The Transformative Constitution A Radical Biography in Nine Acts by Gautam Bhatia (Book Review)
INTRODUCTION:
A) BIBLIOGRAPHIC INFORMATION
Name of the Author- Gautam Bhatia
About the Author- Gautam Bhatia was graduated from the National Law School on India University in 2011. He read for the BCL and the M.Phil at the University of Oxford and completed his LL.M at Yale Law School. He is a practising lawyer in New Delhi, and visiting faculty of various law schools. His practice has seen him involved in some important contemporary constitutional cases, such as the challenge to criminal defamation, the nine- judge bench right to privacy case. His first book was Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution, which was published in 2015.
Title of the book- The Transformative Constitution
A Radical Biography in Nine Acts
Date of Publication- 28th February, 2019
Name of Publisher House- HarperCollins Publishers India
Number of pages- 582pages
B) THE BASIC OVERVIEW
We all know that Constitution of India is the Supreme Law of the land, which is the lengthiest Constitution all over the world. This book “THE TRANSFORMATIVE CONSTITUTION” by GAUTAM BHATIA is quite different from the other books on Indian Constitution. This book is a historical reading on the transformative nature of the Constitution of India. The author believed that this Constitution had been read by two different ways by the judges. This book draws on the pre-independence political and legal history to argue that the Indian Constitution was intended to transform not only the political status of Indians but also the social relationships. This book deals with the trinity of values i.e. equality, liberty and fraternity and with current issues, where Constitution is compared as a living tree. It used nine judgements of the Courts to discuss about the union of trinity of those three and their mutual interdependence.
SUMMARY:
This book is concerned with nine cases and the author, Gautam Bhatia, as a practising lawyer, he was professionally involved with four cases among the nine cases. This book starts with Author’s Note, then Prologue, then the main three parts i.e. Equality (part one), Fraternity (part two), Liberty (part three), then Epilogue and other related information. Every part i.e. part one, two and three consists of case studies, which the author used to called as Acts. The author in his book beautifully explains how the economic policy was never a part of The Constitution of India but there left enough checks and balances in order that the country stays committed to equal opportunity, liberty and fraternity.
In the prologue portion there is a debate that whether the creation of the constitution is an evolution or transformation, though ultimately the transformative nature of the Indian Constitution is established. In his book he talks about two different approaches to the Constitutional Interpretation: Static (very conservative) v. Living Tree (very expansive) and the correct way should be neither of them rather what he calls is that The Transformative Constitutionalism. Because he thinks and argues that it is the most appropriate nature of Indian Constitution and beautifully enlightened the social and political transformation in his book. In this prologue portion he discussed the Constituent Assembly debates and attempts to explain that why such an Article found place in the Fundamental Rights part of the Constitution of India and what were the wordings carefully chosen while making a comparative analysis with the other Constitutions.
In the beginning of every part the relevant reference articles are mentioned briefly. Dealing with the nine important Acts as well as judgements along with the advanced reading of this constitution the author beautifully discussed the three constitutional values of equality, fraternity and liberty. Those three values are protected by our Constitution. With the help of mutual interdependence of this trinity of values the author envisions the transformation of relations between the state, society and citizens, in all their permutations. Here one thing is important that according to Gautam Bhatia’s opinion individuals i.e. the citizens are the heart of fundamental rights of our Constitution and the state is the vehicle of social transformation.
Part One: Equality- There is three chapters in this part. The first chapter is Sex Discrimination: Anuj Garg and the Anti-stereotyping Principle, the second chapter is Equality Before Law: Naz Foundation and Equal Moral Membership, and the third chapter is Equality of opportunity: N. M. Thomas, Group Subordination, and the Directive Principles. These three chapters with the three specific cases are described here very precisely and easily. So, that any normal (whose background is not law) person can easily understand this. In the Naz Foundation case judgement on sec 37, the author 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...”
Part Two: Fraternity- This part is also consists of three chapters named as fourth, fifth and sixth chapter. The fourth chapter is named as Civil Rights: Indian Medical Association and Horizontal Discrimination, fifth chapter is Religious Freedom and Group Identity: Saifuddin and the Anti- Exclusion Principle and the sixth one is The Freedom to Work: Peoples Union for Democratic Rights and Forced Labour. This fraternity section makes case for the enforcement of non-discrimination between individual and the non-state entities, whether private or community. In this book there is a argument that even though the private entities have a certain freedom of contract, that freedom cannot be justified if it hampers a strong mandate of public policy with regard to anti-discrimination or freedom of association or equal access to public spaces. As the author points out, “...as the court increased its own power in this matter, the use of article 25(2)(b) - which granted the state the power of religious intervention for social reform- began to decrease.”
