls, but the problem with this has been that the controls were usually just of British interest.” There was no linkage to society, so they didn’t get information filters and things coming in.

People like William Gould have pointed out that what implementing the controls required was a massive up-gradation of state capacity, incorporation of a lot of new people in the bureaucracy. And in many cases, state capacity and the bureaucrats were not either independent or equipped enough to actually do the kind of regulation that they wanted to, so you had the existence of a wide black market.

I am trying to imagine what the alternative would have been. To be honest, when I look around other postcolonial states, I don’t necessarily see a significantly improved or better alternative that emerges in terms of what is available in a set of ideas.

With the exception of maybe the Forum people, it’s not as if any other political party in India is making a kind of alternative radical proposal on how to deal with these questions. Everybody agrees that there is a problem of distribution and prices in the country, and this is the mechanism to solve it.

Swatantra Party is interesting because, I think, post-1991, there’s been this deep nostalgia for Swatantra, which is supposed to be both socially and liberal economically despite actually their winning MPs being fairly regressive maharajas who went in their own territories.

There’s also a gap between their intellectual leadership and their actual leaders. But Swatantra operates within a fairly limited world where their ideas only have so much reach. There’s a reason for that, which is that it’s a society that’s come out of mass deprivation from Partition, from war. There’s a need to make resources available. It’s not clear what other mechanisms existed at that point in time.

Socialism in India

RAJAGOPALAN: I’m not surprised that, at the time, they had this huge socialist infrastructure because I’ve written about this in other places. There was a very clear move away from laissez-faire in the early 20th century. You have the commanding heights of the Soviet Union, and a number of, now, Eastern European countries who are doing this.

At that time, even though Hayek and Mises had written a very clear critique, it was still not as obvious as it is today that this kind of price control exercise only leads to famine. We have no success stories from central planning in that sense.

What I’m genuinely surprised by is the lack of experimentation except for, to my mind, the one instance when Rajagopalachari enters politics in Madras presidency after his term as governor general. He becomes the chief minister of Madras, and one of the first executive orders that he issues is abolishing price controls on food grains, which was introduced as a temporary wartime measure.

The opposition is communist. That’s the biggest opposition to him in Madras at that point in time. They keep saying that “We’re going to have a famine. Prices are going to increase.” But—exactly as any economist would predict—the moment you eliminate price controls, supply is more forthcoming, and the markets adjust, and the shortages go away.

My question to you is, do you have a thesis on why there wasn’t more experimentation in different places? Because I know that the UP contingent was much more supportive of traders. Same with Gujarat. Whereas, some of the other states, say, West Bengal and Kerala, were much more left-leaning. This blanket—the same version repeated everywhere—is this coming from Nehruvian tendencies to centralize? Or is just all of India socialist at that time?

DE: Again, I hesitate using the word socialist. What you identified there is a set of common goals and methods that cut across groups which would have very different ideologies. The older version of the Hindu Mahasabha, the Praja Socialist Party, the Congress—almost all of them seem to center on very similar methods.

While controls are massively criticized, from what I could see, a lot of the critique is not that the controls by themselves, in the ’50s, are bad, but they’re being implemented badly because of individuals, individual politicians, these crooked businessmen.

The critique—and it’s a popular critique—is really focused on implementation and not on the policy itself. The final one, which is, actually, there is a fairly close relationship between business and political groups in all states, including in the left-ruled states. By the time the Communist Party starts coming to power, local business communities in all these states begin to work with the ruling parties.

What often happens is not that necessarily policies change, but the tolerance from deviance of policy goes up. “There are controls, and we all know you’re selling outside of the control price, but we’re just not going to go and look.”

In the Bagla case, it’s interesting that they’re actually caught when they’re crossing state lines. Mr. Bagla himself was a fairly influential figure in Kanpur. Maybe if he had just stayed there, this wouldn’t have been an issue.

In some ways, the market has corrected itself because there’s already a world that’s functioning outside of the regulation. The archive of this regulation actually shows us, in some cases, the worst instances. The larger point to get into—what’s interesting is that there isn’t a wide purchase of a critique of this, which is rooted in the Forum of the Free Enterprise kind of critique.

That’s partly a deep recognition of the economic and social inequalities India has, the recent memory of shortages, and that all the examples around the world, whether you look at New Deal America or Soviet Russia, seem to have adopted some kind of centralized planning.

The last bit, about why are the states experimenting—that has to do, of course, with the centralizing drive of the constitution, but also, to some extent, the coordination within the Congress Party on economic policy, at least up through the ’70s.

I think in some ways, we don’t acknowledge the 1990s enough, where there was a splintering of centralized political parties, but allowing for lots of very different kinds of policies to be followed by different states.

RAJAGOPALAN: I should clarify, that I meant socialism, I meant literally, in the Misesian sense, there is a control on means of production and the price system in the economy.

DE: I also mean it in that sense. In the sense that the state will intervene in economic practices, yes.

RAJAGOPALAN: One really interesting aspect, partly driven by what I read as your benign reaction to what was going on, is, to me what is not surprising now, given how I’ve read about post-socialist economies is, you have something like the Bombay Plan, where all the industrialists—and this is also identity-based—you have all your Parsis and Marwari families who come together, and they say, “Yes, socialism is a great idea,” mainly because it imposes huge barriers to entry, and their monopoly within their own trades becomes entrenched.

