A People's Constitution: The Everyday Life of Law in the Indian Republic

ISBN-13: 9780691210384

Media Type: Paperback

Publisher: Princeton University Press

Publication Date: 08-04-2020

Pages: 312

Product Dimensions: 6.12(w) x 9.25(h) x (d)

Series: Histories of Economic Life #7

Rohit De is assistant professor of history at Yale University.

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CHAPTER 1

The Case of the Constable's Nose

POLICING PROHIBITION IN BOMBAY

THE SUMMER OF 1951 was an exceptionally hot one in Bombay. On May 29, Behram Khurshed Pesikaka, a middle-age government servant, left home after dinner for a drive around south Bombay to escape the oppressive heat. As he returned to his home on Wodehouse Road at 9:30 p.m., some people "emerged from behind a stationary vehicle and suddenly stepped out on the path of his jeep." Although he braked and swerved, he was unable to avoid them, and his jeep knocked down three members of a Sindhi family. The two women were hit by one of the front wheels, and the man was dragged some distance by the bumper. The police constable on the scene reported that Pesikaka's breath smelled of alcohol. Pesikaka was accordingly charged under the Indian Penal Code for rash and negligent driving as well as under the newly enacted Bombay Prohibition Act (BPA), which had made the consumption of alcohol without a license an offense.

During the trial the neighborhood watchman, an independent witness, testified that Pesikaka was driving at ordinary speed and exercising adequate care. Furthermore, the medical evidence confirmed that even though Pesikaka had smelled of alcohol, his pupils reacted to light, his speech was coherent, he was well behaved, and he could walk in a straight line. The police doctor testified that Pesikaka had not been acting under the influence of alcohol. Despite the serious injuries that he had inflicted on the victims, Pesikaka was acquitted of the charges of rash and negligent driving. However, the High Court decided to convict him under the BPA. The court held that the gist of the offense under the BPA lay in the mere consumption of liquor without a permit. It was entirely irrelevant whether the person who consumed liquor was drunk and incapable. Once the prosecution established that liquor was consumed, the burden of proof was on the accused to show that he had not consumed liquor illegally. Pesikaka, who was sentenced to one year in Arthur Road Jail, was one of hundreds of thousands of people convicted under the BPA. By the time the Prohibition regime was liberalized in 1964, more than four hundred thousand people had been convicted under Prohibition. Pesikaka's lawyers petitioned the Supreme Court of India by challenging the constitutionality of the Prohibition laws.

Prohibition laws in Bombay and in other provinces were among the earliest attempts by the postcolonial state to regulate the everyday life of its citizens. Prohibition had been written into the Constitution as a goal for the new state. This policy was a critical aspect of the state's attempt to fashion a postcolonial identity for itself while relying for its implementation on mechanisms of the colonial state. Central to the issue of drinking alcohol was the question of individual freedom. Yet even though the decision to drink was an exercise of will, the act of drinking could lead to a loss of self-control. The regulation of alcohol required the restriction of its movement and the creation of locations where drinks could and could not be consumed, limiting the freedom of movement of people and property. Thus the imposition of Prohibition had to be reconciled with the new constitutional rights to property, life, and liberty.

Compared to authoritarian regimes, liberal states have a greater difficulty enacting systems to control their citizens' habits of consumption. The state machinery and the mechanisms of government that had been developed in the colonial period did not have to represent the will of the subject. But these constituted the physical and ideological apparatus available to the postcolonial government, which sought to represent popular will.

The regulation of alcohol is an extremely productive example of how the major modes of governance interacted with one another. As an American study of Prohibition suggested, there are "few major problems of public administration which do not emerge in striking fashion with the governmental effort to control the consumption of alcohol." The act of drinking is governed by social and moral codes, religious rituals, and individual desires that differ widely across the population. It is simultaneously managed through medicalization, criminal law, licensing and zoning regulations, taxation, and health and safety regulations.

