“A Constitution framed after a liberation struggle or a struggle for independence is like poetry, emotion recollected in tranquillity”. This statement by civil rights advocate KG Kannabiran is probably the most quoted sentence in recent times to emphasise the impact of the freedom that the Constitution offered to the citizens of India in 1950.
Fastidiously drafted, the Constitution, etched into the democracy of India, broke the long night of the colonial regime ushering in a new dawn of relations between the state and the subject.
Seventy years after India became a republican state, the courts seem to have failed the Constitution, preventing it from turning into an evolving document. They still continue to retain the archaic Indian Penal Code laws rather than abolishing or re-interpreting them in the light of what the Constitution states.
Advocate Gautam Bhatia, who makes these observations in his new book, argues that contrary to the conventional wisdom, the Constitution is a “transformative”, value-laden document that can keep pace with recent times. He offers a new way of reading the Constitution that remains faithful to the text and its promise of social transformation.
He writes, “At the heart of every constitutional decision is the court’s assessment of what the Constitution means, why it exists in the shape and form that it does and above all, what injustice it is meant to remedy.”
Penned over four years, the author offers a study of nine judgements in the backdrop of “Equality, Liberty and Fraternity”- the three virtues that has been helping democracy flourish even before the days of the French Revolution.
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The argument is expanded through nine not-so-highbrow High Court judgements that were overturned by the Supreme Court. The cases revolve around Articles 14 to 21 of the Constitution which cover equality, religious freedom and the more recent Aadhaar and privacy issues.
Reflecting on the judgements, the author draws a difference between the “conservative” reading of the Constitution and the “transformative” reading of it. Or to put it in a more lucid way, the difference between the Constitution we have and the Constitution we deserve.
Throughout the book, Bhatia makes a strong case for striking out not only the archaic laws that conflict with fundamental rights, but also the post-independence laws that end up doing so. For example, the National Security Act under which Dalit leader Chandrasekhar Rao was put behind bars for more than a year without bail or trial.
He is critical of that Aadhaar judgement which came after the Supreme Court of India upheld privacy as a fundamental right under Article 21 in August 2017. Bhatia called the judgement a direct violation of the privacy verdict and one that put privacy in a limbo.
He contends that state “control over data impacts freedom, perpetuates institutional disadvantage and helps to consolidate private regimes of power.” The government demanding Aadhaar for social schemes can even act as a killer blow for some of the marginalised, Bhatia says.
The crux of his ‘radical’ reading is that the courts in the future need to show the way with an enlightened interpretation that upholds the “transformational” values of the Constitution.
Title: The Transformative Constitution: A Radical Biography in Nine Acts
Author: Gautam Bhatia
Publisher: HarperCollins India
Price: Rs 699