The Constitution in interesting times

Gautam Bhatia's book situates the judicial pronouncements of the past decade in the context what has been achieved (or destroyed), providing an incisive look into the state of the judiciary

Unsealed Covers: A Decade of the Constitution, The Courts And The State

Author: Gautam Bhatia

Publisher: Harper Collins

Price: Rs 699 

In the overarching sweep of history, a decade is as transient as the blink of an eye. Do people remember what happened 400 years ago in India in the decade of 1613 and 1622? (This is a rhetorical question, please do not write in with answers!) But then, the entire world remembers the events that unfolded in Nazi Germany in the decade of 1933 and 1944, and the impact they had on the world. Any decade, therefore, has to be viewed in the context of what was achieved (or destroyed) in the period. And as the author shows, it has been a very interesting decade in the courts.

Covering the decade of 2013 to 2022, this latest offering by Gautam Bhatia focuses on judicial pronouncements of the Supreme Court and the high courts during this decade on a plethora of issues, ranging from the legacy for which certain judges will be remembered to the judgments of the Supreme Court in cases involving constitutional issues (Article 370, anti-defection, federalism and so on), social justice, socio-economic rights etc. 

For the regular readers of Mr Bhatia’s works, the book offers old fare. The book is, as the author himself says, a collection of essays, and excerpts from essays, written over a decade for the Indian Constitutional Law and Philosophy blog.  While the fare may be old, it is far from stale, providing an incisive look into the state of the judiciary and its pronouncements on issues that impact, and will continue to impact, the development of Indian jurisprudence. 

The criticism of the judgments does not stem from a personal vendetta of having been on the losing side in some of these cases, but arises from a more basic and almost visceral outrage (shared by many) that the Constitution is being twisted beyond shape, sometimes aided and abetted by a compliant judiciary, perhaps irreparably.

Even though the author refers to “courageous and principled judges” and their judgments, reading the essays contained in the book, one cannot help but feel sorry for the sad state of affairs of the judicial system, which makes these courageous and principled judges appear to be the exception and not the norm.  The turning of the Supreme Court into what the author describes as the “Executive(’s) Court” speaks volumes on how the Supreme Court is being perceived in important cases where the government is an adversarial party.

To buttress his argument, the author points to the delay in crucial cases such as the Electoral Bonds issue, the Pegasus scandal, Article 370 (which is being heard only now), the Citizenship Amendment Act, among others, which the author terms as “judicial evasion” and says benefits the political executive.  As the author observes, it is one thing for a court to be a champion of citizens’ rights, but altogether another thing when it is the proud protector of the state’s rights.

As the Epilogue of the book records, the duty of the author, as a “legal writer”, is to “tell the truth about the law”, and remembering that “whatever the court, or courts may say or do…the Constitution is not reducible to the court”, and that “…the Constitution is so much more than the court.”  The essays contain a no-holds-barred analysis, examining judgments through the lenses of a constitutionalist, and it is in the process of this examination that troubling questions arise for any reader versed in basic knowledge of the Constitution. 

A reader of this book may disagree with the opinion of the author in his essays, but would be hard put to deny the validity of the concerns raised.  To not recognise the Kafkaesque logic contained in some of the judgments featuring in the book, would be for us to become like ostriches, burying our heads in the sand, in the process letting go of our inalienable and fundamental rights.

In one of the chapters, the author makes an observation in respect of a judgment of the Bombay High Court regarding bail under the Unlawful Activities Prevention Act, which is, strangely, both disheartening and comforting at the same time — describing the judgment as a reminder “…that even under repressive laws, courts still have a vital — and indispensable — role to play as sentinels on the qui vive — should they choose to do so.”

The phrase “should they choose to do so” is a warning knell, reminding us of the words of Martin Luther King that “Injustice anywhere is a threat to justice everywhere”.  As the author points out, “But injustice does not happen by an invisible hand — injustice is done, people do it.”  The title of this article is derived from an alleged Chinese curse, which commits the recipient to a life in times of trouble and strife, as opposed to a non-interesting time where peace and rule of law reign. If the source of the injustice are judges, as so many instances in the book show, then we live in interesting times indeed!

The reviewer is a lawyer practising in Delhi