In the wake of the abrogation of Article 370 in Kashmir, there were intense opinions across social media, newspapers and TV channels. People were picking sides, lauding the current government or opposing it, and placing their own arguments. But what I most clearly remember are the complicated legal arguments that had entirely been missed when the Article was unceremoniously removed. Lawyer and writer Gautam Bhatia’s blog cut through the noise, and since then I have been a regular reader, as I visit it often to gain familiarity with legal jargon that continues to escape my understanding.
Gautam Bhatia is a legal scholar and lawyer based in New Delhi. A Rhodes Scholar and graduate of Yale University, he has written several books on Constitutional Law as well as of science fiction, all of which have been received with critical acclaim. His most recent book Unsealed Covers, is a thematic amalgamation of blog posts he has written in the last ten years. In this searing critique of the judiciary, Gautam Bhatia does not hold back as he engages with several decisions of the Supreme Court and some lower courts, and how those have interacted with state power and machinery.
What is justice?
The book is divided into three parts – the first is on Rights, the second is on the Constitutional Structure, and the third is on the Judiciary. Each part is then broken down thematically. For instance, in the section on Rights, Bhatia covers Personal Liberty, Privacy, Equality, Social Justice and so on. The segment on the Judiciary is perhaps the most exciting, with detailed profiles of the past Chief Justices and their tenures. The essays are a combination of critical readings of important judgements and other matters of constitutional importance, such as Article 370 and the Amendments to the Right to Information.
Unsealed Covers makes a bold contribution. Bhatia is critical and honest, and has the ability to zoom out for the sake of his readers. He argues that the Constitution is “contested terrain”, the ambiguity of its language making this possible. Here, different visions of power are contested, and the courts are called in to act as arbiters. There is an important emphasis on linking the intricacies of judgements back to other structures of the state – whether it is the executive or the judiciary.
For instance, in the chapter on Illegal Home Demolition, Bhatia argues that the court could benefit from treating the issue with the doctrine of an unconstitutional state of affairs. This largely means that the court could intervene in the failure of both the Legislative and Executive branches of the state and thus justify judicial intervention on the basis of “structural causes”. The case of the home demolitions struck me in particular – especially because Bhatia makes a striking observation about how the State justifies its actions as following “due process”. They stand on the shoulders of procedural legality to absolve themselves despite bending the rules of substantive justice.
Critiquing authority
Bhatia is also very clear about his own position.
Self-aware of his own ideological stand, he acknowledges in the preface that he comes from a certain vantage point – one that is deeply critical of authority. His politics continually makes its way into how he interprets and understands his judgements. This should not deter the readers, because it only adds to his theoretical and analytical frame. Picking sides is not a crime, and he does not claim to be unbiased for the sake of the book. Bhatia is arguing for one side and is unafraid to admit this.
The book makes it clear at the beginning, and then through several chapters, that the author is “sceptical of structures of power” and “opposed to homogenisation and centralisation”. Bhatia further says that he is suspicious of constitutional interpretations that treat human beings as subordinate to larger, more abstract ideas of “national security” and “larger public interest”. In a way he is speaking to a larger audience – since he combines many different ideas together. He is not just studying legal judgements or debates in their often jargon-filled echo chambers, but attempting to break them down in a manner that makes ideological sense, and a larger argument of judicial decline.
Although the individual essays can also be accessed online through Bhatia’s blog, Unsealed Covers attempts to arrive at an argument by structuring it in a way that asks bigger questions. The last decade has seen important transformations and challenges to institutions. And the judiciary has not escaped unscathed. Debates around Indian constitutionalism rarely make their way to public discourse, and less so in ways that are well-reasoned, analytical and publicly accessible.
The book also alludes to another important facet of institutional decline, perhaps not so blatantly, but the vestiges of a crumbling rule of law are rampant throughout the text. An institutional argument of what it means to be living in a rule-of-law society can be seen underscoring most if not all of these judgements. Judges have important ramifications on how people live their daily lives, frame quotidian forms of behaviour, and in general understand their own moral values. Bhatia’s book does all of this and more, and is a testament to the growing need for popular legal scholarly work. He interprets the courts like a lawyer, theorises like an academic, and, most important, rebels like a citizen.
I am tired of reviews that label books as important (although I do think this is a rather important contribution). But this book is relevant. It speaks to the current in a way that understands and analyses one of the most important state institutions in the country. It is a critical qualitative archive of important legal judgements during the time of the current regime, making it an invaluable source for not just those who read this book, but scholars who wish to work with legal data and judgements.
Unsealed Covers: A Decade of the Constitution, the Courts and the State, Gautam Bhatia, HarperCollins India.
