Rule of law, rule of life: Caste, democracy, and the courts in India

American Historical Review

Volumn 115, Issue 2, 2010, Pages 406-427

  Gilmartin, David ^a  

^a NORTH CAROLINA STATE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 77951181330     PISSN: 00028762     EISSN: None     Source Type: Journal    
DOI: 10.1086/ahr.115.2.406     Document Type: Article

References (78)

1. Barrington Moore, Social Origins of Dictatorship and Democracy: Lord and Peasant in the Making of the Modern World (Boston, 1966);
2. George Ross, Theda Skocpol, Tony Smith, and Judith Eisenberg Vichniac, "Barrington Moore's Social Origins and Beyond: Historical Social Analysis since the 1960s," in Theda Skocpol, ed., Democracy, Revolution, and History (Ithaca, N.Y., 1998), 1-24.
3. Patrick Heller, "Degrees of Democracy: Some Comparative Lessons from India," World Politics 52, no. 4 (2000): 484-519.
4. Heller emphasizes the important differences (due to differing social configurations) in how democracy operates in different parts of India.
5. Ernesto Laclau, "Universalism, Particularism, and the Question of Identity," October 61 (Summer 1992): 90.
6. See J. C. Heesterman, The Inner Conflict of Tradition: Essays in Indian Ritual, Kingship, and Society (Chicago, 1985).
7. David Gilmartin, trans., "Muslim League Appeals to the Voters of Punjab for Support of Pakistan," in Barbara Metcalf, ed., South Asian Islam in Practice (Princeton, N.J., 2009), 419.
8. For a discussion of Iqbal's framing of this vision of the self, particularly with respect to Husain and Karbala, see Syed Akbar Hyder, "Iqbal and Karbala," Cultural Dynamics 13, no. 3 (2001): 339-362.
9. The importance of this dialectic in the construction of the self is discussed in Barbara Metcalf, ed., Moral Conduct and Authority: The Place of Adab in South Asian Islam (Berkeley, Calif., 1984), 10.
10. Eastern Times (Lahore), October 13, 1943.
11. Gilmartin, "Muslim League Appeals," 417-418, 422-423.
12. Speech of Sardar Muhammad Shafi, rais of Ganja Kalan, All-India Arain Conference, Jalalabad (Bijnor District, UP), March 1947, in Ali Asghar Chaudhri, Tarikh-i Ara'iyan (Lahore, 1973), 172-173.
13. Al-Rai, February 14, 1939.
14. It should be stressed here that this analysis is not intended to encompass all aspects of the campaign for the creation of Pakistan, but rather to examine in particular the projection of the demand for a new state within the context of India's electoral system.
15. A careful tracing of the complex influence of these ideas is well beyond the scope of this essay. There was much ill-focused discussion in India's early years of democracy's roots in (ancient) Hindu tradition. That Islamicate ideas had undoubtedly influenced "Hindu" ideas of state-building in modern India is suggested by the work of Andre Wink on the Marathas. Wink, Land and Sovereignty in India: Society and Politics under the Eighteenth-Century Maratha Svarajya (Cambridge, 1986).
16. Some perspective on the complex fate of old Indian ideas on state-making in the modern period can be found in the essays in Martin Doornbos and Sudipta Kaviraj, eds., Dynamics of State Formation: India and Europe Compared (New Delhi, 1997).
17. To put forward this contrast is not to deny the central importance in Pakistan's case also of secular, European constitutional ideas. It is rather to highlight the fact that India's dominant constitutional discourse did not conflate the nation with a religious community.
18. Charles Taylor, Philosophical Arguments (Cambridge, Mass., 1997), 228, 241.
19. See also Patrick Riley, The General Will before Rousseau: The Transformation of the Divine into the Civic (Princeton, N.J., 1986).
20. The best account of liberalism's distinctive colonial forms is Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago, 1999).
21. Mehta's work has been very helpful for this analysis, although his emphases are somewhat different from those at the heart of this essay.
