The Transformative Constitution

A Radical Biography in Nine Acts

Bibliographic Data

ID23151971
AuthorsSandeep Suresh (Jindal Global Law School (India), corresponding author)
Year2020
Volume18
Issue2
Pages668-672
Publication date2020-08-04
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueInternational Journal of Constitutional Law (JOURNAL)
Journal identifiersISSN: 1474-2640 • E-ISSN: 1474-2659
PublisherOxford University Press (OUP) (PUBLISHER)
DOI10.1093/icon/moaa046
OpenAlexW3047464422
LanguageEN
Citations received12

In The Transformative Constitution: A Radical Biography in Nine Acts, Gautam Bhatia presents compelling arguments about the transformative interpretation of the Constitution of India (Constitution). Bhatia presents two distinct—and conflicting—readings of the Constitution’s fundamental rights chapter. One is the conservative reading which has largely dominated Indian judicial history (at xx). In contrast, The Transformative Constitution unearths the existence of and advocates the transformative approach to reading the Constitution. The author contends that the Constitution’s framing in 1950 marked a moment of political, as well as social, transformation. On the one hand, the Constitution’s underlying theme of liberal constitutionalism intended to limit state powers and alter the colonial culture of authority into a culture of justification (at xxxviii). Beyond that, Bhatia shows that the Constitution was designed to alter the relationship between individuals and the society as well. The private sphere contained entrenched hierarchies of “domination and authoritarianism” which hindered the effective exercise of individual rights (at xxv and xxxii). In particular, the book examines articles 15(2), 17, and 23 of the Constitution which were drafted to disintegrate such non-state structural barriers which threatened the equal access of citizens to basic goods that are necessary to lead a dignified life (at xxxvii). The author establishes these propositions by discussing three judgments each on various aspects of equality, fraternity, and liberty over nine chapters. In the process, Bhatia dissects relevant debates in the Constituent Assembly (Assembly) to understand the rationale behind particular provisions. He locates these debates in the broader sociopolitical literature and political events during the freedom struggle with regard to certain marginalized sections (based on sex and caste mainly) in the colonial society. Integrating such materials with a more traditionally legal analysis of the existing jurisprudence on specific topics, the author provides a diverse account to discuss the transformative nature of selected judgments delivered by the Supreme Court of India (SCI) and other High Courts. Part One is a conversation about judgments on equality. In Chapter 1, the author starts with Anuj Garg v. Hotel Association of India.1 In this case the SCI invalidated a law that prohibited women to work in bars which sold alcohol. The government had justified the exclusion as a protection for women from the hazards of employment in the industry. But the court held that this law sanctioned romantic paternalism2 (at 16) and was based on socially entrenched gender stereotypes that have historically allocated separate politico-economic functions and household duties to men and women, respectively. Further, the court ruled that the legislature cannot dictate that all women are unfit for a particular task merely because there are natural physical differences between the two sexes (at 15). In identifying the change which Anuj Garg brought to the sex equality jurisprudence under article 14 of the Constitution, the author draws inspiration from Bankim Chandra Chattopadhyay’s political writings, the Indian National Congress 1939 report on Women’s Role in Planned Economy, and the Indian franchise movement’s narratives (at 21–24). Yet, the author’s account of the Assembly debates to substantiate this chapter’s analysis is left unclear, as apart from briefly mentioning that certain amendments which supported the entrenchment of the separate-spheres theory vis-à-vis workplace safety (at 31–32), the author does not provide the objections raised by the members which led to their rejection. Further, Chapter 2 presents the Delhi High Court’s decision in Naz Foundation v. NCT of Delhi3 which expanded the list of prohibited grounds of discrimination under articles 14 and 15 of the Constitution to sexual orientation, and, consequently, decriminalized homosexual acts. What Anuj Garg and Naz Foundation tell us is that equality is the antithesis of class legislations based on sex, sexual orientation, and other immutable personal characteristics. But Chapter 3 introduces two concurring judgments in State of Kerala v. N. M. Thomas4 which clarified that caste-based reservation in