Parsing judgments: Review of ‘Unsealed Covers’ by Gautam Bhatia

Gautam Bhatia’s interrogation of judicial power is imbued with a passion for constitutionalism.

A family leaves  leaves, carrying its belongings, after an anti-encroachment drive was conducted in riot-affected Nuh, Haryana, on August 5. The book draws from comparative law to address the challenge posed to the rule of law by the emerging pattern of demolition of homes of those the state deems troublesome. | Photo Credit: SUSHIL KUMAR VERMA

Gautam Bhatia’s Unsealed Covers covers a pivotal 10 years (2013-22) in the history of the Supreme Court of India. The essays are selected from over a thousand posts on the blog “Indian Constitutional Law and Philosophy”, covering a range of matters on which the courts have pronounced, from the evolving jurisprudence on Fundamental Rights to issues ranging from federalism to the constitutional structure. Bhatia’s writing is actuated by the belief that “the making of constitutional meaning is a continuing struggle between the entrenchment of power and its democratisation”

Unsealed Covers: A Decade of the Constitution, the Courts and the State

By Gautam Bhatia

HarperCollins India 

Pages: 496

Price: Rs..699

The pieces were written with a sense of urgency, sometimes overnight as the author burnt the midnight oil in an attempt to interpret and explicate the nuances of judgments, sometimes running to 500 pages. Coming, as they often did, the day after a judgment was delivered, the pieces provided a first cut on how the judgment was to be interpreted. They combined the “immediacy of legal reportage with the rigour of academic analysis” and provided an informed understanding of the judgment in question.

It will not be an exaggeration to say that Bhatia’s blog has become the go-to place for incisive, yet timely, analyses of court judgments not just for the legal fraternity but also for mediapersons, academics, and constitutionally minded citizens who yearn to know more about landmark judgments. By bringing together these reflections in one place, Bhatia is telling us a fascinating story of the Indian Supreme Court as a terrain of struggle.

A series of blog posts written over 10 years always runs the risk of being rendered otiose by the lapse of time. This book, however, succeeds remarkably in communicating the urgency and passion of the moment when a particular judgment was written. Yet, it does not just look back at the historical record. The issues that Bhatia covers have lost none of their salience, be it the judicial interpretation of the bail provisions of the Unlawful Activities (Prevention) Act or the question of whether the Chief Justice ought to exercise exclusive power as the “master of the roster”. The pieces add up as one sees the ebb and flow of judicial interpretation over a period of time, always within the frame of the Constitution, the experience leavened with a prose that reflects “anger and elation, rage and relief, sadness and joy”.

Celebrations after the Supreme Court’s verdict decriminalising LGBT lives and revoking Section 377 of the Indian Penal Code, on the apex court premises in New Delhi in September 2018. | Photo Credit: REUTERS

To give just one example of the author’s voice: after taking apart the legal reasoning in a judgment by the Supreme Court, which allowed the deportation of a group of Rohingyas back to the land from where they had fled a genocide, Bhatia laments the disturbing fact of “not the absence of legal sense in the court’s order, but the death of its moral sense”.

A compelling narrative

By putting together his posts over a period of time, Bhatia tells a compelling story. The narrative, which begins with the nine-judge bench decision in Puttaswamy, traverses to Navtej Singh Johar and the decriminalisation of LGBT lives, moves on to the recognition of the right of women to pray in Sabarimala, and the falling short in the Aadhaar case. One gets a panoramic view of how the law has evolved in the area of what Bhatia characterises as “privacy, equality and dignity” and where it has failed to move forward (not striking down the hijab ban and not criminalising marital rape).

Strikingly, with every piece there is a disclaimer at the end stating that the author may have either assisted a senior counsel in the matter or the author’s work may have been cited in the judgment. The analysis is thus informed by an extensive engagement with the reams of material that form the basis of the judgment and by the author’s presence in court as an advocate in the matter.