22. Dennis Dalton, Mahatma Gandhi: Nonviolent Power in Action (New York, 1993), 12-29.
23. Gandhi's ideas were, of course, deeply embedded in Hindu imagery. In contrast to the appeal for Pakistan (and to certain strands of Hindu nationalist thinking), however, he explicitly rejected any externally defined religious community (or distinctive, particularistic law) as a frame for his vision of universal moral principle. His view of Hindu law was illustrative: "Nothing in the Shastras which is manifestly contrary to universal truths and morals can stand; ⋯ nothing in the Shastras which is capable of being reasoned can stand if it is in conflict with reason."
24. Gandhi, "Caste Has to Go," November 16, 1935, in Rudrangshu Mukherjee, ed., The Penguin Gandhi Reader (New Delhi, 1993), 222. This suggests an important comparison with Pakistan. The Pakistan movement was marked by tensions between the universality of appeals to Islamic moral models and a conception of "Muslim community" that was widely associated with a distinctive, substantive law (shariat ) that had been strongly particularized by the structure of colonialism. This tension was to have a powerful and problematic effect in Pakistan's subsequent attempts at constitutional state-building, but that is a comparison that is beyond our focus here.
25. R. Sudarshan, " 'Stateness' and Democracy in India's Constitution," in Zoya Hasan, E. Sridharan, and R. Sudarshan, eds., India's Living Constitution (Delhi, 2002), 159-178.
26. On the "developmental" state, see also Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton, N.J., 1993), 200-219.
27. For some members of the Constituent Assembly, the association of dharma with higher powers of self-cultivation, and thus with elite sensibilities, was in fact so strong that full recognition of the sovereignty of the "people" as a whole was open to serious debate. The comments of Brajeshwar Prasad in this regard are suggestive. Although he asserted that "Dharma is in consonance with the fundamental principles of Democracy," and that "a State based on Dharma will never tolerate economic inequality or social injustice," he nevertheless went on to declare that dharma "will never accord recognition to popular will as the basis of Government. For the will of man is nasty, brutish and short." Constituent Assembly Debates, November 24, 1949.
28. S. P. Sen-Verma, Adult Franchise (New Delhi, 1971), 10-11
29. emphasis added. Sen-Verma's view here resonates with a common imperial view of India as always on the track of "becoming" yet never catching up with a modernity embedded in Europe's experience as a master model. The power of such a view has been clearly delineated in Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, N.J., 2000), 3-23.
30. Yet it is important to note that the transposition of this from a political/cultural narrative of "modernity" into a narrative of the never-ending struggle within the self casts it in a somewhat different light.
31. Subhash C. Kashyap, Citizens and the Constitution (New Delhi, 1997), 36.
32. The use of natural and environmental metaphors here suggests the larger naturalization of the underpinnings of Indian democracy. The view of nature underlying this can be traced to engineering assumptions about rivers in the nineteenth century.
33. See David Gilmartin, "Imperial Rivers: Irrigation and British Visions of Empire," in Dane Kennedy and Durba Ghosh, eds., Decentring Empire: Britain, India and the Transcolonial World (London, 2006), 83-86.
34. Susan Bayly, Caste, Society and Politics in India from the Eighteenth Century to the Modern Age (Cambridge, 1999);
35. Nicholas B. Dirks, Castes of Mind: Colonialism and the Making of Modern India (Princeton, N.J., 2001).
36. Christophe Jaffrelot, "Sanskritization vs. Ethnicization in India: Changing Identities and Caste Politics before Mandal," Asian Survey 40, no. 5 (2000): 758;
37. emphasis in original. Frank Conlon, "Caste by Association: The Gauda Sarasvata Brahmana Unification Movement," Journal of Asian Studies 33, no. 3 (May 1974): 365.
38. For a broader study of caste's adaptiveness in these terms, see Lloyd I. Rudolph and Susanne Hoeber Rudolph, The Modernity of Tradition: Political Development in India (Chicago, 1967), 17-154.
