A Successful Critical Interrogation of India's Justice System

Gautam Bhatia's 'Unsealed Covers' is divided into three parts: rights, constitutional structure, and the judiciary, respectively, and each article covers a judgment (or a set of judgments) corresponding with the larger theme.

Unsealed Covers is a collection of essays published on the Indian Constitutional Law and philosophy blog, a legal resource that, over the years, has become an almost universal reference for law students, lawyers, academics and almost anyone interested in legal developments. At a time when constitutional bench hearings are streaming on news channels and the Supreme Court is in front and centre of the political discourse in the country, author Gautam Bhatia’s work (in this book and otherwise) has allowed us entry into courtrooms, often on the very same day as a verdict, and get a fly on the wall view of the wheels of justice turning.

As someone who has benefited from the blog on numerous occasions, both to clarify and understand important questions of law as well as to use as a source of research and analysis in a time of crisis, the first thing that strikes the reader about Bhatia’s writing is how each article (individual blog posts reproduced in the book have been referred to as articles for the purpose of this review) breaks down intricate legal cases and principles, offering readers a clear understanding of their significance and implications. Even for those without a legal background, Bhatia’s explanations are enlightening and allow for engagement with both the process and the substance of adjudication in the Appellate courts of the country.

Unsealed Covers: A Decade of the Constitution, the Courts and the State by Gautam Bhatia (HarperCollins India, August 10, 2023)

To add to this, the sheer breadth of issues that Bhatia has managed to cover in a lucid and yet information laden prose (the book informs you that the posts covered within it are less than 5% of the total number of blog posts) is remarkable. The book is divided into three parts: rights, constitutional structure, and the judiciary, respectively, and each article covers a judgment (or a set of judgments) corresponding with the larger theme.

The first part is the heavily contested terrain of ‘rights’, where Bhatia takes a largely scathing view of how courts in the past decade have responded when asked questions about personal liberty, citizenship, the demolition of homes among many others. This is notwithstanding some notable exceptions such as the judgments for reservations in promotions, the right to privacy judgments (with a note of caution on how the principles contained within are operationalised by subsequent courts, which has turned out to be prophetic) and the Supreme Court overruling Suresh Kumar Kaushal to hold that members of the LGBTQ+ community are equally entitled to rights under Part III of the Indian Constitution.

A theme which emerges from this part, and one that has been referred to by other authors in the recent past, is a judicial roulette or lottery— where a citizen’s liberty (or the lack of it) or indeed the burden of establishing citizenship — may be determined by the simple chance (or design) of which bench your case is listed before. This may be an unavoidable consequence of a court with 32 sitting judges (usually sitting in combinations of two or three judges), but it does leave room to desire greater judicial consistency, especially in matters where individual citizens or marginalised communities have approached the courts seeking hope of liberty and due process.

Critics of the work may possibly spew allegations ranging from it being borne out of activist lawyering, but to his credit, Bhatia is not one to shy away from praise of judgments and dissents that according to him follow constitutional doctrine and lead to expansion of rights. One of the many themes emerging from his work is the notion that it is only through deliberative dialogue that the transformative vision of India’s constitution makers can be achieved, and any attempt to fetter this dialogue, rather than protecting the majesty of the judicial apparatus, in fact only serves to weaken its foundations.

Also read: Judiciary in the Modi Era: Shielding the State and Leaving the People Vulnerable

The second part of the book deals with questions of federalism, anti-defection laws and the Right to Information. The Supreme Court is fresh off a marathon 16-day hearing of the various petitions challenging the power and procedure of the reading down of Article 370; and in the past year alone has delivered judgments regarding the Delhi government’s power over administrative services in the capital status of the NCT of Delhi (Govt of NCT v. Union of India), modifying the process of appointing members to the Election Commission of India, (Anoop Baranwal v. Union of India), and on the rift in the Shiv Sena and the manner of functioning of the governor and the Speaker of the House in Maharashtra (Subhash Desai v. Principal Secretary, Governor of Maharashtra).

Crucially, the positions of law enunciated in ‘Govt of NCT’ and ‘Anoop Baranwal’ have since been altered by the Union government through the introduction of an Ordinance and a Bill, respectively. This highlights the tripartite tension that exists between the consolidation of power in the Union on one hand, and the principle of separation of powers between the organs of government as well as between Union government and State on the other.

Bhatia’s enunciation on the developments in judicial discourse of federalism, the workings of the anti-defection law and the role of Fourth Branch institutions are a crucial prism through which we should view these recent developments – and predict the manners in which this tension will continue to prevail.

Gautam Bhatia during a panel discussion in August 2019. Image: YouTube

Much like the constitution, the heart of Unsealed Covers lies in Part III that is, judiciary. This section focuses on the functioning of the Supreme Court as an institution, as well as on the legacy of specific judges (as a keen observer may glean from the title of the book). This aspect of Bhatia’s work serves as a radical critique of an institution that though so central to the democratic structure of the nation and to the lives of people, continues to be opaque in its functioning and often unwilling to accept rigorous public scrutiny.

The author highlights various instances where major questions were asked of the functioning of the court, and the responses were either found wanting or fundamentally contrary to the principles of natural justice. His articles on the allegations of sexual harassment against a former Chief Justice of India, the manner in which the enquiry was conducted, and the questionable instances that played out are a stark indictment. The fact that the complainant in the case was “..in effect….damned by five of the most powerful men in the country before being heard” is a distressing legacy for the Supreme Court.

Apart from that, the articles on the legacy of individual judges stand out as fascinating insights into the ‘polyvocal’ nature of the Supreme Court and the progress (or regress) of the jurisprudence of different strands of the law as influenced by specific judges.

Also read: If Supreme Court Has to Remain People-Centric, It Has to Shed Its Polyvocal Image

An obvious criticism is that Bhatia is not a detached observer as some may expect a chronicler of courts to be. He informs his reader of his involvement in a number of cases that he writes about. But Bhatia, unlike the law, makes no bones about the fact that he is decidedly not neutral or dispassionate. I would also further argue that this is in effect the uniqueness of Bhatia’s work – that a lawyer and an academic who participated as an advocate in many of the cases he writes about offers a detailed perspective that the brightest of dispassionate and uninvolved observers will not be able to offer. This is best shown in Bhatia’s analysis of the Right to Privacy (Justice K.S. Puttaswamy v. Union of India- 2017), Section 377 (Navtej Johar v. Union of India) and Aadhaar (Justice K.S. Puttaswamy v. Union of India- 2019) judgments.

In various instances, the efforts of Bhatia and other lawyers and journalists to critique the merits as well as the manner of functioning of individual cases and legal institutions have been questioned as contemptuous of the court. In fact, Bhatia himself deals with one such instance in his article regarding the curious workings of the many judges hearing the set of cases regarding interpretation of Section 24 of the Land Acquisition Act. In response, I submit that the majesty of the court is more than capable of dealing with such criticism and is in fact strengthened by it. There can be no doubt that rigorous public debate about the merits of decision only strengthens belief in the rule of law – a belief which is the very cornerstone on which rests the authority of the judiciary. Far from being discouraged, it should be promoted and celebrated. A world of law students engaging in debates on issues highlighted in this book can only serve as a net positive for the legal institutions, and society at large.

In his preface, the author states that his goal is to demystify, democratise, and promote engagement with constitutional law. His work, in this book and beyond, has been hugely successful at doing so. I would take the liberty of adding a fourth – that is, critical interrogation of the justice system of our nation. It is this that he has been successful at in challenging times, and for this his book deserves most credit.

Archit Krishna is a lawyer practicing in New Delhi.