The book draws from comparative law to address the troubling challenge posed to the rule of law by the emerging pattern of demolition of homes of those the state deems troublesome, be they from the minority community or dissenters. Across the country, from Jahangirpuri in Delhi to Khargone in Madhya Pradesh to the coast of Gujarat to Uttar Pradesh and Nuh in Haryana, the state has in violation of the rule of law and the Constitution followed the path of demolishing homes. Bhatia urges his readers to see that underlying the demolitions is “an evolving pattern of collective punishment by the state”. He borrows from Columbian law to characterise this as a “unconstitutional state of affairs” that can be a “useful instrument to address a systemic, state-sponsored deployment of unconstitutional practice”. The courts are urged to act to ensure that such a state of affairs is not allowed to persist and ensure that everything is “put back in order with the Constitution”.

Rise of the “executive court”

A not-to-be-missed part of the book is the reviews of the tenures of Chief Justices and other key judges who have retired. The most delectable of these is the essay on Ranjan Gogoi. The post is appositely called a “little brief authority” in which Bhatia charts what he calls the rise of the “executive court”. The former Chief Justice’s judgments are parsed for their “executive mindedness”. Bhatia makes the compelling point that what distinguishes the judiciary from the executive is that “judicial legitimacy comes from open and public reason-giving”, whereas Gogoi with his “penchant for sealed covers” converted a judicial forum into the executive’s court as “secrecy is the hallmark of the executive”.

Former Chief Justice Sharad Arvind Bobde’s tenure is described as one of “evasion, hypocrisy and duplicity” during which he delivered “precisely zero judgments of constitutional import”. Bhatia quotes the classical idea of the judiciary as the lion under the throne and says that the judiciary was “on its way to becoming a mouse under the throne” during Chief Justice Bobde’s tenure.

Chief Justice N.V. Ramana is castigated for crossing the line from “judicial caution to judicial pusillanimity” as he “avoided constitutional cases with a ten-foot barge pole”. Chief Justice Dipak Misra is excoriated for ignoring precedent, jurisdiction, and judicial propriety in his pursuit of outcomes and the language he used is described as “opaque, turgid and impenetrable”.

The only Chief Justice who comes in for some qualified appreciation is Chief Justice Uday Umesh Lalit, who in his “brief, flickering tenure” of four months “accomplished significantly more than all his predecessors put together”.

How does one see this scathing criticism?

Since the judiciary is a co-equal branch of the Indian state, its exercise of constitutional power is not subject to any other process of review.

Highlights

• The issues that Bhatia covers, the reviewer says, have lost none of their salience, be it the judicial interpretation of the bail provisions of the UAPA or the question of whether the Chief Justice ought to exercise exclusive power as the “master of the roster”.
• A not-to-be-missed part of the book is the reviews of the tenures of Chief Justices and other key judges who have retired., the most delectable of these being the essay on Ranjan Gogoi.
• One way of making judges accountable is through academic criticism of judgments, and this is what Bhatia does in his blog and in this book.

Academic criticism of judgments

How then does one make the judiciary accountable?

As Professor Upendra Baxi puts it, in the United Kingdom the “law lords are said to tremble when they open the latest issue of the Law Quarterly Review. This is because the LQR has thirty to forty pages of scholarly comments on judicial decisions, and they look eagerly lest their names appear in those pages. But the power of the academic mind in ensuring judicial accountability is a relatively unknown cultural commodity in India. Very few people have developed the sustained hobby of interrogating judges.”

One way of making judges accountable is through academic criticism of judgments. Bhatia notes: “Supreme Court judges wield tremendous power, and Chief Justices even more so.” For him, “the function of words is to call power to account and, when necessary, to do so adversarially”.

Bhatia’s fearless interrogation of judicial power is based on constitutional reason and imbued with a passion for constitutionalism. We need more such voices in the time going ahead when defending the Indian Constitution is set to become an even more fraught affair.

Arvind Narrain is an advocate and founder member of the Alternative Law Forum, Bengaluru.