We have a very monopoly-cronyist version of socialism taking place simultaneously. All the industrial licensing is intended towards them. But the people it affects the most are the Baglas, and people like the Baglas. This includes farmers who are trying to sell their produce, women trying to sell saris from their home.

So the question I have is, was this not pointed out in the series of cases, that this is really an upside-down state, that nothing seems to be infringing on the people we’re trying to control, which is prevention of very large enterprises? We’re really thwarting every kind of small enterprise.

DE: That, again, is a question of how issues get translated into legal questions. In some ways, in almost all these cases, the questions turn not so much on whether the policy was good or not, but how was it implemented? Who made the rules? Did they have the authority to make the rules? Did they follow the procedure of the rulemaking involved?

At least from the legal archive, the critique was only limited to that. The question wasn’t whether the bureaucrat should do this or not, but whether the joint secretary had the power, or the district magistrate had the power to issue the rule?

Upendra Baxi talks about this in a different context, where he’s actually arguing for more intervention. He says that, basically, what happens is, the question of land reform, which really should be a political question about whether the landless need their economic interests advanced, gets entirely bogged down as to a debate about, does the parliament have the right to amend the constitution and technicalities of it?

For him, he sees that this is reducing political power, which, I think, in that case, is absolutely true. But what I try to argue is that, for many of the communities I look at, who enjoy little political capital—so the bazaar trader, unlike the big Marwari capitalist or the big Parsi capitalist, might have his personal networks in the local party, but he doesn’t have a standing to speak out in the wide public.

In a way, converting this economic issue into a question of technical, administrative regulation allows them to poke holes and spokes in the government policy more effectively than taking it on full strength, which I think would have been hard to do, given the way things were at the time.

I just want to make a little bit of segue, which brings Yale and Hayek in as well. It’s interesting that the kind of legal resources that are given to lawyers to mount these challenges stem from the Indian Law Institute, which is getting funding, at this point in time, by the Ford Foundation.

The first textbook in administrative law, which heavily uses the Bagla case and a bunch of other materials, also has extracts from Hayek, The Road to Serfdom. It’s written out of Yale Law School. There is a clear investment that the Ford Foundation, the American government has in trying to see India as a non-China model for the developing world. This is one of the spaces, within the Legal Academy, that they’re trying to make an intervention. Its impact is limited but significant because they’re able to put a few things in those critical spaces.

The Link Between Economic and Political Liberty

RAJAGOPALAN: It’s funny you mentioned The Road to Serfdom. When I was doing my dissertation work, I was talking about that kind of industrial planning. I was talking about how there is this contradiction between what the Planning Commission is trying to do and what the constitution aims to do.

Every time there is this conflict like Upendra Baxi mentioned, there is an amendment of the constitution, so we lose a lot of our civil and political liberties when the government is trying to come down hard on economic liberties. That’s really the crux of the Hayekian critique. You can’t have political freedom if the government squashes economic freedoms harshly.

I was looking at this through the wide lens of industrial licensing regime, nationalization by Mrs. Gandhi, and things like that. What you point out in the book is—and that’s why I told you the first time I read it, I was so depressed—it’s really The Road to Serfdom in action through a thousand paper cuts, through this administrative law and litigation, which is, each one of these people—if you really think about it, they’re trying to buy alcohol, or they’re trying to sell cotton.

The first half of the book is really talking about very ordinary activity: women trying to have a drink on Sunday, along with family dinner in South Bombay. And it’s just so alarming at how much the state, infringing on these kinds of economic freedoms and livelihoods, just comes down on political freedoms. Do you have any view on this interaction between economic and civil liberties? Or do you still see them as different legal and administrative questions?

DE: No, I think they’re deeply connected. I think that, even in how the claims are made or how they’re regulated, they are . . . So, in some ways, two separate—the civil-political and the economic—is, I think, in Indian context, somewhat disingenuous because they’re deeply implicated. I think the issue isn’t just the fact that economic rights can be regulated, but I think it’s the excessive reliance on penal and coercive mechanisms to achieve these goals.

I don’t think that’s necessarily true in all situations. In many places, you’re able to address both social and economic regulations without necessarily going through a system which empowers penal force against a political concern. The campaign for prohibition was massively popular in the ’30s and ’40s, so much so that in the Constituent Assembly, I think there were just maybe two members, one of whom was a tribal representative, who would even speak against prohibition. It had wide acceptability. When they had social movements for prohibition—it heavily impacted revenues. So why did it win?

It unifies Hindus and Muslims. It brings women voters on board. So why did something so popular become so unpopular so quickly? Partly, it’s because Morarji Desai decides to create this prohibition police force, which is a massive recruitment of armed police who have the right to enter into private domains and implement this policy.

RAJAGOPALAN: Without warrants.

DE: Without warrants. I was looking at the numbers of people arrested, and I kept thinking, I’m reading the number of zeros wrong. These are like 80,00, 90,000 people a year who are arrested under the state, almost none of whom get convicted because it’s almost impossible to prove.

For every person who’s arrested, think of five other people who were harassed, probably made to pay some kind of a bribe, and not arrested. You’re almost guaranteed, what might have been a popular policy becomes unpopular because they rely on a police force mechanism to do it.

I think this gets replicated in almost every case. There are ways in which one can, even if a government is invested in animal rights, protecting this thing, can do it without making these non-bailable offenses or without impinging on privacies of the home. I think even when, for example, in the controls case, where there might have been a popular narrative around it, it begins to fall down when it starts relying on an undertrained police force to actually implement these.