Despite the history of alcohol regulation since the nineteenth century and a prominent campaign for Prohibition, there is very little known about the subject. Most scholars have understood the history of Prohibition in India as a state or bourgeois project to transform the culture and practice of drinking in India, and they have looked to the strategies of resistance and co-optation that were adopted by the lower classes. Studies on the consumption of alcohol on the tribal population near Bombay have found that despite a short-lived temperance movement among tribal people (which sought to financially hurt moneylenders and landowners), drinking practices remained unchanged even in the face of coercive efforts by the state and co-optation by the nationalists. Social histories of Prohibition emphasize the resilience of the masses in their resistance to the bourgeois politics of Prohibition. Thus the failure of Prohibition and temperance is predicated on the gap between the masses and the state.

Pesikaka's case, and the dozens of legal challenges that preceded and followed it, demonstrate a way of citizen engagement with the state that did not turn on the notion of this gap. The Constitution, in these cases, was not an external force but a structure within which Prohibition could be resisted and negotiated. Pesikaka's case is significant for two reasons. First, it offers an extremely well-documented example of how citizens could find themselves in the grip of Prohibition laws while going about their everyday lives. Second, Pesikaka's constitutional strategy marked an important shift in how the legal system could be used to subvert the regime of Prohibition. The emergence and end of Prohibition in the 1950s was structured through these court cases and under the shadow of the Constitution. Pesikaka's case marked a turning point, when the debate about Prohibition moved from the question regulating individuals or populations to the question of regulating the state itself.

The Constitution transformed the debate over Prohibition in ways that the Constitution drafters had not anticipated. Central to the constitutionalization of the question was the reformulated idea of the public interest and its relationship to private interests. This chapter examines the history of alcohol regulation in India and seeks to locate Bombay's Prohibition policy among the larger apparatus of the postcolonial welfare state. It then moves to discuss the three distinctive forms of Prohibition litigation that emerged: the substantive constitutional challenge to the imposition of Prohibition, the procedural challenge to the implementation of Prohibition, and the impact of this self-conscious constitutional litigation on everyday criminal cases. Finally, it examines the effect of this litigation on the state's confidence in its ability to transform society through law.

Toward the Moral Nation: Prohibition and Nationalism

The Bombay Prohibition Act, under which Pesikaka was arrested, was a strict and draconian piece of legislation enacted as part of the total Prohibition policy adopted by the Congress Party government in Bombay in 1946. The government decided to introduce total Prohibition throughout the state over four years through a gradual cut in consumption of 25 percent a year. To this end, the BPA was enacted in 1949. It prohibited "the import, export, transport, manufacture, sale, purchase, possession, use, or consumption of any intoxicant, hemp, or the tapping of any toddy-producing tree, except ... in accordance with the terms and conditions of a license, permit, pass, or authorization granted under the Act." The criminalization of both the consumption and the possession of alcohol marks the BPA as a radical departure from the Prohibition regimes in the United States, Europe, and Canada, which focused on production and distribution.

Why did the BPA look so different from other contemporary experiments with Prohibition? The answer lies in the fact that the production and sale of alcohol in India had become a state project in colonial India. In Bombay it had been regulated by the Bombay Abkari Act of 1878 (Abkari literally meant "hard water"). The Abkari Act was essentially a revenue act that sought to generate maximum revenue with minimum compensation. Motivated by a need to increase profits, the government held a monopoly over the sale of liquor and auctioned licenses for the privilege to make and sell liquor in specific areas. Successful bidders then delegated their rights to selected village-level liquor dealers who did the actual jobs of manufacture and sale. This created a class of middlemen, often outsiders to the village economy, who had the incentive to raise liquor revenues. The Parsi community, which had access to other sources of capital, came to dominate the liquor trade in province of Bombay. We will return to the effects of the involvement of the Parsis in the liquor trade later in the chapter.

The Bombay Abkari Act had brought in a centralized system of distilleries and promoted new drinking practices, because village-based alcohol production provided more opportunities for revenue evasion. For instance, toddy (made from the sap of palm trees), the most popular form of liquor, was subject to prohibitive taxes because it had a short shelf life and could not be produced through centralized distilleries. Despite protests, there was a steady change in consumption habits in favor of factory-made liquor. The Bombay government also enacted the Mhowra Act in 1892, banning the collection and sale of mhowra flowers, which were used by Bombay's tribal population for food, cattle feed, and the brewing of alcohol.

