Pub Date : 2018-12-31DOI: 10.1515/9780691185132-011
{"title":"Constitutionalism from the Margins","authors":"","doi":"10.1515/9780691185132-011","DOIUrl":"https://doi.org/10.1515/9780691185132-011","url":null,"abstract":"","PeriodicalId":268985,"journal":{"name":"A People's Constitution","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130499736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-11-27DOI: 10.23943/PRINCETON/9780691174433.003.0002
Rohit De
This chapter discusses the litigation over the imposition of a draconian Prohibition regime on Bombay. The Prohibition laws in Bombay and other provinces, brought in to enforce Article 47 of the Constitution, were among the earliest attempts by the postcolonial state to regulate the everyday life of its citizens. The Prohibition policy was a critical aspect of the attempt of the state to fashion a postcolonial identity for itself by freeing its citizens from what it called the foreign practice of drinking. However, it relied on the mechanisms of the colonial state for its implementation, opening up questions about state involvement in private life and the role of the police in a democracy. Given that the majority of litigants were Parsis (Indian Zoroastrians), a community with strong links to the liquor trade, the chapter also considers the emerging idea of public interest and the relationship between liberty, property, and community identity.
{"title":"The Case of the Constable’s Nose","authors":"Rohit De","doi":"10.23943/PRINCETON/9780691174433.003.0002","DOIUrl":"https://doi.org/10.23943/PRINCETON/9780691174433.003.0002","url":null,"abstract":"This chapter discusses the litigation over the imposition of a draconian Prohibition regime on Bombay. The Prohibition laws in Bombay and other provinces, brought in to enforce Article 47 of the Constitution, were among the earliest attempts by the postcolonial state to regulate the everyday life of its citizens. The Prohibition policy was a critical aspect of the attempt of the state to fashion a postcolonial identity for itself by freeing its citizens from what it called the foreign practice of drinking. However, it relied on the mechanisms of the colonial state for its implementation, opening up questions about state involvement in private life and the role of the police in a democracy. Given that the majority of litigants were Parsis (Indian Zoroastrians), a community with strong links to the liquor trade, the chapter also considers the emerging idea of public interest and the relationship between liberty, property, and community identity.","PeriodicalId":268985,"journal":{"name":"A People's Constitution","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127082733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-11-27DOI: 10.23943/PRINCETON/9780691174433.003.0004
Rohit De
This chapter explores the transformation of the political agitation over cow protection by the enactment of the Constitution. Although the debate over cow protection had always been framed in terms of the religious rights of Hindus and Muslims, the Constitution met the demands for cow protection on ostensibly neutral economic grounds and laid it down in Article 48 as a directive principle of state policy. After partition and democratic elections, the new elected state governments of north India enacted strict laws prohibiting cow slaughter and criminalizing the consumption of beef. The chapter then looks at a writ petition brought by three thousand Muslim butchers—possibly India's first class-action suit—that challenged these bans through a language of economic rights rather than religious freedom. Ultimately, it addresses how religious freedom, minority rights, and political mobilization were transformed through the emergence of the Constitution as a site for politics.
{"title":"The Case of the Invisible Butchers","authors":"Rohit De","doi":"10.23943/PRINCETON/9780691174433.003.0004","DOIUrl":"https://doi.org/10.23943/PRINCETON/9780691174433.003.0004","url":null,"abstract":"This chapter explores the transformation of the political agitation over cow protection by the enactment of the Constitution. Although the debate over cow protection had always been framed in terms of the religious rights of Hindus and Muslims, the Constitution met the demands for cow protection on ostensibly neutral economic grounds and laid it down in Article 48 as a directive principle of state policy. After partition and democratic elections, the new elected state governments of north India enacted strict laws prohibiting cow slaughter and criminalizing the consumption of beef. The chapter then looks at a writ petition brought by three thousand Muslim butchers—possibly India's first class-action suit—that challenged these bans through a language of economic rights rather than religious freedom. Ultimately, it addresses how religious freedom, minority rights, and political mobilization were transformed through the emergence of the Constitution as a site for politics.","PeriodicalId":268985,"journal":{"name":"A People's Constitution","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115258498","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-11-27DOI: 10.23943/princeton/9780691174433.003.0006
Rohit De
This epilogue highlights the three connected themes that emerge from the cases studied in this book: the process through which the Indian Constitution emerged as an organizational assumption and a background threat for the state; the greater acceptability of procedural over substantive challenges to government action; and the origins of constitutional consciousness among certain citizens. Constitutional law became the field in which citizens marked as deviant in the new order could recast themselves as virtuous constitutional actors. These citizens differed in the extent of their marginality. However, all their cases carved out rules and norms that benefited a larger populace. Regardless of the court's judgments, people created and disseminated their own meanings of the Constitution, which may even be a successful insurgent and displace the elite conception of the law.
