The Hindu Prize 2019 Shortlist Books

‘The Constitution was meant to interrogate relationships of power’: Gautam Bhatia

Gautam Bhatia

Gautam Bhatia   | Photo Credit: K. Murali Kumar

Gautam Bhatia on how the Constitution tries to bring democracy out of the public and into our social and private lives

Through nine cases in The Transformative Constitution:A Radical Biography in Nine Acts, shortlisted for the Hindu Prize for Non-Fiction, Gautam Bhatia gives us a glimpse of constitutional interpretation not as it is, but as it can and should be. An excerpt from a short interview:

Why should we read the Constitution as a radical charter? How should we interpret the ‘transformative’ Constitution?

The Constitution was meant to be “transformative” in two ways. It was intended to alter the relationship between individual and state, by turning erstwhile subjects of the colonial regime into citizens of a democratic republic. This was accomplished through a number of classic civil and political rights — freedom of speech, personal liberty, equality, and so on — which constrained state power.

In a second, and equally important, sense, the Constitution was meant to interrogate hierarchies and relationships of power and domination that existed within what we now understand as the “private sphere” (e.g., caste groups, the family, and so on). This was to be accomplished through “horizontal rights” that existed between private parties, such as Article 17 (prohibition of untouchability), Article 23 (prohibition of forced labour), and Article 15(2) (non-discrimination in access to public spaces).

Did the framing of the Constitution signify continuity or an obliteration of the past?

There was a form of administrative continuity, with much of the governance structure being borrowed from the 1935 Government of India Act. There was also a degree of unfortunate substantive continuity, with rules about preventive detention, emergency powers, and so on, being replicated from colonial legal structures.

However, the overall thrust of the Constitution was transformative in the manner outlined above, and the continuities — as I argue in the book — need to be read and understood in the light of an overall transformative framework (which would, for example, require the preventive detention provisions to be read very narrowly).

You write that Ambedkar “distilled the heart and soul of the Indian Constitution” in his concluding speech to the Constituent Assembly where he said that the principles of liberty, equality and fraternity “form a union of trinity” and cannot be treated as separate items. Why is this important in the Indian social context?

It is important because, as Ambedkar recognised, in India the state has never been the sole locus of power, domination, and oppression. Social groups, community structures, religious injunctions — all these and more have affected individuals’ standing in society, as well as their freedom and dignity.

‘The Constitution was meant to interrogate relationships of power’: Gautam Bhatia

Ambedkar envisioned the idea of “fraternity” as the bridge that would make freedom and equality meaningful for people, by ensuring that these values applied not only to the state, but also to the private sphere. In other words, it was an effort to bring democracy out of the public domain, and extend it to our private lives, within the family, community, and so on.

What role does the fundamental rights chapter play? Have the polity and judiciary failed the Constitution?

The fundamental rights chapter is the concrete manifestation of the demands of liberty, equality and fraternity, by making them enforceable in specific terms. The record of both the legislature and the judiciary has been mixed. Laws such as the Right to Information Act and the Forest Rights Act represent legislative attempts to enact these values, but these have been few and far between. The courts have had a patchy record themselves, on enforcing the vertical aspect of the transformative Constitution (curtailing state power), by often deferring to the legislature and the executive on core fundamental rights issues such as liberty and personal freedom (for example, the National Security Act, the Armed Forces (Special Powers) Act, the TADA, and the POTA were all upheld by the Supreme Court).

And the horizontal aspect of transformation has, with a few exceptions, not yet been engaged with. This is why I refer to the nine cases in my book as constituting a “contrapuntal canon” (borrowing from Edward Said).

They give us a glimpse of constitutional interpretation not as it is, but as what it can — and should — be.

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Printable version | May 28, 2020 11:24:22 PM |

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