Criminal law was used to regulate alcohol only to the extent that revenues were hurt. The highest number of prosecutions dealt with cases of the manufacture and sale of illicit liquor. A prototypical case was that of Pestonji Barjorji, a distiller of spirits whose license had expired. He was arrested under the Abkari Act after the police found the copper utensils used for distillation in his possession. Similarly, dealers or purchasers of mhowra flowers were also prosecuted. The emphasis was to protect a major source of British government revenue.

In contrast, postcolonial India's alcohol policy consisted of determined demands for social reform and not revenue needs. Middle-class temperance movements the world over had viewed alcoholic beverages as a root of social evil, particularly for the working class. While sharing that sentiment, the Indian temperance movement stressed that drinking itself was alien to Indian culture. Unlike in Britain, where liberal thought had criticized temperance projects as violations of individual liberty, temperance was almost a constitutive feature of Indian liberalism. This arose both from the belief that alcohol consumption was against Indian custom, which placed a premium on individual self-control and from the fact that the colonial government profited tremendously from alcohol. The foreignness of alcohol is difficult to establish empirically, but it is clear that drinking practices — the kind of alcohol preferred, the quantities of alcohol drunk, and the sites of consumption — were transformed by the colonial state. Revenue policies encouraged the consumption of industrial-produced, low-quality alcohol over home-brewed liquors like toddy and mhowra. Licensing rules shifted drinking to the new liquor shops and bars far away from fields and villages.

Prohibition became a part of the Congress Party's "constructive program" in the mid-1920s, popularized by Mohandas Gandhi. This was a combination of three strategic reasons: the opportunity to hurt imperial revenues, the ability to forge a common platform between Hindus and Muslims, and the influence of the global temperance movement. The differences between the nationalists and the colonial state were laid bare in the evidence submitted before the Bombay Prohibition Enquiry Committee, with the British members and liquor dealers supporting the status quo and the Indian representatives arguing for stricter regulation and Prohibition.

During civil disobedience movements on 1921 and 1930, Congress Party volunteers picketed liquor shops and sought to persuade drinkers to stop. Temperance volunteers noted the people who frequented liquor shops and reported them to their families and caste organizations. In Bombay presidency (province), social pressure and threats of boycott were extremely successful in curbing drinking. Noting with alarm the success of picketing in Bombay, W. Dillion, the collector, warned that this would lead to large losses in excise revenue and upset civic budget estimates. Not only were liquor sales affected, there were fewer participants and paltrier bids in the auction of liquor licenses. The colonial officials saw the demand for Prohibition as a ploy to destabilize the colonial state and not tied to values of temperance.

However, central to Gandhi's imagination was his view of drinking as a foreign custom that debilitated the body of the Indian worker and peasant and, by extension, the Indian body politic. The concept of swaraj implied freedom not just from foreign rule but also from foreign customs. Advocating total prohibition, he wrote that no country was "better fitted for immediate prohibition than India." First, drink was sapping the vitality of the working classes, "who had to be helped against themselves." Second, since the intellectual classes of India did not drink like those of Europe, there would be no referendum required. In this brief essay he spells out what emerged as the nationalist consensus on prohibition: Drink was a practice and a problem for the poor, not part of the elite culture in India as in Europe or the United States. The poor therefore had to be saved from themselves through an intervention of the enlightened classes. A drunkard was a diseased man, he wrote, "quite unable to help himself."

Gandhi too recognized that temperance could not be achieved merely by giving speeches and through propaganda. "Why do people drink?" he asked. "They drink because they are suffocated living in pestilential dens." Gandhi was empathetic toward poor drinkers, recognizing that for some it was the only way they could escape their wretched daily conditions. He urged volunteers to visit the homes of drinkers to educate them on the ills of liquor, to persuade liquor vendors to stop selling alcohol, and to picket liquor shops.

However, although the improvement of their conditions was essential, and persuasion was important, he emphasized that the prohibition of intoxicating liquor would ultimately have to be by law. Recognizing that the colonial state was unlikely to damage its revenue base, Gandhi stated that such a law would not come into being until "pressure from below is felt in no uncertain manner." He rejected the "specious argument" that India could not be made sober by compulsion and that those who wished to drink should have facilities provided to them. "The state does not cater to the vices of its people," he wrote. "We do not regulate or license houses of ill fame. We do not provide facilities to thieves to indulge their propensity for thieving. I hold drink to be even more damnable than thieving and perhaps even prostitution. Is it not often the parent of both?"

