With the season of tumultuous electioneering having just ended, it is perhaps hard to be able to take a step back and ask what the deeper constitutional questions are. Yet, arguably, to not do so, is to risk the repetition of our shallow, harsh politics, instead of asking more profound questions. Questions that for example help critique plenipotentiary executive authority and the ordinance powers that flow from this authority – including large-scale regimes of preventive detention.
Equally, on the more emancipatory fronts, one needs to raise pointed questions on the depth and scope of the Indian polity’s commitment to anti-poverty or non-discrimination programmes. Gautam Bhatia’s The Transformative Constitution: A Radical Biography in Nine Acts is a timely book that adroitly focuses these diverse concerns.
Trinity of values
The broader architecture of the book works with a clear and familiar trinity of values: Part One is on Equality, Part Two on Fraternity, and Part Three on Liberty. The Prologue (titled “The Past is a Foreign Country”) has a strong historical sense of the moment of Constitution-creation in the context of mid-twentieth century India. By definition, Constitution-making is a quasi-theological act, a polity willing itself into moral life, a splitting of history into a before (colonial and pre-modern) and after (the continuous present of a post 1947, or 1950 world).
Bhatia’s interpretive labour (as embodied in the title) is to read that original moment of Constitution-making in its maximal moral sense, especially with regard to the aforementioned trinity of values. Though here one might remark that even within this trinity, equality would be imagined as particularly resplendent, and often the lens through which the others, especially fraternity, is seen.
Bhatia makes the point repeatedly that the understanding of equality must be active, probing, vigilant – discussing the Naz foundation judgment on Section 377, he applauds the court for its extensive understanding of the “linkage between equality and non-discrimination, the identification of sites of group exclusion, the focus on disadvantage, disability and self-realisation (‘dignity’), and the attention to the actual experience of the subjects of a law (‘real and effective equality’). Here was a deep, rich and substantive understanding of equality…”.
Fraternity and liberty
The fraternity section makes a case for the enforcement of non-discrimination between individual and non-state entities (i.e., community or private) – such as a housing society, or educational institutions or religious groupings or mining corporations. The book argues that even though private entities have a certain freedom of contract, that freedom cannot be justified if it thwarts a strong mandate of public policy with regard to anti-discrimination or freedom of association or equal access to public spaces (especially if the last partakes of any state funds).
As Bhatia points out, “…as the Court increased its own power in this manner, the use of Article 25 (2)(b) – which granted the State the power of religious intervention for social reform – began to decrease.” Indeed, this is borne out in the present with regard to religious disputes – political parties (even if they are happy at the electoral level to manipulate religious sentiment) – are unwilling to legislate and risk backlash, and would rather leave the inflammatory issue to simmer or resolve itself in the Courts.
The last section is on liberty – one may do well to remember Ambedkar’s words on this pillar of the Constitution – “equality without liberty would kill individual initiative”. Bhatia discusses the long and evolving jurisprudence on privacy. He does this by moving the debate beyond the traditional public/private divide, and thus makes a case for reformist intervention to protect the individual from the surveillance/ invasion of her home, body, political beliefs and speech, as well as life-choices (such as sexuality, or the right to refuse marital sexual violation).
Bhatia uses diverse levels of authority (older High Court judgments which were superseded, historical events such as nationalism which were only erratically legally imprinted, differential enforceability of principles even within the text of the Constitution) to always try and read the Constitution in the most expansive, socially diagnostic and transformative manner. In this sense, it is not about what the law is today, or the power of the Supreme Court vis a vis the State today, but what an ideal equilibrium ought to be – it is refreshing that the author has been bold enough to state his position clearly, having taken the trouble to be armed with the relevant legal history.
The book, admittedly, is not always easy reading, especially for those immune to the charm and intricate rigour of legal discoursing. Yet few idioms of language are more vital than the language of law. And, as a member of the teams that worked on key legal cases (criminal defamation, right to privacy, Section 377, the Aadhar judgment) and as a frequent contributor to editorials in the media, there are few practitioners and scholars who are better positioned than Bhatia to provide both insight and perspective. This book will help many in the path toward legal literacy and thus a fuller and more participative citizenship.
The Transformative Constitution: A Radical Biography in Nine Acts, Gautam Bhatia, HarperCollins India.