government jobs5 is justified within the Constitution’s equality framework. According to Justice Mathew, it is true that everyone is equally entitled to government jobs regardless of their caste and thus must have an equal chance to satisfy selection requirements such as examination scores. However, there is a section of citizens which, due to their group identity (“backward castes”), could not benefit from any favorable conditions to improve themselves in order to be in a position to satisfy a given set of selection conditions. Justice Krishna Iyer’s judgment supplemented this by stating that reservations can be allowed only if the disadvantage to a group’s members has been caused over a period of time by social structures dominated by upper classes and not those disabilities caused by “nature’s accident” (at 87–90). Thus, the judges concluded that constitutionally authorized reservations enable to overcome such structural barriers which prevented many individuals to access basic goods in their socioeconomic life (at 102). On this basis, the author contends that this rationale can be used to provide affirmative action for other marginalized non-caste communities as well which have been sites of historical social discrimination and related disadvantages.6 One might wonder how the rationale of N. M. Thomas might apply to a pending challenge in the SCI against the 103rd Amendment of the Constitution.7 This Amendment altered article 16 of the Constitution to provide reservation within the general category for economically weaker sections who are not given reservation as per the current policies. Applying the effects-oriented test of historical disadvantage caused by the society’s structural hierarchies, this new scheme does not sit well with N. M. Thomas’s logic which the author supports. First of all, this benefit is solely offered to the general category (essentially, upper castes) which has not faced the wrath of societal barriers in the past. Second, economic weakness, as Justice Krishna Iyer might argue, is not something that is structurally caused until and unless it is coupled with caste-based barriers. But elsewhere, the author seems to have moved away from this rationale to defend the new amendment.8 While Part One talks about the state’s treatment of the individual right to equality, Part Two (fraternity) discusses cases that have regulated the relationship between the individual and the society. As noted above, to reform existing power hierarchies in the private sphere where non-state actors dominate weaker sections, the spread of fraternity within society is critical. Irrefutably, this is the most vital Part of this book for two reasons: first, constitutional provisions such as articles 15, 17, and 23 have not received as much attention in previous books in this field as they do in Bhatia’s book; and second, as the author rightly underlines, constitutionally promised equality or freedom can translate into tangible goods in our lives only when sources of domination in the community are eliminated (at xxviii). In that context, the issue of housing discrimination faced by Indian Muslims9 is the focus of Chapter 4. Here, the book selects the factually unrelated judgment in Indian Medical Association v. Union of India10 to reveal the transformative content of article 15(2) that can be utilized to deal with the current issue. Article 15(2) states that citizens cannot be denied access to “shops, public restaurants, [and] hotels” based on factors such as religion and caste. The SCI concluded that the Constitution’s drafters had not intended the word “shop” to be interpreted merely in its literal and tradition sense. By relying on speeches in the Assembly, including that of Dr Ambedkar, the author agrees with the Court’s reasoning that article 15(2)’s concrete wording was, nonetheless, broad enough to challenge denial of access to places that provided services based on economic transactions like schools, or, for that matter, the renting of houses (at 129–131). Appreciably, the author weaves a justification of this expansive reasoning that disregards any form of exclusion from participation in society’s economic life by grounding it within the constitutional text and its founding intentions. While discussing Saifuddin v. State of Bombay11 in Chapter 5, the author exposes an even more egregious discriminatory practice in Indian society. Here, Bhatia highlights the spirit of transformative constitutionalism in the dissenting judgment by Chief Justice Sinha. The dissent upheld a law that curtailed religious excommunications by relying on the anti-exclusion principle which condemns discriminatory practices that result in denial of basic civil rights of those concerned (at 159). Today, Goolrokh Gupta v. Burjor Pardiwala is a notable ongoing case before the SCI which raises