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

When law and society scholars do focus on court decisions, they do not simply resort to published court opinions, especially the final judgments of apex courts on which conventional legal scholars typically place the most weight.

The Supreme Court of India is located on seventeen acres in the heart of New Delhi. Built in 1958 and designed by Ganesh Bhikaji Deolalikar, the first Indian to head the Public Works Department, the white and red sandstone complex closely mimics the architectural style of the colonial public buildings in New Delhi. The complex itself is shaped to symbolize the scales of justice. A majestic red sandstone staircase directs visitors and the public gaze toward a high colonnaded gallery that wraps around the building.

Much of the public business of the court is carried out at this level. The colonnade leads to multiple wood-paneled courtrooms hung with portraits of legal luminaries. Litigants, visitors, clerks, and interns mill around the court­room. Bored policemen desultorily pat down visitors and confiscate the occasional mobile phone. The judges, preceded by magnificently turbaned ushers in gilded uniforms, move through their own private red-carpeted corridors, where conversation is carried out in hushed tones. Stoic court officials in black jackets fill up the offices in both wings, slowly moving reams of paperwork. Cutting through all the spaces are hundreds of black-robed lawyers, arguing, gossiping, and occasionally sprinting between courtrooms with their robes billowing around them.

However, underneath the public archive, buried in the basement, is the Supreme Court Record Room, which stores the entire proceedings of the cases: the arguments made by the lawyers, the affidavits and evidence pro­duced before the court, transcripts of witness statements, maps of crime scenes, the occasional bloodstained physical evidence, and so on. In 2010 I became the first scholar to work with materials in this “secret” archive.

The aura of secrecy around the Supreme Court Record Room (and the record rooms of the lower courts) is partly physical, in terms of difficulty of access, and partly methodological, in terms of its value as a source. No formal procedure exists for researchers to consult Supreme Court records; access is granted at the discretion of the registrar. Furthermore, legal scholars empha­size the final reported judgment because it is the only document with future consequences and precedent value. The chief justice of India, who very generously gave me permission to consult the records and work in the court, was bemused by my goal. “The judgments are available online,” he reminded me twice, emphasizing that I need not spend several months in the musky interior of the record room. Court officials, while personally welcoming me, were unsure where to place me. The usual visitors to the record room were Advocates-on-Record who wanted to consult a specific file on a case that was usually subject to a continuing litigation, and these individuals left within a few minutes after cross-checking details.

In order to understand the process of constitutional change, I sought early challenges to the new regulatory authorities and legislation that were set up as part of the state project to transform society and the economy, which emerged as critical cases. These cases became important as legal precedents and also resonated outside the legal sphere, in the form of discussions within the government or in the public sphere. Thus some, like the cow slaughter case, were repeatedly and frequently cited by early law textbooks and commen­tators; others, like the prostitution case, generated anxious correspondence between bureaucrats in state archives; still others, like the Prohibition case, were extensively discussed in newspapers and cartoons. The constitutional archive, while centered in the record room, is much larger than the records it contains.

Another important feature of this archive that became apparent to me was that the challenges to particular regulatory laws were dominated by individuals who belonged to the same caste or community. Since South Asian names mark both religion and caste, I first noticed this phenomenon when looking at the registers of case names, but a close examination of the case file showed that litigants almost always identified themselves by the community they belonged to. Minority communities (of caste and religion) appeared to be overrepresented in the courts, which shows that they took the state's obligations to protect them seriously. This book provides evidence that elect­oral minorities - that is, members of communities that were unlikely to represent themselves through electoral democracy because of class, sex, or race - were overrepresented before the courts in constitutional cases.

Although such a study cannot be exhaustive, this book attempts to capture the broadest range possible of regulatory measures and geographical distribu­tion, ranging from Bombay to Bengal and covering large cities, small towns, and rural settings. Much of the existing scholarship on the Constitution is organized on the evolution of particular rights, largely property, free speech, and religious liberty, and is written to explain the evolution of that particular right to the present moment. This book's analytic frame is the new regulatory state that emerged in the 1950s, and it pays considerable attention to the underexplored areas of civil liberties (e.g., freedom of profession) as well as the field of administrative law. Questions over the right to property, religion, equality and free speech are also explored.

9.5