Part Three: Liberty- In this part also three chapters are included named as seventh, eighth and the ninth chapter. The seventh chapter is named as Privacy beyond the Public/ Private Divide: Sareetha and Freedom within the Family, the eighth chapter is Speech, Association, Personal Liberty, and the State of Exceptions: Jyoti Chogre v. State of Maharashtra and the last i.e. the ninth chapter is Privacy and The Criminal Process: Selvi v. State of Karnataka. As per Ambedkar’s words, “equality without liberty would kill individual initiative.” The author used this jurisprudence by moving the debate beyond the traditional private/public divide, and to protect the individual from the close observation of his home, speech, body etc. as well as life choices( such as sexuality, right to refuse marital sexual violation etc.)
As I said earlier, Gautam Bhatia was professionally attached with four cases which are discussed in this book. Some of those case there are the Constitutional challenge to Section 377 of the Indian Penal Code, 1860, another case is related with Right to Privacy where the bail applications if Kabir Kala Manch before the Supreme Court and the Constitutional challenge to Aadhaar. We have seen many new judgements like the Supreme Court’s judgements regarding adultery, section 377 were challenged and the very important and famous Sabarimala temple case. But unfortunately all those judgements were delivered after the author finished writing this book so the author did not get the time to incorporate those case judgements also in his auspicious book but instead of that the author has addressed them in brief photo scripts to each chapters.
This book is a dense and insightful read, which throws light on the rich discourse of civil right and liberation movements that guided the makers of the constitution and the Indian republic. He ties the struggles for labour rights, and feminist and anti- caste movements into the constitutional framework. This book also tells about several current affairs, those are adultery, the Aadhaar challenge and the Sabarimala verdict, decriminalisation of homosexuality and the Sabarimala verdict.
EVALUATION AND CONCLUSION:
In his book the author examines all the articles which are embedding equality, fraternity and liberty in the constitution. He considers the constitutional history of the inclusion of those articles and its social, political and intellectual history, which describes the struggles that how they got attention of the founder father. After that he uses three landmark judgments in each section to illustrate the ways through which legally grounded readings of those foundational values are created to realize the nature of India’s transformation constitution.
The section on equality examines the judiciary’s handling of sex discrimination through the lens of a 2008 judgment, Anuj Garg vs. Hotel Association of India. After this case The Supreme Court reviewed a law that barred women from working in a liquor shop or bar and struck it down. This judgment is very important for Bhatia because its reading of article 15(1) which contains that “The state shall not discriminate against any citizens on ground only of religion, race, caste, sex, place of birth or any of them”, which rejects the classification based on ‘natural’ differences between the sexes in favour of a position which measures the constitutionality of laws in terms of their impact on women and their right to equality. For Bhatia the fact is that the Constitution grants the right to vote, delinked from status or community, which makes the doctrine of Separate Spheres for men and women legally indefensible.
This combination of the lawyer’s beady eye for Constitutional text engaged with the intellectual’s wide – ranging recourse of historical argument characterizes of Author’s treatment of ‘Fraternity’ and ‘Liberty’ the other two sections of this book.
For example, in ‘Fraternity’, he argues that discrimination of housing is unconstitutional on the basis of an expansive reading of article 15(2) which is undertaken by Supreme Court bench in Indian Medical Association vs. Union of India. And in ‘Liberty’ he argues that the apex decision of the court in Selvi vs. The state of Karnataka, transformed our reading of article 20(3); which contains that ‘No person accused of any offence shall be compelled to be a witness against himself’.
He sees in this landmark judgment that decisively tilting the scales against the ‘crime control’ the jurisprudence derived from colonial practice which is in favour of a ‘due process’ the jurisprudence opposed to the use of ‘trust serums’, lie-detector test and illegally obtained evidence.
This book is well written and beautifully researched, which gives a lucid vision of the Transformative Constitutionalism in India. The author goes into immense detail about various provisions of the constitution. In this book the author very nicely argues through lesser known judgments of High Courts and dissents of Supreme Court as well as High Courts. He advances a novel vision of the constitution. As his idea of our Constitution is Transformative in nature he celebrates the spirits of the jurisprudential history, while calling for action by the judiciary for giving full effect of the rights which are guaranteed under Indian Constitution.
In my perspective this is an amazing book and an important book also which not only discussed with pre- constitutional history but also deals with the most critical as well as recent issues like preventive laws, religious freedom, LGBTQ rights etc. This book spreads the constitutional law with a different vision and enlightened the mutual interdependence of the trinity of values with the very important nine acts means nine cases. This book reinforces the belief that the Constitution of India was always meant to improve the lives of the marginalized citizens and this constitution has a unique blend of presenting perspectives from the past, foreign jurisdictions and the current context. This book also consists of elaborate end notes, which is filled with enormous resources, anyone can gain many more knowledge and information from these end notes.
As a law student I can conclude that as a non-fiction book, the author has done a great job in describing the constitutional story rather the constitutional philosophy with the help of the nine acts. Everyone, who is non-fiction book lover, especially the students and the other persons who are engaged in legal profession must read this book once to understand the constitutional history explicitly.
