Gautam Bhatia’s TheTransformative Constitution is a historical reading of the progressive potential of India’s Constitution. It is a work of serious scholarship; it is also a social-democratic manifesto. Bhatia believes that the Constitution has been read by judges in two opposed ways.
There is a formal reading that sees it as an evolutionary document, the culmination of a constitutional process that started in colonial times, which must be read in the light of that history and any precedents that it might supply.
The alternative reading, which Bhatia champions, understands the Constitution as a radical charter written at a moment of historical rupture: the re-making of a colonial state into a republican nation and the transformation of its people from subjects into citizens.
Trinity of values
Bhatia sets out to show that this is not a rhetorical flourish by arguing that republicanism’s trinity of values — liberty, equality and fraternity — are constitutive of Ambedkar’s Constitution in a way that surpasses their centrality to the great 18th century revolutions that first affirmed them in the United States and France. Showing how this is so gives him the form of this book.
He examines the Articles that embed equality, fraternity and liberty in the Constitution. He considers the constitutional history of their inclusion and the social, political and intellectual history of the struggles that brought them to the attention of the founding fathers. He then uses three landmark judgments in each section to illustrate the ways in which legally grounded readings of these foundational values created the space to realise the emancipatory potential of India’s transformative Constitution that more formal or conservative readings might have stifled.
Thus, the section on ‘Equality’ examines the judiciary’s handling of sex discrimination through the lens of a 2008 judgment, Anuj Garg v. Hotel Association of India. The Supreme Court reviewed a law that barred women from working in a bar or a liquor shop and struck it down.
This judgment is important for Bhatia because its reading of Article 15 (i) “The State shall not discriminate against any citizens on grounds only of religion, race, caste, sex, place of birth or any of them” rejects classification based on ‘natural’ differences between the sexes in favour of a position that measures the constitutionality of laws in terms of their impact on women and their right to equal treatment.
Bhatia justifies his preference for Anuj Garg by undertaking in a few packed pages, a precis of the doctrine of ‘separate spheres’ and the history of its repudiation from Bankim Chandra Chattopadhyay’s Samya through the interventions of Rukhmabai, Rokeya Sakhawat Hossain and Pandita Ramabai, culminating in the Congress’s 1939 report on ‘Women’s Role in a Planned Economy’.
This eclectic survey is designed to create an intellectual genealogy for Bhatia’s preferred position, not to clinch its claim to being the more faithful one. That rests on an ‘excavation of the sparse text’ of Article 15(i) combined with the legal implications of other provisions of the Constitution. For Bhatia the fact that the Constitution grants the right to vote as a right, delinked from status or community, makes the doctrine of separate spheres for men and women legally untenable.
This combination of the lawyer’s beady eye for constitutional text and the engaged intellectual’s wide-ranging recourse to historical argument characterises Bhatia’s treatment of ‘Fraternity’ and ‘Liberty’, the other two sections of this book.
In ‘Fraternity’, for example, Bhatia argues that housing discrimination is unconstitutional on an expansive reading of Article 15 (2) undertaken by a Supreme Court bench in Indian Medical Association v. Union of India. In ‘Liberty’ he argues that the apex court’s decision in Selvi v. the State of Karnataka, transformed our reading of Article 20(3): ‘No person accused of any offence shall be compelled to be a witness against himself.’
Bhatia sees this landmark judgment decisively tilting the scales against the ‘crime control’ jurisprudence derived from colonial practice in favour of a ‘due process’ jurisprudence opposed to the use of ‘truth serums’, lie-detector tests and illegally obtained evidence.
The Transformative Constitution is a formidable achievement. Right at the start, Bhatia writes that his book doesn’t claim to be the definitive reading of India’s Constitution. This is mannerly, modest and untrue. This book’s reason for being is the author’s ambition to define the Constitution as a progressive charter and to choose the landmark cases that should determine its future interpretation. To this end he marshals a knowledge of history, political ideas and jurisprudence that would be demoralising if it weren’t so austerely deployed.
Bhatia’s commitment to lucidity and systematic argument where every premise is stated and every argument outlined before being discursively made, is so far removed from the riddling opaqueness of desi academic writing that it feels foreign. If the book has an Indian ancestor it is Amartya Sen’s The Idea of Justice . In its range, its social democratic moorings and its style of public reasoning, it earns the comparison.
For liberal readers, The Transformative Constitution is a purpose-built arsenal. For conservatives it is a guide to the best legal arguments liberals didn’t know they had. For lawyers and lay citizens alike, this is an indispensable book.
The Transformative Constitution: A Radical Biography in Nine Acts ; Gautam Bhatia, HarperCollins, ₹699.