The Transformative Constitution by Gautam Bhatia emphasizes the need of re-reading the constitution in a progressive perspective and getting over the traditional approach of interpreting the same.
As a work of critical scholarship, the Transformative Constitution by Gautam Bhatia could be better termed as social-democratic manifesto of modern-day India and world at large. The author Mr. Bhatia believes that the Constitution has been read by judges in two divergent ways.
While one folds of judges with approach of formal reading sees it as the zenith of a constitutional process that started in colonial times, the other which Bhatia champions views the Constitution as a master charter which although signifies administrative rupture of a colonial state and translating into a republican nation but has potential scope of evolving always. While, the former folds of professionals seem stagnant in approach, the latter believe in the evolutionary model of constitution of course, within the spirit enshrined in the constitution. And, the evolution by its very nature necessarily calls for accommodation of precedents that bolster the true purpose of Constitution i.e, a transformative promise!
Transformative Constitution Believes in a Dynamic Charter
The moment of Constitution coming into effect were the moments of the re-making of a colonial state into a republican nation and the transformation of its people from subjects into citizens. Doesn’t this big transformation itself calls for viewing the cornerstone charter as a constant evolving one?
The author of the Transformative Constitution also believes that majorly because of two divergent schools of Judges, the courts seem to have failed the Constitution, preventing it from turning into an evolving document. Seventy plus years after India became a republican state, this divergence has to go away for good. Only then, constitution would become a dynamic reference and will best suit to the citizen of the age.
True permeation of Constitution in contemporary polity is only possible if it is allowed to assimilate the evolving issues of age and their progressive resolutions. Be it social, political or economic issues the complexities are always evolving. Obviously, resolving the modern age issues would not be possible without a contemporary touch to the interpretations of the master charter.
Core Essentials of the Transformative Constitution Book
The Transformative Constitution offers a litmus test of nine judgements with benchmark of “Equality, Liberty and Fraternity”- the three virtues that have helped the democracy flourish even before the days of the French Revolution.
Basic framework of the book deals with the said universal trinity of values: Part I is on Equality, Part Two on Fraternity, and Part Three on Liberty. By its very Prologue titled “The Past is a Foreign Country”, the book splits the history into a before and a after world for India in the historical context of adoption of a new constitution.
Mr. Bhatia an advocate by profession, uses his intellect to dawn on us that the Constitution-making has to be interpreted in its maximal moral sense with special reference to trinity of values.
How Equality is Viewed by the Transformative Constitution?
The author believes that the equality component of the trinity, makes the resplendent core value as it is the lens through which all other constitutive values and especially fraternity, have to be seen.
The book emphasizes that the understanding of equality must be active, probing and vigilant. Citing the Naz foundation judgment on Section 377, the author commends the High Court Delhi for its extensive understanding of the linkage between equality and non-discrimination, privacy to life and individual dignity.
[Here is the brief of the said judgement: The landmark judgement is praised for its holistic legal reasoning that held that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution (The High Court Ruling was although overturned by supreme court in another matter but again reinstated by another bench of SC in 2018 in yet another matter). The High court before arriving at ruling undertook the analysis of Indian and international human rights jurisprudence that considered “sex” in Article 15 also as sexual orientation similar to the Human Rights Committee’s decision in Toonen v. Australia, in which the criminalization of sexual acts between men was considered a violation of Article 2 of the International Covenant on Civil and Political Rights. The Ruling’s beauty is even more praiseworthy for its wider approach on upholding Section 377 to continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors. In its comprehensive and wholesome analysis of the law of India with respect to discrimination on the grounds of sexual orientation, the High Court left little to or no margin for the decision to be overturned on the grounds of misinterpretation or promiscuous implication of the law.]
Fraternity from the View Point of the Transformative Constitution
Indian Constitution in general, views fraternity as a source of affirming “the dignity of the individual” and the “unity” of the nation. The former could be ensured by recognizing the moral equality of all individuals despite all our differences of religious belief, caste, language, culture, ethnicity, class and gender. The latter could be ensured by not forcing minorities to adhere to majoritarian principles, but instead by fostering a sense of mutual belonging and respect that transcends all other differences. Fraternity could take many forms such as: i) Understanding how others Feel (empathy), ii) Standing Up Together(solidarity), iii) Collective Caring, iv) failures of compassion (No show of fraternity e.g. from the majority with the minority victims) etc. Thus, essentially the fraternity is also an alter ego of equality.