{"title":"Epilogue","authors":"Rohit De","doi":"10.23943/princeton/9780691174433.003.0006","DOIUrl":"https://doi.org/10.23943/princeton/9780691174433.003.0006","url":null,"abstract":"This epilogue highlights the three connected themes that emerge from the cases studied in this book: the process through which the Indian Constitution emerged as an organizational assumption and a background threat for the state; the greater acceptability of procedural over substantive challenges to government action; and the origins of constitutional consciousness among certain citizens. Constitutional law became the field in which citizens marked as deviant in the new order could recast themselves as virtuous constitutional actors. These citizens differed in the extent of their marginality. However, all their cases carved out rules and norms that benefited a larger populace. Regardless of the court's judgments, people created and disseminated their own meanings of the Constitution, which may even be a successful insurgent and displace the elite conception of the law.","PeriodicalId":268985,"journal":{"name":"A People's Constitution","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116578161","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-11-27DOI: 10.23943/princeton/9780691174433.003.0003
Rohit De
This chapter examines a series of administrative law challenges to the Essential Commodities Act. Independent India retained commodity controls that were established to meet wartime shortages but had become a permanent instrument for addressing the needs of the developmentalist state. The system of commodity controls exemplified the permit-license-quota Ra—a form of economic regulation that characterized the Nehruvian state—and sought to discipline the market economy by criminalizing economic offenses. Economic offenders, often petty traders from the Marwari community who were denied political legitimacy, sought to challenge this new criminal law through the language of constitutionalism. Complicating the view that this system of controls contributed to a culture of corruption, the chapter argues that judicial review of administrative action—the hallmark of the rule of law in a state—emerged in India from this illegality and culture of corruption.
{"title":"The Case of the Excess Baggage","authors":"Rohit De","doi":"10.23943/princeton/9780691174433.003.0003","DOIUrl":"https://doi.org/10.23943/princeton/9780691174433.003.0003","url":null,"abstract":"This chapter examines a series of administrative law challenges to the Essential Commodities Act. Independent India retained commodity controls that were established to meet wartime shortages but had become a permanent instrument for addressing the needs of the developmentalist state. The system of commodity controls exemplified the permit-license-quota Ra—a form of economic regulation that characterized the Nehruvian state—and sought to discipline the market economy by criminalizing economic offenses. Economic offenders, often petty traders from the Marwari community who were denied political legitimacy, sought to challenge this new criminal law through the language of constitutionalism. Complicating the view that this system of controls contributed to a culture of corruption, the chapter argues that judicial review of administrative action—the hallmark of the rule of law in a state—emerged in India from this illegality and culture of corruption.","PeriodicalId":268985,"journal":{"name":"A People's Constitution","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124459031","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-11-27DOI: 10.23943/PRINCETON/9780691174433.003.0005
Rohit De
This chapter studies the new laws against prostitution, enacted to enforce Article 23 of the Constitution, which sought to end the trafficking of women. For nationalists and leaders of the Indian women's movement, independence meant the achievement of constitutional and legal equality and the emergence of the republican female citizen as a moral, productive member of society. However, legislators and social workers were confronted by a different conception of freedom when sex workers began to file constitutional challenges to the anti-trafficking laws. They asserted their constitutional right to a trade or a profession and to freedom of movement around the country, and they challenged the procedural irregularities in the new statutes. The chapter then demonstrates that despite the sex workers' minimal success in the courts, this litigation prompted mobilization and associational politics outside the court and brought rights language into the everyday life of the sex trade.
{"title":"The Case of the Honest Prostitute","authors":"Rohit De","doi":"10.23943/PRINCETON/9780691174433.003.0005","DOIUrl":"https://doi.org/10.23943/PRINCETON/9780691174433.003.0005","url":null,"abstract":"This chapter studies the new laws against prostitution, enacted to enforce Article 23 of the Constitution, which sought to end the trafficking of women. For nationalists and leaders of the Indian women's movement, independence meant the achievement of constitutional and legal equality and the emergence of the republican female citizen as a moral, productive member of society. However, legislators and social workers were confronted by a different conception of freedom when sex workers began to file constitutional challenges to the anti-trafficking laws. They asserted their constitutional right to a trade or a profession and to freedom of movement around the country, and they challenged the procedural irregularities in the new statutes. The chapter then demonstrates that despite the sex workers' minimal success in the courts, this litigation prompted mobilization and associational politics outside the court and brought rights language into the everyday life of the sex trade.","PeriodicalId":268985,"journal":{"name":"A People's Constitution","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128967723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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