New Delhi: A new book draws on pre-Independence legal and political history to argue that the Constitution was intended to transform not merely the political status of Indians from subjects to citizens, but also the social relationships on which legal and political structures rested.
"We think of the Indian Constitution as a founding document, embodying a moment of profound transformation from being ruled to becoming a nation of free and equal citizenship. Yet the working of the Constitution over the last seven decades has often failed to fulfil that transformative promise," Gautam Bhatia, a practising lawyer.
His book "The Transformative Constitution: A Radical Biography In Nine Acts" looks at cases that had a bearing on major recent judgements such as Section 377, Aadhaar and Sabarimala.
"Not only have successive parliaments failed to repeal colonial-era laws that are inconsistent with the principles of the Constitution, but constitutional challenges to these laws have also failed before the courts. Indeed, in numerous cases, the Supreme Court has used colonial-era laws to cut down or weaken the fundamental rights," he says.
According to Bhatia, in September 2018, in the space of a little over three weeks, the Supreme Court handed down four judgments that sent tremors through the country's legal, political, social, and cultural landscape.
"Same-sex relations were decriminalised. Adultery was decriminalised. The Sabarimala temple's ban on the entry of women between the ages of 10 and 50 was struck down as unconstitutional. And Aadhaar - the government's national biometric identification programme - was upheld while its use was significantly curtailed," he says.
"Six months later, the impact of these judgments is still only beginning to be felt, demonstrating once again the importance of the judiciary - as an institution - in India's public life," he adds.
He argues that each of these judgments grappled with fundamental questions about what the Indian Constitution is about.
Do the constitutional guarantees of equality and equal protection prohibit the government from discriminating on the basis of sexual orientation? Is the criminalisation of adultery based upon outmoded notions of sexual subordination and women's lack of sexual agency? How does the Constitution navigate the complex terrain where the beliefs or traditions of religious groups clash with the desires of some of their members to express their faith? And what do the rights to liberty, privacy, and equality have to say about the pervasive adoption of centralised biometric technology in multiple spheres of society? As a marker of just how complex the questions were, two of the four judgments returned split verdicts, with judges penning fierce and eloquent dissents, Bhatia says, adding September 2018 reminded us of how the Constitution is indispensable to our lives as citizens of the republic.
The objective of "The Transformative Constitution", according to Bhatia, is to articulate a roadmap towards understanding what the founding document has to say about these fundamental moral and social questions of the day.
The book, published by HarperCollins India, advances a vision of the document organised around the three words of the Preamble - liberty, equality, and fraternity - and argues that the purpose of the Constitution was not just to protect the individual against State power, but to undertake a thorough reconstruction of both State and society.