39. Satish Saberwal, "Introduction: Civilization, Constitution, Democracy," in Hasan, Sridharan, and Sudarshan, India's Living Constitution, 13.
40. The ubiquitousness of caste in politics was suggested by the fact that, even in many court cases, references to caste appeared simply as part of the inevitable political background for judicial discussion of a range of other electoral issues. For a good example, see Raghubir Singh Yadav v. Gajendra Singh and others, 43 ELR 214 (Allahabad High Court, 1969).
41. Here caste was simply background noise that was an inevitable part of elections. For a similar view of biradari in a case from the Punjab, see Partap Singh v. Nihal Singh Takshak and others, 3 ELR 31 (PEPSU Election Tribunal, 1953).
42. This was itself an illustration of how a universal constitutional principle, that of equality, was asserted as an ideal even as the real world dictated that caste inequality had to be recognized to maintain that ideal. Even as the state rejected in constitutional principle discrimination based on caste, it had to issue "caste certificates" to identify caste background as a mandatory element in a candidate's qualifications to stand in constituencies reserved for scheduled castes and tribes. This was so contrary to the law on the corrupt nature of electoral appeals relating to caste that the courts at times had to take specific notice of the obvious contradiction. See, for example, Reghu Mahesh alias Regu Maheswar Rao v. Rajendra Pratap Bhanj Dev and another, 2004 1 SCC 46 (Supreme Court appeal from Andhra High Court).
43. For the larger legal and political background to the problem of caste reservations in India, see Marc Galanter, Competing Equalities: Law and the Backward Classes in India (Delhi, 1984).
44. Anand Ballabh Kafaltiya, Democracy and Election Laws (New Delhi, 2003), 229.
45. As one Supreme Court judge explained, "The Constitution has provided for a form of government by the People's representatives democratically elected on the basis of adult franchise irrespective of caste, creed, race, or sex." Lakshmi Charan Sen v. A. K. M. Hassan Uzzaman & others, in Election Commission of India, Landmark Judgements on Election Law, 4 vols. (New Delhi, 1999), 2: 89
46. The Representation of the People Act specifically banned "the systematic appeal to vote or refrain from voting on grounds of caste, race, community, or religion or the use of, or appeal to, religious and national symbols." For some of the British and colonial background on India's election law, see David Gilmartin, "Election Law and the 'People' in Colonial and Postcolonial India," in Dipesh Chakrabarty, Rochona Mazumdar, and Andrew Sartori, eds., From the Colonial to the Postcolonial: India and Pakistan in Transition (Delhi, 2007), 55-82.
47. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and others, AIR 1975 SC 1788 (Supreme Court Appeal from Bombay High Court, 1975).
48. Caste was listed in the act along with other prohibited grounds for appeals "to vote or refrain from voting." These included religion, race, community, and (after 1961) language. The use of appeals to religious or national symbols "for the furtherance of the prospects of the election" of a candidate was also forbidden. P. C. Jain and Kirin Jain, Chawla's Elections: Law and Practice, 8th ed. (New Delhi, 2004), Sec. 2, 152.
49. Speech by J. Nehru to public meeting, Delhi, October 2, 1951 (original speech in Hindi), in S. Gopal, ed., Selected Works of Jawaharlal Nehru, 2nd ser., vol. 16 (New Delhi, 1994), pt. 2, 102-104.
50. Nehru to G. B. Pant, October 25, 1951, ibid., 53.
51. Nehru to Morarji Desai, October 27, 1951, ibid., 56.
52. Sadiq Ali, The General Elections, 1957: A Survey (New Delhi, 1959), 78-80.
53. The constitution of election tribunals (usually with three judges) dated back to the 1919 reforms in India. Because of arguments surrounding the jurisdiction of the courts and the nature of appeals in election cases, these were done away with in the late 1950s, after which election petition cases were heard directly by the High Courts, with appeals going to the Supreme Court.