I think it might be worth actually having—and I’m not trying to do this—a conversation about what other forms of regulation are possible without relying on criminal law.

RAJAGOPALAN: We criminalize everything. I recently wrote about a case that went on for 40 odd years, where someone was accused of adulteration of haldi. It had three worms in it or something like that. You’re absolutely right, we criminalize everything. To me, that’s a natural consequence of the unintended consequence of price and quantity controls. If you really want to come down hard on it past a point, you keep making the penalties more and more severe, as opposed to redesigning how to regulate markets altogether.

Sex Workers and Civil Liberty

RAJAGOPALAN: The other odd thing about the prohibition case, and also the prostitution case, is the gaze. We constantly have a lot of discussion on who wrote the constitution. It’s mostly upper-caste men. Of course, we have just over a dozen women.

DE: For its time it was representative. In an ideal standard, obviously, it wasn’t. So, yes.

RAJAGOPALAN: I don’t mean it from taking away the legitimacy or something like that. But even the women who are speaking for women, have a completely different gaze because they are upper-caste. They are modest. They are from homes where they don’t necessarily have any need to earn a livelihood. Some of them are from royal families. Their view of women is to be paternalistic, or maternalistic in this case. It is, “We need to save the prostitutes from the situation.”

What is remarkable about the cases that you mention in the last section of the book is Husna Bai just comes out in modern India, very early in the republic, very unlike how women would behave at the time, and just says, “I’m a prostitute, and you have prevented me from doing my trade.”

That, to me, is also a question of, who is making these policies? We keep saying we’re democratic, but are we really representing large numbers of people and their economic rights? Are we really representing most farmers who wish to drink at the end of a hard day’s work, or women—the minority as they may be—who wish to be prostitutes, and things like that?

What is your view of democratic representation in this sense? Because this is a tension in the book that you keep pointing out. That these things are made by democratically elected people. It’s no longer a colonial government imposing this on you, but the people are not so thrilled about it.

DE: I don’t think we talk about this enough. There is a long-standing commitment in Indian political thought to have universal adult franchise and representation. As a theory, that sounds great, but when you start implementing it in practice, it suddenly means that, for instance, Tharavadu in Kerala are going to be regulated by votes that are cast in Uttar Pradesh.

Suddenly, when you create a democratic public, the actual public is very different from the imagined public. To some extent, the framers are aware of it, so there are a variety of mechanisms in the constitution itself which seem to correct against awarding all of this authority to the parliament.

But I think, in the early years, it’s a very difficult idea for the leaders of the National Movement to grapple with because these are clearly people who spent 20 to 30 years in political struggle in very difficult circumstances. They’ve clearly won elections with large majorities, and they are, in their imaginations, doing what is best for the people.

I found the chapter on sex work very hard to write because I was very sympathetic and a huge fan of some of the women members in the assembly, many of whom—they might come from elite families, but have very dramatic, radical careers. Either they were unmarried or they married men from other communities. They participated in public life. They were deeply suspicious of the Congress male establishment.

I also want to acknowledge that their view on how to regulate sex work is very different than that of the colonial administrators, for whom prostitution is regulated because it spreads disease. Also, from the Indian men who come to power in the courts and parliament—known for whom either it’s a non-issue, or it’s this language of shame, dishonor, and disease—one of the things that they’re able to do very effectively is say, “Look, prostitution is happening.” They give three big reasons.

One is because Indian family laws are regressive. They don’t give women a right to property. They don’t allow them to leave unhappy marriages. There’s no maintenance. So, they link family law reform to prostitution. They link partition violence to prostitution, and they link economic causes to prostitution. I think that’s, for its time, a fairly radical approach to take.

The problem is that they don’t talk to women who engage in sex work themselves. When they do, they don’t know how to translate what they’re being told. There is a wonderful report called the Social and Moral Hygiene Report, which is commissioned by the Planning Commission.

The report is interesting because you see that many of these women politicians go and interview hundreds of prostitutes, clients, people who run homes around India. They come out with a very strong set of recommendations. But they constantly have these moments where there’s an encounter where someone says, “Okay, we now want to sing for you.” The women who’ve gone to interview them, have come to interview them as, “Oh my God, these are fallen, desperate women.”

How do you react to this moment? They describe it. They say, “We didn’t know what to say.” Or somebody else says, “I earn much more than I would have had I worked in a factory. What are you going to do about it?” I think that’s what the court allows to make visible.

One of the critiques that the Husna Bai case got at its time—and I’ve had conversations even today—is, how do we know it’s her voice? How do we know it’s not, say, some kind of pimp or broker who’s speaking in her voice? One can’t answer, is this an authentic question or not. But the fact is, that voice, when it appeared, is a powerful voice because there isn’t a clear answer or a response you can give to it.

She’s able to show that what she does is work. Of course, it may be coercive. Of course, it may be degrading, but for her, it is work. It is livelihood. It is how she supports the family. I was really taken aback by this one clause which says, “Okay, if you’re a welfare state, you are not letting me do my work. I want compensation from the government for lost earnings.” So, it’s a remarkably contemporary document, as you pointed out.