a similar issue as Saifuddin.12 When the court decides whether a Parsi woman is allowed, inter alia, to conduct her parents’ death rituals at Parsi Towers of Silence after her marriage to a non-Parsi, the author would hope that the spirit of Saifuddin’s dissent will prevail. However, in the Sabarimala case,13 in which the SCI intriguingly overturned the ban on women aged between ten and fifty years of age from entering a Lord Ayyapa temple, Justice Indu Malhotra’s dissent seems to be even more convincing in this context. She held that in terms of the discrimination’s effects, the Sabarimala prohibition is not “pernicious, oppressive, or a social evil like Sati”,14 or, for that matter, even the impugned practices in Saifuddin and Goolrokh. Despite the anti-exclusionary principle’s attention to the practical impacts on the exercise of basic civil rights, majority judgments in Sabarimala did not investigate how the bar to enter this temple has affected women’s exercise of other civic rights in the community. Similarly, quite contrary to his appreciation of the use of effects-oriented tests in anti-discrimination cases throughout the book, the author appears to have not weighed this consideration while lauding the majority judgments in Sabarimala. Strikingly, the first case to be discussed in Part Three, T. Sareetha v. T. Venkatasubbaiah,15 also resembles the tone of Part Two. Here, while striking down a court order for restitution of conjugal rights in favor of the husband, the Andhra Pradesh High Court formulated the choice argument in the language of decisional privacy16 of a woman to exercise her autonomy in making private decisions even within institutions such as the family (at 219 and 230).17 According to the author, this reasoning does justice to the constitutional framework that adopted individuals and not institutions like the family as the primary unit in the fundamental rights chapter of the Indian Constitution (at xxx–xxxi).18 Finally, in the Epilogue, the author cautions about future challenges posed to transformative constitutionalism by the intervention of technology and data accumulation in the relationship between the individual and the state. Here, Bhatia explains the hostile effects of the technology-based Aadhar programme on fundamental rights.19 For the author, substantive equality is violated when individuals from marginalized sections of society are denied access to basic goods like food grains from the Public Distribution System (PDS) due to non-verification of biometric details (at 330 and 336).20 The problem that arises due to the intermediary presence of private agencies which conduct the biometric verification before supply of benefits, along with the impact of such centralized databases of private data on individual privacy, also finds a place for discussion here (at 337–339). The author may have strengthened this cautionary tale if the book had highlighted the effects of technology-based data accumulation in the private sphere as well. There is a case pending in the SCI challenging WhatsApp’s data-sharing policy for violation of the right to privacy as it unilaterally permits WhatsApp to share data with Facebook for the purposes commercial advertising.21 Ostensibly, this looming issue strikes at the nodal issue raised in this monograph; the Constitution’s capacity to prevent invasion of individual rights by non-state power regimes. The Court’s decision in cases like this would surely determine the extent to which this book’s transformative vision will be adopted to define India’s rights framework in the future. Overall, this book makes a unique contribution to the literature on Indian constitutional law. The book’s methodology has inspiringly adopted Edward Said’s contrapuntal approach to identify the Constitution as a value-laden document beyond its tangible text.22 Interestingly, by the project’s nature, The Transformative Constitution is comparable to Akhil Reed Amar’s America’s Constitution: A Biography.23 Although Bhatia’s book solely concerns fundamental rights in the Constitution, whereas Amar’s is wider in scope, they are similar because of the method adopted. Both of these books endeavor to painstakingly excavate the real connotation of the constitutional text by reflecting on the legal, historical, and sociopolitical context behind the founding moment. Finally, the publication of this erudite monograph is timely. In light of several judgments the SCI delivered in 2018, such as Sabarimala, that are considered to be liberal, this book would enable readers to comprehend those judgments contextually and not merely celebrate them based on ideology.

Biography · Constitution · Pedagogy · Political science · Sociology · Transformative learning · Law · Race, History, and American Society

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