54. Most important here were charges of corrupt appeals to religion, which prompted arguments similar to those surrounding caste. See, for example, Pratap Bhanu Mehta, "Passion and Constraint," Seminar 521 (January 2003): 57, http://www.india-seminar.com/2003/521/521%20pratap%20bhanu%20 mehta.htm.
55. Shiv Dutt and others v. Bhansidas Dhangar and others, 9 ELR 324 (Election Tribunal, Faizabad, 1954). The dissent is by M. U. Faruqi and the majority opinion by Raghunandan Saran.
56. India, Parliamentary Debates 40, no. 16 (May 9, 1951): cols. 8365-8366.
57. Ambika Saran Singh v. Mahant Mahadev Nand Giri, 41 ELR 183 (Supreme Court appeal from Patna High Court, 1969); emphasis added. The case against the appellant, who claimed in his defense that other candidates in the constituency had also appealed to caste, was strengthened in this case by the fact that the losing candidate was a sadhu (mendicant) who claimed to have renounced his caste.
58. Indeed, as in the case of the Arain biradari in the run-up to the creation of Pakistan discussed earlier, this case suggested the difficulties in presenting caste appeals as the antithesis of higher ideals in any simple way. For some discussion of the broad connections between politics and caste-based reform movements in this particular region, see William R. Pinch, Peasants and Monks in British India (Berkeley, Calif., 1996), 83-84, 131-136.
59. Sachidanand Singh v. Biswanath Rai, 43 ELR 316 (Patna High Court, 1969). While the court found in this case that the appeal to vote "on the ground of caste" was corrupt, it distinguished this from a simple appeal "to a caste" to vote in a particular way. The latter had been held not to be corrupt in an earlier case involving an appeal to Yadavs (Rustom Satin v. Dr. Sampoornanand and others, 20 ELR 221
60. While the court found in this case that the appeal to vote "on the ground of caste" was corrupt, it distinguished this from a simple appeal "to a caste" to vote in a particular way. The latter had been held not to be corrupt in an earlier case involving an appeal to Yadavs (Rustom Satin v. Dr. Sampoornanand and others, 20 ELR 221 [Allahabad High Court, 1958]).
61. But for a similar case holding an appeal to Yadav caste solidarity to be a corrupt practice in Bihar, see also Bhupendra Narain Mandal v. Ek. Narain Lal Das and others, 26 ELR 407 (Patna High Court, 1964).
62. In this case also, a key ingredient, as the court put it (in discussing a leaflet titled "An Appeal to the Yadav Brethren of the Saharsa Parliamentary Constituency"), was the degree to which caste was projected as an identity that transcended and was separate from any party program: "From the tenor of this document," the judges noted, "it is clear that the emphasis is on the castes of the respective candidates and not on whether they were members of the Congress or the Socialist Party." Here, too, the election was voided.
63. The High Court also dismissed in this case the notion that "Gond" referred to a "tribe" rather than a caste and thus fell outside the prohibitions of Section 123 (3). Whether "Gond" was a caste name in the sense of an exclusive class in "Hindu society" was, the court implied, an irrelevant consideration. Amichand v. Pratap Singh and others, 27 ELR 135 (Madhya Pradesh High Court, 1965).
64. Lalroukung v. Haokholal Thangjom and another, 41 ELR 35 (Supreme Court appeal from Judicial Commissioner, Manipur, 1969).
65. Abdul Hussain Mir v. Shamsul Huda, AIR 1975 SC 1612 (Supreme Court appeal from Guwahati High Court, 1975). The case hinged not just on appeals to caste and tribe, but also on the appeal to religion (though the candidate's originally Hindu tribal mother had in fact converted at marriage to Islam).
66. Ibid. "In a pluralist society like ours, a certain irremovable residuum of 'minority complex' will haunt the polls," Iyer wrote, "as it may, perhaps in a lesser measure, in the United States or even the United Kingdom. A Jew, a black, a Catholic or an Indian or woman will, without special appeals in that behalf, rouse prejudices for and against in some countries." The reality of particularistic difference in elections, in other words, was politically inescapable, whether overtly appealed to or not.
