Book Review: Unsealed Covers by Gautam Bhatia and The Colonial Constitution by Arghya Sengupta

The efflorescence of law-related writing in India is a fairly recent phenomenon. It is the result of a confluence of factors including the emergence, over the past two decades, of a new breed of graduates – mostly but not exclusively from the national law schools – who combine a passion for airing their views on a range of contemporary issues with expressive abilities that were lacking in their immediate predecessors.

A second factor which has aided the process enormously is the blossoming of new book publishers within India (many of them subsidiaries of well-known western imprints) who, as well as being receptive to such writings, have embraced technology which produces visually attractive products and adopted marketing strategies that match those in the developed world. No less important is the runaway growth of social media and other online platforms which have allowed the germination and testing of many of the ideas that have subsequently found their way into books.

The first of the two volumes under review - Unsealed Covers by Gautam Bhatia - is a prime example of the synergy between online media and the printed page. It is a collection of articles which started life as posts in a blog, and it focuses on constitutionalism as it has emerged in India, guided by a hyperactive (but not necessarily astute, joined-up or disciplined) judiciary. In temporal terms, the book covers the period 2013 to 2022, which overlaps, for the most part, with the time for which the Hindu-nationalist Bharatiya Janata Party (BJP) government has been in power and whose instincts and policies are anathema to commentators on the ideological left. 

The Indian Constitutional Law and Philosophy Blog, the source of the essays, also began life in 2013 with three broad and laudable purposes: to demystify constitutional law, especially for non-lawyers; to democratise constitutional law by providing “an open, public forum” for discussion; and to engage in “a mode of constitutional law writing that was distinct from the two dominant, prevailing modes: academic analysis and reportage”. The author, who started the blog as a student but became a practising lawyer shortly thereafter, sets out his stall with lucidity and candour in a preface to the book. Of particular importance to an understanding of the essays is his declaration of the ideological position from which he approaches the subject:

"I approach constitutions, constitutionalism and courts from a perspective that is sceptical of structures of power, and authority, and opposed to the concentration and homogenization of power, and suspicious of any form of any form of constitutional interpretation that seeks to subordinate real, flesh-and-blood human beings to abstractions such as ‘national security’ or ‘the larger public interest’. On the other hand, this approach supports the democratization and distribution of power, celebrates the existence of diverse and plural ways of living, and privileges human dignity and freedom over invocations of raison d’etat. Further, I believe that this ‘anti-hierarchy’ approach is characteristic of Indian constitutionalism in its best moments…"

The frankness is commendable, but shorn of the code words which litter that passage, it means that we can expect little more than a left-liberal interpretation and critique which is the staple of the metropolitan elite and the chattering classes whose disdain for the less suave but more solidly-grounded masses and whose contempt for tradition and time-tested values (including those which animated the endeavours of many of India’s Constitution-makers) is barely concealed. Which, of course, cannot be a reason for dismissing the book off-hand. Instead, works like these must be welcomed, and used by those who do not subscribe to the leftist worldview as a springboard for wide-ranging and robust debate on the merits of the arguments presented. There is also, incidentally, much in the book with which ideological conservatives will make common cause with the author, although not always for the reasons adduced by him (a notable example being his searing criticisms of many of the personages who have occupied high judicial office in India in recent years).

In terms of organisation, the book is divided into three parts dealing with rights, constitutional structure and the judiciary. Perhaps not surprisingly, the first of those parts is disproportionately large, occupying as it does nearly half the total number of pages. It is sub-divided into 6 sections dealing with: personal liberty; privacy, equality and dignity; social justice and reservations; socio-economic rights; refugees and non-citizens; and Kashmir after the recent constitutional amendments. By contrast, the section on constitutional structure is disconcertingly short: just three chapters (on federalism, anti-defection and the right to information). Clearly, the most engaging – and provocative – part of the book is the one dealing with the judiciary. This has essays on, among other things, the Supreme Court’s evolving doctrine of constitutional evasion, and the perils of an ‘executive’ court, as well as acerbic pen-portraits of five controversial Chief Justices.

The author is not entirely fanciful or paranoid when he adverts to the possibility of some of his writings (including those contained in this volume) “landing me in a pickle”. Given the rising tide of intolerance of criticism among judges – ascribable almost entirely to fragile egos and frightening levels of insecurity arising from incompetence and worse – it wouldn’t require too much provocation for an entirely flimsy case of contempt of court to be slapped on the author, leaving him to suffer the ravages of a brutal and quixotic legal system for years on end. Against that background, his exertions must be seen as courageous as well as public-spirited.