Addressing Congress Party workers at Bardoli in 1929, Gandhi highlighted that swaraj could not be established merely by "driving out the English." Swaraj did not mean "the freedom to live like pigs in a pigsty without help or hindrance from anyone." Self-governance would therefore require Prohibition to create a healthy public. He famously reiterated, "If I were appointed dictator for one hour for all India, the first thing I would do would be to close without compensation all the liquor shops [and] destroy all the toddy palms such as I know them in Gujarat."

The emphasis on social transformation through the will of the state was unusual for Gandhi, who had always urged that social reform must first come through the inner transformation of the people. He argued against the use of law and compulsion in all his other constructive projects, be it the emotive questions of cow protection and untouchability or developmental works such as the improvement of sanitation and hygiene. For Gandhi, constructive work and reform were necessary not just as a duty to the project of nation making but also to the self, to regain the power of action. Drink more than anything else damaged the self and took away the power of action.

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What People are Saying About This

Table of Contents

Abbreviations ix

Introduction 1

The Constitution as Triumph 5

The Constitution as Illusion 7

The Republic of Writs 9

The Supreme Court of India: A Public and Secret Archive 15

Book Schema 18

Rethinking the People's Constitution: The Constitution 20

Rethinking the People's Constitution: The People 25

1 The Case of the Constable's Nose: Policing Prohibition in Bombay 32

Toward the Moral Nation: Prohibition and Nationalism 35

Constitutionalizing Prohibition 39

Creating Sober Citizens: Disciplining Drunkenness 41

The Fundamental Right to Drink: Balsara v. State of Bombay 47

The Test Case for the New Republic 51

Smelling Like a State: Procedural Justice under the Law of Prohibition 58

The Public Interest, Private Interests, and Parsi Interests 63

Prohibition, Law, and the Question of Postcolonial Sovereignty 68

2 The Case of the Excess Baggage: Commodity Controls, Market Governance, and the Making of Administrative Law 77

The Wartime System of Controls 80

Controls and Freedom in the New Republic 86

The New Economic Criminal 92

"The Marwari Occupants of the Lucknow Bogie": Caste, Criminality, and Constitutionalism 99

Marwaris and the New Regulatory Order 101

Criminal Law and Constitutional Strategies 106

Separating Powers in the Indian Republic 108

The Delhi Laws Act Problem 112

The Baglas in Court 112

The Arbitrary Administrator: The Shadow of the Bagla Case 114

The Rule of Law in a Planned Society: Controls and the Birth of Administrative Law 117

The Trader as a Constitutional Actor 120

3 The Case of the Invisible Butchers: Economic Rites and Religious Rights 123

From the Queen Empress to the Gau Maharani: Cows, Community, and Sovereignty 125

From the Streets to the Courts: Imperial Constitutionalism and Bovine Litigation 127

Constitutionalizing the Cow 130

Thinking Nationally, Acting Locally: Municipal Management of Cow Slaughter 135

The Shield of Legislation: Cow Protection in the Provincial Assembly 144

Taking Cows to the Supreme Court 148

Religion versus Profession 150

Economy versus Identity 153

Making Economic Policy in the Supreme Court 157

The New Bovine Order 163

4 The Case of the Honest Prostitute; Sex, Work, and Freedom in the Indian Constitution 169

Constituting Women in the New Republic 171

The Birth of SITA: The Making of a Postcolonial Prostitution Law 176

A Representative Prostitute: Husna Bai and Subaltern Legal Mobilization 180

Living with Regulations: Alternatives to Constitutional Litigation 182

Reclassification as Resistance 189

The Prostitute as a Citizen: Disrupting Older Narratives 189

The Right to Practice the "World's Oldest Profession" 191

The Geography of Freedom: Eviction and the Freedom of Movement 196

From Husna Bai to Kaushalya Devi: The Legacy of a Court Decision 203

Conclusion 209

Epilogue 215

Talking the State's Language 217

Procedure over Substance 219

Constitutionalism from the Margins 222

A Constitution for Butchers? Markets, Circulation, and the Origin of Rights 224

Acknowledgments 229

Notes 235

Selected Bibliography 277

Index 287