I think the other thing that chapter shows is, yes, the Supreme Court controls constitutional meaning, but only in a limited way. So, in the 1960s, the court conclusively rules sex work is not protected under Article 19(1)(g), but irrespective of the court saying that, you have sex workers associations, unions, constantly saying, “Article 19(1)(g) protects our right to enter our profession. We are not going to be tied by the meaning that you give out.” Which made me think about litigation differently, that the purpose is not just to win a legal victory. The purpose is to allow for different kinds of politics.

RAJAGOPALAN: Politics, through voice and agency and not just through votes and election campaigning. My favorite part of that chapter is how some of the prostitutes are heckling female politicians when they come and talk about saving the prostitutes from themselves and from trafficking.

Not All Battles Fought in Court Are Won in Court

RAJAGOPALAN: I want to ask you one last question about the book. The first time I read the book, I thought the title of the book should have been, The State Squashing a People’s Constitution. The reason I say that is that all the petitioners that you talk about, lost.

You start reading about these people. You say, “Oh my God, they’re fighting for their rights.” Whether it’s the Parsis, who may like a drink, or the honest prostitute, or the traders, every single one of them, while they do weaken the state infrastructure and oppression in some marginal way, they all lose their case. They all have to now find another way of going about their livelihood and lives. In some cases, like the Baglas, they also go to prison.

Was that surprising to you? It’s a people’s constitution, but it’s not really because the powers that be are not giving people the power that the constitution was supposed to give them.

DE: I went in with an even more pessimistic reading, and I came out of it feeling more optimistic. I’ll explain that in a bit. One of the training I had to unlearn, as a lawyer, was that you always read the case to find out, “Okay, who wins? What was the best argument used? What is the precedent? Let’s distill that.”

I realized that one, that judicial litigation is just one part of a larger set of politics. A judicial victory and loss, by themselves, have limited meaning. You could have cases that people have won, but that victory has not translated into substantial change as well.

In many of these cases, the litigation allowed for the creation of larger associations. It allowed for a kind of public critique to enter the domain. So, the prohibition policy was eventually overturned because of a series of litigations like this. Clearly, sex work has not stopped in India, and continues in a variety of ways. Sex work organizing continues to rely upon the law.

The Essential Commodities Act was, again, more in breach than an actual following. I think that the Quareshi case, the cow slaughter continued in the ’90s, and I think that’s the one which is the most difficult because it gets combined with extra-state violence as well.

In none of the other cases do you have public vigilante groups trying to enforce these regulations, but by the ’90s, in the cow slaughter cases, you have nonstate violence that’s coming in, which is almost impossible to regulate within the legal system. I don’t see these as losses. I see these as ways of doing politics. In some of the cases, the ways of doing politics are effective.

In some of the cases, the victory is that you’re able to get Sardar Patel in a tizzy. You’re able to get the state to come before court. You’re able to make the state lose revenue. Or in Husna Bai’s case or one of these cases, you’re just able to delay the matter for eight years, so you’re not evicted from your house, right?

RAJAGOPALAN: Yes.

DE: These might seem to be small victories for us, but for the people concerned, it’s a big victory. They didn’t have to go to prison for three years, at least. They were able to keep the house for a period of time. Especially given the court system in India today, I think we need to think about how people engage with the law as greater than just scoring a victory in the end.

Partly because also, given how long cases take here today, you’re not going to see a victory or a loss for many years to come. So it’s really what happens while you stay in the litigation process.

I’ve been told my book is too optimistic. You’re the first person who’s told me that it’s actually a pessimistic take on it. [laughs]

RAJAGOPALAN: Well, it’s a pessimistic take in the sense that I am surprised by your optimism. I have always been a critic of socialism and this kind of state control over people’s lives through economic matters. That’s what I was really getting at. I was devastated by the time I read the book. I said, “This is much worse than I imagined.”

India’s Judicial System

RAJAGOPALAN: I want to talk a little bit about people’s constitution in the modern day. I want to bring up two specific parts. One is through litigation, and one is outside of litigation. In one sense, I feel like the courts have become less egalitarian now for many reasons.

We had, of course, a public interest litigation wave in the late ’70s and ’80s. We had Bandhua Mukti Morcha, Olga Tellis, so there was some representation of people who couldn’t otherwise represent themselves.

The modern-day PIL is all middle-class people imposing their middle-class morality. And you have justices, as you know—Anuj Bhuwania has beautifully written in his book—who are just demolishing slums. Justice Sanjay Kaul talking about beggars on Tilak Marg being an eyesore. It’s completely flipped on its head. In one sense, the imagination that loosening procedural constraints, which did get in the way of many people in the ’50s and ’60s, and relaxing these procedures might help people get better representation.

Now, we see the Supreme Court is just guarded by gatekeepers who are basically nepotistic judges, or nepotistically appointed judges, and senior advocates, right? There seems to be this cartelization.

How do you see something like these cases playing out today? Of course, we don’t have the same kind of industrial licensing, but we do have a lot of encroachment on people’s lives. As you mentioned, prostitution has also extended to dance bars. The cow slaughter ban is now complete and extending to egg sales. There is a lot of drift in these matters.

DE: I just want to highlight, as a historian, what is different about the time period that I’m looking at. I think there are two or three major differences. The first, of course, is that this is a new system where both sides are learning how to do this.

So there’s a strong element of uncertainty as people are going to court, and what I found interesting in many of the judicial memoirs is the judges saying, “We don’t really know how to do constitutional law. I ordered some textbooks from America. I’m learning how to do this.” Because their previous colonial training had very little engagement with judicial review. So this period of open-endedness allows for different kinds of experimentation.

