Gautam Bhatia has been for several years an outspoken commentator on legal issues and cases, and an outspoken critic of the courts, especially the Supreme Court. His facts are well marshalled, his arguments sound, his conclusions unimpeachable, and his range impressive. Above all he has the right idea of India, and reverence for its Constitution. Thus far my acquaintance of him was from his newspaper writings; I did not know that he wrote much more in his Indian Constitutional Law and Philosophy blog. I wish I had; I would have been a better informed citizen and lawyer.
Unsealed Covers is a collection of essays published in the blog between 2013 and 2022. They focus on Indian constitutionalism and the Indian judiciary during this tumultuous period. As Bhatia says, “In these years, the Supreme Court’s judgments on privacy, same-sex relations, the national biometric identification system, the hijab ban and reservations, among others, have made headlines in India and abroad. Its refusal to hear high-stakes cases on time, the powers of the Chief Justice of India and the court’s deferral to the executive in crucial civil rights cases have all raised critical questions around judicial independence, and the relationship between the judiciary and an assertive — at times aggressive — executive.”
Rights and the judiciary
The book is structured in three parts. Part One deals with rights and covers a huge range from personal liberty to privacy, from social justice and reservations to socio-economic rights, from refugees to Kashmir after Article 370. Part Two deals with federalism, anti-defection and fourth branch institutions. Part Three deals with the judiciary and judges, in particular Chief Justices.
It opens with a sparkling essay on Justice A.M. Khanwilkar who, more than any other judge in recent times, has emasculated human rights and liberty. Bhatia explains, in language understandable to the educated layman, how draconian the UAPA (Unlawful Activities (Prevention) Act) law and the PMLA (Prevention of Money Laundering Act) law are in heavily tipping the scales against the citizen. These have an obnoxious section which inverts the hallowed presumption of innocence; in order to grant bail, the court must find the accused prima facie innocent, and that too from the case set out by the prosecution.
The Delhi High Court in Zaroor Watali’s case undertook a detailed scrutiny of the prosecution’s case and found it deficient. In appeal, Justice Khanwilkar upended the judgment, saying the court was wrong in embarking on a detailed scrutiny. In other words, accept the prosecution’s case and don’t look too closely at it. In Bhatia’s words, this was “tying both hands behind the back”. Read it to see the havoc that can be caused by a Supreme Court judgment; why will the ED (Enforcement Directorate) not be the feared authority it is?
This vein of critical, and even adversarial, examination continues through the book. Bhatia is an academic-turned-practising lawyer who has the guts to critique judgments of judges he appears before. You can count the likes of him on the fingers of a single hand. He takes us through the gamut of intersections of law and justice and society in masterful expositions in several essays under each chapter.
But the jewel in the crown is the last chapter. It begins with the issues around the tremendous power of the Chief Justice as Master of the Roster — he determines which case is heard when, or not all; he decides which of the Court’s nearly 30 judges, each with his or her own predilections and ideology, will hear it. He examines the record of the last six Chief Justices of India — J.S. Khehar, Dipak Misra, Ranjan Gogoi, Sharad Bobde, N.V. Ramana and U.U. Lalit. Save the last, he finds the others deplorable.
After reading this book, readers can be forgiven if they question the worth of the collegium system which selected them. Seminally important cases are not heard; in other major ones the decision favours the government. Skillfully, Bhatia delineates how the Court has moved from being an anti-majoritarian institution to being the executive’s court.
Focus on a black mark
Justice Lalit has won much praise for exhuming constitutional cases and posting them. However, Bhatia also focuses on the black mark — the overnight posting on a holiday of the government’s appeal against a Bombay High Court order acquitting G.N. Saibaba before Justice M.R. Shah, a judge not free of controversy, who promptly keeps Saibaba in jail. Bhatia does this for every retiring Chief Justice; one awaits his assessment of the current one. The only non-Chief Justice so favoured for the Bhatia scrutiny is Khanwilkar — and he is eviscerated for a string of judgments — upholding every provision of the obnoxious PMLA, penalising tribals protesting killings by the police, virtually setting the police on Teesta Setalvad for challenging the SIT report on the Gujarat carnage. In his classic style, Bhatia has Khanwilkar saying, “I can guarantee freedom to come to court, but I cannot guarantee freedom once you’ve come to court.” Upending Article 32?
This book is a must have and a must read, not only for every lawyer but for every citizen who wants to be well informed about the major constitutional cases and developments which affect every part of our lives in very great measure. We owe a debt of gratitude to Bhatia. It is not easy to be outspoken in these times, and to be the candle that throws light on the darkness. More power to his elbow, and more arrows to his bow.
Unsealed Covers: A Decade of the Constitution, the Courts and the State; Gautam Bhatia, HarperCollins, ₹699.
The writer is Senior Advocate High Court, Madras.