67. For a discussion of this argument, see Ashutosh Varshney, "Is India Becoming More Democratic?" Journal of Asian Studies 59, no. 1 (February 2000): 3-25.
68. For the idea of a new "democratic upsurge" in India, see Yogendra Yadav, "Understanding the Second Democratic Upsurge: Trends of Bahujan Participation in Electoral Politics in the 1990s," in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava, and Balveer Arora, eds., Transforming India: Social and Political Dynamics of Democracy (Delhi, 2000), 120-145.
69. See Varshney, "Is India Becoming More Democratic?" 12-13. The concerns here are hardly confined to caste, but reflect concern with wider forms of corruption in government, parliamentary procedure, and electoral life.
70. "Review of the Working of Political Parties Specially in Relation to Elections and Reform Options," consultation paper drafted by Professor R. B. Jain for the Advisory Panel on "Electoral Reforms and Standards in Political Life," in Report of the National Commission to Review the Working of the Constitution, under the chairmanship of Justice Venkatachaliah (New Delhi, 2002), vol. 2, book 1, 434.
71. One should note here that such views were not just those of a secular elite, but reflected also the views of many in the Hindu nationalist Bharatiya Janata Party (which had appointed the commission), who decried lower-caste "casteism" while seeing upper-caste power as simply natural and not reflective of "casteism" at all.
72. For a discussion of these issues, though from a slightly different perspective, see Anupama Rao, "Ambedkar and the Politics of Minority: A Reading," in Chakrabarty, Mazumdar, and Sartori, From the Colonial to the Postcolonial, 137-156.
73. William Pinch's work on the connections between Vaisnava reform and caste uplift in nineteenthand early-twentieth-century North India indicates this. Pinch's analysis of the Ramanandi order suggests how, paradoxically, caste had come to be viewed by some reformers as the amoral antithesis of universalizing bhakti (devotional) equality, even as it offered at the same time a vehicle for moral regeneration and caste uplift linked to Ram as a kshatriya (warrior) model. See Pinch, Peasants and Monks in British India, 99-107.
74. For some hints of such influence, see Kanchan Chandra, "The Transformation of Ethnic Politics in India: The Decline of Congress and the Rise of the Bahujan Samaj Party in Hoshiarpur," Journal of Asian Studies 59, no. 1 (February 2000): 36-38.
75. The role of anthropologists has been important in understanding such contradictory constructions of caste; see, for example, Lucia Michelutti, The Vernacularisation of Democracy: Politics, Caste and Religion in India (London, 2008).
76. Chatterjee in fact sees a growing opposition between the "universal ideal of civic nationalism," on the one hand, and the "particular demands of cultural identity," on the other, as symptomatic of a transition in India (under global pressures) from a system based on popular sovereignty to one based on "governmentality." But, as has been suggested here, this tension was, from the beginning, at the very root of popular sovereignty, and thus of democracy itself. Partha Chatterjee, The Politics of the Governed: Reflections on Popular Politics in Most of the World (New York, 2004), 3-8.
77. Although based initially on British models, judicial intervention in elections is now of far wider scope in India than in Britain (or in most other countries). As Rajeev Dhavan has recently put it, writing on the judicial cases that commonly follow elections in India, "Indian democracy is visited with much greater post-electoral disputes than any other country in the world." Dhavan, "Whither Indian De- mocracy?" The Hindu, April 26, 1996.
78. An appreciation of the full scope of judicial electoral intervention, however, must include an assessment not only of the role of the courts but also of the Indian Election Commission, which runs Indian elections at both the state and national levels. There is discussion of the Election Commission in David Gilmartin, " 'One Day's Sultan': T. N. Seshan and Indian Democracy," Contributions to Indian Sociology, n.s. 43, no. 2 (2009): 247-284.