Secondly, ironically, because there was no PIL, we had things that were closer to a class action suit. Quareshi is a great example of one, but in some ways Husna Bai is also representative because of multiple cases. It meant that you had to show representativeness. You had to show a kind of causal link. In some ways, the kind of relief that you asked for was perhaps more connected to the community that is affected. It isn’t a publicly minded interloper who’s coming in, but really a clear interest and link being articulated.

Thirdly—that’s the one thing that gives me some degree of hope even today—is that in the ’50s and today, the high courts are actually far more effective in addressing many of these questions and in providing relief.

A star litigant can get the case moved from Bombay to Delhi, whereas a less popular litigant can get stuck there. Recent empirical work on the Supreme Court shows that a significant portion of its docket is actually just Delhi NCR. That should not be the case. Either the court should be hearing cases across India, or it should really be focusing on a small handful of cases of constitutional importance.

There is a structural problem that has happened, which I think is more recent. So, even in the ’50s and ’60s, the high courts are the real drivers of action. The Supreme Court is always conservative. In many of the cases, my litigants won in the high courts and then had the win watered down in the Supreme Court. I think that’s gotten really turbo-charged in some ways today.

The specifics of the cases—it was almost eerie—when I was writing this, I thought many of the issues were done and dealt with, but almost each of them reopened. Even commodity controls, if you look at the current debates around the agriculture bills, the use of commodity controls during COVID to control PPE, and that idea—

RAJAGOPALAN: Absolutely.

DE: They remain the backbone of Indian governance system. I realize two or three things. One is—and this came across when I was working in Bombay around 2010—there was a fresh PIL that was filed, challenging the increase in drinking age by the Maharashtra government, and midway through the PIL, it was discovered that, actually, the drinking age had already been changed 15 years ago, but they had just forgotten about it. It’s a kind of performance.

The second effect—I don’t think in the earlier period, a lot of these policies were, as I mentioned earlier, backed with extra-state violence. Where it was, it was either hidden or closely regulated. I think that’s really becoming visible in some ways, with the state looking the other way in many places, which makes it difficult to discuss this as a legal issue.

Thirdly, there’s a clear forgetting. I was following the prohibition case that came out of Bihar, where Bihar enacted a law which is, in some ways, even worse than the Bombay Province law to look at. It’s also very clear that the impact of the Bihar law has been disproportionately on poor people. It’s been disproportionately on people drinking local kinds of liquor, rather than elite forms of liquor.

It’s a clear forgetting of older policies, struggles, and things that have happened. I wonder why that is. Is that a case of poor information given to the judiciary? Is it a case of a lack of institutional memory? Maybe we should really be doing more history reading and history writing as a public.

RAJAGOPALAN: The case of the prohibition, of course, is famously Bruce Yandle’s public-choice paper called Bootleggers and Baptists, where you have these strange bedfellows. In India, it would be the case of the Theke Wala and the Gharwali if I had to make a similar comparison, where you have these strange bedfellows who come together, who are to benefit from something.

But as you pointed out, in Bihar, actually, I haven’t calculated or compared per capita deaths and things like that, but you do have a lot more illness and death coming directly from this kind of adulteration.

Protest Constitutionalism

RAJAGOPALAN: I want to step to another form of a people’s constitution. Here, I’m referring to this lovely piece that you and your coauthor, Dr. Surabhi Ranganathan, who’s a professor at Cambridge, wrote for The New York Times. This was, of course, in the context of the street protests by large numbers of young people in India against the Citizenship Amendment Act, combined with the National Register for Citizens.

You had talked about how, once again, there is this resurgence of constitutionalism in public consciousness. How is this protest constitutionalism different from litigation-enabled civil rights constitutionalism, in a sense? It’s very inspiring to see the preamble and Ambedkar speeches on Article 14 being read. But not just in terms of the end goal, also in terms of form, how do you see this difference of people adopting the constitution?

DE: Well, thank you. I think a lot of us were taken by surprise when this particular form of protest emerged, and also somewhat overwhelmed because there’s something really beautiful about watching a crowd of thousands of people chanting this into the night. I think they need to go hand in hand because you can’t create a culture of lip service recognition, respect of constitutionalism, without a sense that the public really cares about this. I don’t mean it needs to be the kind of constitutional fetishization that Americans have.

I think it’s interesting that, even in my work, I find that there are multiple constituencies that engage with the constitution, but the engagement is tied to a specific provision. You have, for example, tribal communities that are organizing around autonomy and protection to tribal lands. You have Dalit groups that organize around certain provisions of the constitution. You have artists and writers talking about freedom of speech.

But what the CAA [Citizenship Amendment Act] protest saw was an invocation, not of specific provisions or specific clauses, but really of the preamble, largely outside of school textbooks and stuff, neglected portion, and a public oath-taking around the preamble.

I was trying to find, what’s an example of this that I can find in the past? The only thing that it reminded me of was, from 26th January 1930, the National Movement began celebrating that as Independence Day, and Congress would lead public processions in doing a Swaraj pledge.

There was a wonderful newspaper story of, I think in ’46, in the 26th January pledge-taking on Chowpatty Beach, where they have five people on the dais—two women, five men, speaking in Urdu, Gujarati, English, Konkani, Maharashtrian/Marathi, all saying the pledge together.

