The Republic of Writs: Litigious Citizens, Constitutional Law and Everyday Life in India (1947-1964)

Abstract

This dissertation explains how the Indian Constitution that came into force in 1950, became part of the lived experience of ordinary Indians during the transition from the colonial state to the postcolonial republic. The Constitution by expanding the powers of the state to effect social and economic transformation and simultaneously granting citizens judicially enforceable rights, fundamentally transformed the relationship between citizens and the state. Methodologically, this dissertation advances beyond doctrinal analysis and judge-centred histories to understand how law operates in a culture i.e. what people believe law is and what they do with this knowledge as they work out their daily lives.

Drawing upon previously unexplored archives at the Supreme Court of India, this dissertation examines significant constitutional challenges by citizens against new transformative state initiatives to map how the constitution emerged as a field of politics that came to dominate, structure, frame and constrain everyday life. Each case examined uncovers the deepening and reach of the constitution and is representative of a distinct new legal strategies that were deployed in that period. These include challenges to the alcohol prohibition laws in Bombay, to the system of permits and licenses used to control the economy, to the cow protection laws in Bihar, UP and MP, and to the law suppression immoral traffic in women.

Through the lens of litigation over police powers, the economy, religion and gender, this dissertation traces how colonial governmentality was reworked through the courts in the 1950s.

This history of early postcolonial constitutionalism from below forces a re-examination of the debates over the state, autonomous subalterns and the dichotomy between civil and political society.

Through new archival discoveries it demonstrates that law and that law and litigation were not resources that were limited to elites. Groups marginalized by law and legal regulation exhibited greater legal consciousness. The language of constitutionalism and proper procedure, enabled minorities who were not represented in the electoral consensus to confront arguments based on majoritarianism, economic efficiency, and social reform. Individual rights therefore were inextricably linked to community interests, and the ability to litigate was a networked resource.