The beauty of fraternity section of Transformative Constitution is that, it gives fraternity a new spin. It illustrates fraternity as 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 the stronger mandate of public policy with regard to anti-discrimination or freedom of association or equal access to public spaces.
Liberty from the View Point of the Transformative Constitution
The third and last section of the book is on liberty. It is pertinent to quote Ambedkar on this pillar of the Constitution – “equality without liberty would kill individual initiative”. Mr. Bhatia dwells on the evolving jurisprudence on privacy. He aptly does it by taking the debate beyond the conventional public/private divide. He goes on making a case for reformist intervention to protect the individual’s liberty from the surveillance/ invasion of her home, body, political beliefs and speech, as well as life-choices.
The author is critical of the later Aadhaar judgement (making AADHAR mandatory for govt. schemes but ruling out necessity for KYC with service providers) that came after the Supreme Court of India upheld privacy as a fundamental right under Article 21 in August 2017. Mr. Bhatia terms the said judgement a direct violation of the privacy verdict and one that puts privacy rights in a limbo.
The book makes a strong contention that state “control over data impacts freedom, perpetuates institutional disadvantage and helps to consolidate private regimes of power.” The author further says that the government requiring Aadhaar for social schemes can even act as a killer blow for some of the marginalised.
In all through the book the author has stressed to read the Constitution in the most expansive, socially diagnostic and transformative manner. With this in mind his work is not about what the law is today but what an ideal equilibrium ought to be. For the purpose, Mr. Bhatia uses diverse levels of authority e.g High Court Judgements which were superseded. He tries to make his case through nine High Court judgements that were overturned by the Supreme Court. These cases have in centre the Articles 14 to 21 of the Constitution which cover equality, religious freedom and the more recent Aadhaar and privacy issues.
Reflecting on the judgements, Mr. Bhatia draws a difference between the “conservative” reading of the Constitution and the “transformative” reading of it. In all this demarcates the Constitution we have and the Constitution we deserve today.
In the book the author makes a strong case for striking out not only the colonial laws that conflict with fundamental rights, but also the post-independence laws that tend to do so. He clarifies by referring the National Security Act under which Dalit leader Chandrasekhar Rao was put behind bars for over a year without granting bail or trial.
Summary of the Transformative Constitution: A Radical Biography in Nine Acts
Beyond dispute, the Indian Constitution is a founding document, signifying a transformation from being ruled to becoming a republic nation ensuring a free and equal citizenship. However, application of the Constitution ever since in being has failed to fulfil that transformative promise.
As a matter of records, the successive Parliaments have failed to do-away with colonial-era laws which are by large, inconsistent with the spirit set forth in the Constitution. The courts too have failed the objectives of constitution by interpreting with non-progressive approach. Even surprisingly, in many cases the Supreme Court has used colonial-era laws to trim and weaken the existing fundamental rights. Barring a few Judgements, the outlook of courts doesn’t seem to be progressive. The book essentially revolves around the concept of Transformative Constitutionalism.
Transformative Constitutionalism is not about any new law but about the ensuring ideal equilibrium and mutual co-existence between various stakes and keeping pace with time. It seeks legal literacy and a wider participative citizenship.’
The crux of a novel and radical reading suggested by the author is that the courts in the future need to adopt an interpretation that could actually upholds the transformative spirits of the Constitution.
Concluding Note on Transformative Constitution Book
Gautam Bhatia, the author of the Transformative Constitution has reflected very aptly on pre-Independence legal and political history and has highlighted that the objectives of adopting a new Constitution was not only to change the political status of Indians from subjects to citizens, but also to keep its relevance in the dynamic citizenry. It feels, the author has justified his profession by using radical wisdom unseen elsewhere. The book is a path breaking guide for all associated with guarding and upholding the true values enshrined in the Constitution. The reviews on web recommend the book as mandatory reading not only for law students but also for liberal arts. In fact, after going through the book I felt that it should be read by every Indian who think India as a nation founded on principles of JUSTICE, LIBERTY, EQUALITY and FRATERNITY and that these core values are to be interpreted in most expansive manner. Get a copy of the book here!
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