It’s really a commitment to a set of ideas rather than specific clauses. It’s a large enough canvas that allows to bring people to. Also, there are very few things that fall outside it, and in a way, it suggests that the project to change citizenship law is one of them. It enables the creation of a larger coalition, which is not identified just with one group or one identity or one political party.

We see this happening in other places around the same time. I’m thinking about protests and conversations in Chile. The language around constitutional reform that emerged in Pakistan at a certain point in time. I think this exists as a kind of vocabulary, but I think the Indian example took many of us by surprise, both the intensity of it and the range of people who participated in it.

RAJAGOPALAN: My sense of one potential difference—and again, maybe I’m being a little too optimistic about this—is, I feel like in modern-day India, the courts have not been a counter-majoritarian court. Really, the only hope that the people have is to come out in large numbers and convince the majority that they are not as strong as one would believe that they are.

I thought of it as slightly different. Of course, this is not by design, right? People just spontaneously came together and they did this. So there is a symbolic element to it.

But I think there’s also an element of, it’s very clear we’re not going to get much traction with the courts. They haven’t heard habeas corpus cases in a year. They haven’t heard the election bonds cases for more than two years. I think Gautam Bhatia has a ticker somewhere on his blog, along with the sexual harassment thing. I thought that’s where this is coming from, this failure to counter the majoritarian.

DE: I think what has been striking—as part of the two elements, one is that there is a sense that a lot of studies have shown that the Indian court, for all its failings and the delays and a lot of problems, even in the ’90s and the early 2000s, but consistently, in public surveys, newspaper coverage, there is a wide degree of trust across political parties and across social constituencies given to the courts.

The sense is that the courts will either diffuse an issue by delaying it, or create a solution, which will be acceptable to a large group of parties. There were very few court decisions which were really deeply polarizing. The ones that were, were often reversed following a self-correction.

I think that sense is under challenge for all the reasons that you suggest. I think that’s not just because of what the court has been doing, but also because there’s been a greater degree of transparency on the courts functioning because of new forms of reportage online, much more intense coverage and scrutiny.

I also think we’ve been very lucky to have a new generation of very young lawyers who are deeply committed—not just that are based in Delhi—who are willing to talk and speak on these issues. We often forget that India has one of the largest population of lawyers in the world. They’re not all amazing progressive radicals, but their presence means that there is a deep professional interest in maintaining the coherence of a legal system. You can’t have a system where your skills as a lawyer have no value because all that matters is the politics behind your case.

One is this: has the court been ever counter-majoritarian? I think the court sense of it has always been, “We are representing the real majority.” Even in the PIL cases, it managed to do that. Maybe, in some ways, the protests are a way of signaling to the court that “Maybe the media doesn’t represent what public opinion is, and we are able to represent this to you.”

Finally, I think it’s interesting that it allows for new kinds of civic citizenship to be produced, one that is not reliant necessarily in participating. I think this is the moment where, actually, a large number of marginalized people are really seizing on legality and the constitution as something that is on their side, and posing a counter-public to an official narrative on what the constitution permits.

The biggest contrast, for me, was, while there were these protests going on, the government’s intention to celebrate the constitution was to have a series of events on constitutional duties which firstly, are borrowed from the Soviet constitution, and were also put in during the emergency under Mrs. Gandhi.

RAJAGOPALAN: [laughs] Yes.

DE: I’m also promoting rational, scientific temper, which is one of the duties, but it’s interesting that that’s what gets picked up on amongst the constitutional discussions.

RAJAGOPALAN: Yes, because their question is not “What can we do to serve the public?” but “How the public can conform to our vision of a monolithic . . .” It is very similar to the moral and social hygiene cleansing.

Rohit De’s Intellectual Influences

RAJAGOPALAN: I’m very curious about your intellectual journey and intellectual influences because, as you mentioned, you were trained as a lawyer, and then you switched to history when you did your graduate work in the United States.

DE: Like you, I was studying law in the early 2000s, and I was studying it at a particular point in time when, on the one hand, it was a moment where a lot of social movements had been successful in litigating rights into the court. It was NREGA, RTE, the new pensions law—all of this was being enacted.

But also, you were having this emergent critique, and I think Anuj’s work is a good example of it, which was critical of this kind of court-led social change. On the one hand, we could be successful. On the other hand, we saw failure.

I was fortunate to clerk at the Supreme Court, and my clerkship showed me how difficult it was to access the court. Going to court is not natural. It requires a great deal of will and resources. I also was fortunate in being able to work in Sri Lanka at a time when Sri Lanka was trying to write a constitution to resolve their conflict, and it also showed me the power of constitutionalism in popular politics.

When I first came to the US to study, I wanted to do public law, very traditionally, within the law school, but it became increasingly apparent to me that a lot of what we take as concepts, institutions for granted have very particular histories in South Asia. These are histories that need to be understood outside of just the universal language of constitutional law. It was also a moment when there was deepening interest in history departments of histories post-1947. I became aware this was even something that one could do.

In terms of the intellectual influences, I probably mentioned both my advisors, who were very different in their own work. One is Gyan Prakash, who has been a leading figure in the Subaltern Studies movement, who has, in his work, really looked at how certain kinds of subaltern public exercise agency outside of universal domains or universal language, but has also been deeply into things like urban history. He wrote a wonderful account of Bombay in the 20th century. So, making a lot of these struggles visible . . .