There are well-deserved raps on the knuckle for members of the legal profession as well. The author condemns the “breathless hyperbole” of senior counsel praising retiring judges, whether or not such praise is deserved. In the case of one Supreme Court judge, Justice Rohinton Nariman, he believes that more circumspection was called for, given his less-than-glorious record in at least two cases while on the Bench. Greater opprobrium is reserved for Justice AM Khanwilkar, whose judicial conduct is seen as particularly egregious. Among other things, this judge reversed his own view in an important and socially fraught case, without so much as an explanation for the about-turn, after a review petition had been filed in the Supreme Court. The author comments wryly but aptly:

“Walt Whitman could well ask the rhetorical question, ‘Do I contradict myself?’, and expect his readers to nod knowingly when he answered, ‘Very well then, I contradict myself’. But that is not open to a Supreme Court justice who, with a stroke of a pen, can extend or withdraw rights from millions of people.”

The author makes a wider point whose validity is difficult to impugn, regardless of whether one shares his ideological leanings, and it has to do with the extent to which the Supreme Court of India has compromised its traditional image of impartiality when it comes to adjudication on personal rights:

"It is not always that the State always wins and the individual always loses...Rather, it is the manner in which the State wins. When it comes to the State’s claims, the State’s interests, the State’s (presented) facts, the State’s vision of the world, the court treats all this with a feather-light touch, takes everything as true and occasionally takes the time out to praise the State and its authorities for the great job they are doing,  On the other hand, when it comes to the individual, the court turns into the proverbial ‘lion under the throne’, baring its fangs and unsheathing its claws."

The author does not pull his punches when excoriating a number of recent Chief Justices: Arvind Bobde for “duplicity in the exercise of the powers of the master of the roster”, NV Ramana for “judicial evasion”, Ranjan Gogoi for overseeing a “drift [of the Supreme Court] from a rights court to an executive court”, and UU Lalit for failing to stand up for personal liberty (Lalit had decided to constitute a special sitting of the court on a Saturday morning to suspend an order of acquittal passed by a High Court – which, says the author, was “like a paean to State impunity”). 

All very well and creditable, one might say, but can one expect similar condemnation of those judges who, through their ‘wokeness’, are chipping away at the foundations of a judiciary which, for all its faults, has stood the test of time? Only the extraordinarily naïve will hold their breath for any such outcome. Therein lies the weakness of tomes such as these.

The second book - The Colonial Constitution by Arghya Sengupta - is a lightweight offering in both physical and substantive terms. The burden of its song, as the title foreshadows, is that the Indian Constitution is a colonial one. That assertion, it needs to be swiftly added, is not proffered in a complimentary way.

The principal argument adduced by the author is that both the broad design and many of the detailed provisions of the Constitution, which came to be adopted soon after India gained independence from British rule in 1947, were borrowed from the Government of India Act 1935, a British statute which had been condemned by the leaders of India’s freedom movement as a ‘charter of slavery’. Also, contends the author, the constitution-makers – all sons of the soil – opted to preserve powers of preventive detention, a broadly-worded offence of sedition, a centralised government and emergency powers under which fundamental human rights could be suspended. By making these choices, moans the author, the founding fathers of the new republic signaled their fundamental distrust of their own people.

A natural, swift and reasonable riposte to such arguments would be: so what? Is the borrowing of constitutional designs or provisions not common around the world? Should a Constitution be denounced simply because it has colonial origins? There is certainly room for arguments around that theme. It is not without relevance to note that since its coming into force in 1950, the Indian Constitution has been amended 106 times – a fact which, whatever be the merits of some or many of those amendments, shows that constitutional reappraisal is alive and well in independent India (there was even a commission established to undertake a thoroughgoing review the working of the Constitution in 2000).

Is the author asking for a scrapping of the ‘Colonial Constitution’ and its replacement by a new document? Not quite. The closest he comes to indicating an alternative is that the architects of modern India should have heeded Gandhi’s cry to opt for a home-grown document under which India would be a confederation of self-sufficient villages:

"Villages would be the basic units of governance enforcing duties on every resident to engage in constructive work. This would ordinarily include whatever people were good at: khadi production, cattle breeding, agriculture, Congress workers in the village would be duty-bound to enforce total prohibition, serve Harijans [low caste people], boycott foreign cloth, and ensure that all core national activities as determined by the Congress from time to time were carried out in the village…Gandhi believed that India had nothing to learn from anyone else."

A polite response to such ideas would be that it was hopelessly impractical, given the developmental demands of a large nation whose citizens aspired to the same quality of life that people in the rest of the world enjoyed and given the unavoidable need for industrialisation on a sizeable scale. Much harsher words have been used to describe Gandhian prescriptions even by those who have revered him as a noble, patriotic soul.

This book is a hotchpotch of disjointed assertions and cogitations. It adds up to very little by way of coherent argument or firm policy directions; instead, there is a waffly call to “think more deeply about the Constitution rather than merely extolling its virtues in a rhetorical fashion or criticising it unthinkingly.” Contradicting himself, the author (who has explicitly distanced himself from demanding a new Constitution) concludes without irony: “India today needs an honest conversation about its colonial constitution and whether it is ready to chart its own constitutional course. The time for banal homilies is over.” Discerning readers will probably say the same about much of the contents of this book.

Dr Venkat Iyer is a barrister based in the UK.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.