RAJAGOPALAN: Which has influenced movies.

DE: Influenced movies. Made a lot of these struggles visible.

My other advisor was Hendrik Hartog, who is an American legal historian, but takes very seriously the idea that legal history is not just a kind of antiquarian search to find what was law in the past, but to get a sense of what did a variety of people—whether the experts or ordinary people—understand the law to be, and how did they carry those meanings around as they navigated their daily lives? Some of his work was on how American men and women understood marriage and marital obligations during the 19th century.

I think that, really, the foundational figure for South Asian legal history has been Mitra Sharafi, who, I think, is the first lawyer turned South Asian historian, who initially went to India to do work on the history of contracts in India, and discovered that a lot of the commentaries on contracts and a lot of the lawyers involved in litigation were Parsis, and what she turned to was writing a history of the Parsi community and the legal sphere in India and how they constitute each other.

Not only are modern Parsis made through law, modern Indian law is shaped by specific activities of the Zoroastrian community. These are exciting times to both work on South Asian legal history—lawyers and historians have really turned to legal sources—but also to think of histories of India post-1947, and to get over that mental barrier that history ended. There have been some books already, and I think there will be many more books in the years to come, that really focus on this period.

RAJAGOPALAN: You’ve pointed out, in your own book and the discussion today, on how the more things change, the more they stay the same. Apparently, now we are a market-embracing, globalized economy, and we are still talking about price controls, quantity controls, import tariffs, prohibition and restrictions on prostitutes and dance bars, and things like that.

What is your writing process?

DE: I think the biggest challenge for me, when I was moving from the post-doc to a full-time teaching position, was having to revise writing habits. As a graduate student and as a post-doc, I had, in some ways, unstructured time. It would take me days to build up writing energy, and then I would have a binge for three days where I would not sleep at night and would churn things out and then revise.

One is you don’t have that kind of time to do buildups anymore, and secondly, once you hit a certain age, you can’t stay up all night and function the next day.

I think the ideal move that I am always advised is, create a system where you write every day, but this is something that I have rarely been able to do.

What has worked has been to create writing groups with friends and colleagues, where you set a commitment—maybe every three weeks or every month—that you’ll meet as a group, and one person is responsible for producing a certain amount of written work for that. That creates a kind of incentive. You don’t want to disappoint your friends. It’s also safe space to workshop.

The other modification of this has been a writing boot camp. I did that more in the pre-pandemic world, where a group of us graduate students and faculty would just sit in a classroom on a Saturday afternoon, with a bunch of snacks, and sit together in a room for like six hours, and then just produce a chunk of writing.

I have friends who have been doing this with Zoom and doing Zoom accountability. That helps in that when you meet as a group, you tell the group what your writing goals are. At the end of four hours, six hours, you tell them how well you succeeded or did not, but it’s basically about creating a system of accountability for writing.

I think the most challenging thing at this moment, as a historian, is that what you can use to write is really dependent on what has been scanned and made available online, so I’m spending more time reading my sources than actually writing, at this moment.

I’m a tea and diet Coke drinker rather than a coffee drinker. I enjoy music, but most of the music I listen to is very distracting, so I can’t actually listen to music when I work. I have, as long as the weather has been nice, tried to go out and write in a coffee shop, or our campuses just put out tables and chairs all over. That kind of change of scene has been helpful. Lots of breaks and snacks. I think that’s basically the way I do that.

More on A People’s Constitution: Cover Art and Representation

RAJAGOPALAN: [laughs] You are also an artist. I am holding up a cover of Rohit’s book right now, and the cover will be up in the full transcript and show notes. All the little figures on the cover, the cover art, has been done by you. Here, you’re basically representing the people of India, right? The magistrate, someone who’s a sweeper, the trader, someone who’s a dancer. You have these beautiful little figures, and they look great when I just look at it, but when I look more deeply, they’re really representative of the book.

DE: I don’t think of myself as an artist in any way whatsoever. Just like many people, going back to college days, I ended up doodling at the backs of notebooks. I don’t have a great range. What I do draw are figures and scenes, and a lot of it is about detail of architecture, furniture, clothing. These people don’t have faces, they just have these external details.

I was struggling to come up with a cover for the book. I was working with a lot of images. None of them fit properly, and I was complaining to my mother about it. She said, “Just quit complaining and do something yourself.” I was lucky to be able to talk to the editor to get this put in.

I want to make a pitch. As historians, we need to find a broader way to narrate our work. I find it deeply troubling that there’s a lot of interest in South Asia in history, but the history that is read is either YouTube videos that are training people for civil service exams, or Amar Chitra Katha, or at worst, WhatsApp forwards. How do you communicate scholarly, grounded, complex historical narratives through nontraditional forms of writing?

That’s a conversation that I hope many more of my colleagues will be participating in. There are some podcasts, which I think are great, but there have to be forms beyond podcasts as well, and in the mobile idea of languages as well.

RAJAGOPALAN: I agree. The thing I love the most about the cover art, as you mentioned, there are no faces, but they are instantly identifiable by the outfit that they wear, or the constable holding the stick, and things like that. Again, it made me happy because I knew that you had drawn them. I had a smile on my face.

But it also really depressed me that we’ve taken the individual out of the scheme, in some sense, and we have made some of this about their group identity or their class identity, which I personally find very saddening because I feel like that has led to a lot of the chaos that we see in modern-day India.

DE: Pratap Bhanu Mehta, who is always really astute in observations, in a conversation about the book, began with looking at a cover of Hobbes’s Leviathan, where you have the figure of this man, and he’s made up of lots of small figures, but they all look identical. That’s the story of a kind of early liberal political text, but it’s also a story of imagined homogeneous male citizens.

I think the Indian context offers a different way of imagining politics, where the fact of your difference in identity should not preclude your ability to participate in a public domain with certain kinds of rights being protected. Many people have argued that it’s another way of imagining what you might want to call liberal, but another way of imagining what an egalitarian political future could look like.

Maybe the Congress Party would have liked all these figures to be wearing khadi and wearing kind of standard state official clothing. Another kind of government might have wanted them to wear particularly traditional kinds of clothing across the scenes, but what we have is a diversity of representation.

I’m reminded of a couple of things. One was the People of India posters, which I’m sure you’ve seen, which was for the chart papers for school, but also the early petitions to the Supreme Court identified people by their communities as well. It was “Fram Nusserwanji Balsara, a Parsi resident of Colaba.” It’s very much part of their self-presentation, and so I wanted to keep that in the picture.

RAJAGOPALAN: By the way, just a random segue—were the headings of the chapters or the titles inspired by Sherlock Holmes in any way?

DE: I talk a little bit about it in the introduction. It was influenced by two kinds of readings. One is this legal bestseller model—Perry Mason, Sherlock Holmes. There are a bunch of Indian lawyers—K.L. Gauba and others—who write these. They’re very popular in the ’40s and ’50s, these railway bestsellers. There’s a famous one called Mrs. Tandon’s Honeymoon and Other Stories. They’re essentially about these stories of these cases. John Rumpole is another one that came to mind.

The second, of course, is the logic behind common law, which is often taught through a series of case methods. As you know, everyone knows the ginger beer wala case, and the case of the tramcar, and the woman with the baby. There’s a sort of way in which we remember, which is a standard thing to common law, and I was trying to produce an alternative set of cases through which one can talk about these new developments.

RAJAGOPALAN: Then Husna Bai is your Irene Adler. That’s where I was going with this. She is the one woman in this entire scheme of things.

[laughter]

Rohit De’s Media Consumption

RAJAGOPALAN: I have a couple of last questions. One is, what are you reading right now?

DE: Okay, there’s work reading and there’s reading for pleasure. One of the courses I’m teaching this year is with my colleague Sunil Amrith, which is new books in South Asian history.

This week we’re reading a couple of books, one by Durba Mitra, which is called Indian Sex Life, which is really a kind of history about how a range of disciplines in the late 19th century began to really become obsessed with the idea of the prostitute, from philology to forensic science, to law, to medicine. It really uses, not the real figure of the prostitute, but the idea of the prostitute as constituting knowledge in social sciences in India.

The other book is by Jessica Hinchy, really terrific book looking at the history of Hijras in North India, and how they were regulated by the colonial state, and how they continued to persist despite efforts by the state to mark them out as criminal and push them out.

In terms of non-scholarly work, my happy reading has been A Suitable Boy, which is a book I turn to anytime, like I need to go to bed. You just read 10 pages. Of course it’s an incredible book, but it’s a really beautifully detailed account of what India was in the 1950s. We talked about this earlier. Whether you’re looking for debates on constitutional law, conditions in the rural village, the nature of Urdu poetics, debates over syllabi in what should be taught in English departments—it’s all there.

RAJAGOPALAN: Land reforms and eminent domain cases.

DE: Yes, absolutely. You will find it. That’s the kind of other fiction, comfort reading.

RAJAGOPALAN: Have you also been watching it?

DE: I did watch it over the summer when I was in the UK. I have mixed feelings, but it had some excellent moments. I’m still trying to find a way in which we are able to capture how Indians engage with the English language in a way that is natural and not stilted and school-drama-like.

RAJAGOPALAN: Most important question, during COVID times, before I let you go, what are you binge-watching?

DE: Far too much, but a couple of shows that have been really interesting. One, of course, is Borgen, which is this West Wing in Denmark. It has problems in many ways, but the two things that are appealing, one is that in many ways, Danish political crises seem almost minor compared to the challenges the world is occupied with today, and it’s nice to find problems that are manageable and resolvable.

Secondly, the Danish political system, at least to an outsider, represents a range of ideological visions that many of the other countries don’t have. You have parties that range from eco greens and extreme left parties, to extreme right parties, to the ruling party, which call themselves moderate. As an outsider, watching that system, it’s been far more relaxing than say watching something like The West Wing would have been.

In terms of Indian shows, I recently finished watching Paatal Lok, which was distressing, powerful, and disturbingly contemporary in its content.

RAJAGOPALAN: One thing, I should mention that both you and I would have a chuckle over with Paatal Lok is that the police station is outer Jamna Paar, which is obviously a location that does not exist. But since both you and I have homes now that are Jamna Paar, we know that that is a proxy for the distance from elites and powers and things like that. Did you notice that? I thought you’d have a chuckle over that.

DE: Definitely, yes. Also, what the imaginations of Delhi are. A lot of Jamna Paar is actually closer to central Delhi than large parts of South Delhi are, but they are perceived as far, beyond the river.

RAJAGOPALAN: Absolutely, yes. Thank you so much for doing this, Rohit. This was such a pleasure.

DE: Thank you. Thank you for the time, and thank you for having me.