Vidyasagar, Ishwar Chnadra
Virendra v. State of Punjab
Vishaka v. State of Rajasthan
Voices Against
volition
voluntariness
voting and separate-spheres theory
wage-labour
Walangkar, Gopal Baba
Walter Alfred Baid v. Union of India
welfare State
Western liberal democracies
Westminster system of Parliamentary democracy
wifehood qualification
Williams, Bernard
Wilson, Bezwada
witness
Wollstonecraft, Mary
women; burden in terms of labour time and volume; Dalit; disadvantaged workplace norms; discriminatory and unequal treatment; economic contribution to the household; economic vulnerability and marginalization within the family; employment in the liquor industry; exploitation; franchise movement; and men, natural/physical distinctions; and men, separate spheres; oppression; participation in the public sphere; and public/private divide; public citizenship; right to vote; rights; rights within the community; right to worship; sex, roles, the Indian franchise movement, and the Constitution; slavery; social reform movements; special provisions for; status under personal laws; suffrage movement
Women’s Indian Association (WIA)
Woolman, Stuart
workplace exploitation
World Bank
Yusuf Abdul Aziz v. State of Bombay
Zoroastrian Cooperative v. District Registrar
Acknowledgements
THE IDEA FOR THIS book took shape during a seminar course titled ‘The Transformative Constitution’ that I taught at the National Law School of India University (NLSIU), Bengaluru, in January 2015, and the National University of Juridical Sciences (NUJS), Kolkata, in June 2016. The students who took the course and their critical comments and interventions pushed me to think more deeply about the arguments in this book. I am grateful to them.
Many people gave generously of their time and energy to read and comment on various chapters of this book. I am grateful to Ramachandra Guha, Abhinav Sekhri, Vinita Govindarajan, Suhrith Parthasarathy, Timothy Fish Hodgson, Ninni Susan Thomas, Shreya Atrey, Bo Tiojanco, Malavika Prasad, Gulnar Mistry, Mridula Chari, and Vidushi Marda, upon whose shoulders I had thrust the unenviable task of peer-reviewing all or parts of this manuscript, sometimes even as I was writing the part under review. Nikhil Mahajan, whom I have not met nor know in person, read more than one draft chapter on SSRN (formerly known as Social Science Research Network), and sent me detailed and very helpful comments on email.
Litigation is notorious for its bad hours. When I began working on this book, I did not know if the demands of my profession would let me finish it. I could do it because, wherever I worked, my bosses believed in having a life, and in letting their juniors have one too. I am very grateful to Justice S. Ravindra Bhat, Jawahar Raja, and Chander Uday Singh, for creating workplaces where a young lawyer had the time, space, and privacy to carry on with his own projects alongside office work.
This book was written between 2014 and 2018—time that I spent as a practising lawyer in Delhi, when I was lucky to be involved in a number of cases where transformative constitutionalism leapt out of the pages of books and was a live issue, argued in the courtrooms. The arguments in this book have been shaped profoundly by my time in court, on a daily basis, for much of those four years, experiencing the Constitution in action. I do not have words enough to thank Arvind P. Datar, who, in the summer of 2015, brought me on board the National Judicial Appointments Commission (NJAC) challenge (the first of many cases that we have done together), and introduced me to the world of constitutional litigation. His openness, egalitarianism, and intellectual and personal generosity have meant more to a young first-generation lawyer than is possible to express. He may disagree with much of this book, but I also know that he will express his disagreement with a smile and many words of encouragement. Shyam Divan, K.V. Viswanathan, Rebecca John, and Anup Bhambani have been wonderful seniors to brief and learn from. My year and a half in the chambers of Chander Uday Singh was not only intellectually stimulating but also a daily lesson in personal integrity, professional rigour, and a commitment towards expanding rights. For someone who had initially ruled out legal practice as an option because of its hierarchical and nepotistic character, the insistence of every one of these seniors on treating briefing counsel as colleagues and equals was a revelation.
But you learn the most, of course, from your peers. It has been an extraordinary experience of togetherness—long nights and long briefings (often ending with midnight paneer parathas opposite the All India Institute of Medical Sciences; Version 11 of the written submissions; hurried lunch meetings in Library 2 during the breaks between a hearing; paginating files and arranging compilations; and, of course, the frantic, real-time commentary on WhatsApp as the case progressed. More than anything else, this book has been shaped by listening to and debating arguments with my friends and colleagues, as we stood on the same side of the bar, in and outside the courtroom, at a time when decades happened every week.
So, to Sahana, Chinmay, Rishi, and Vaibhav, for being wonderful chamber-mates; to Gulnar, for blunt and uncompromising feedback (including, when necessary, ‘This is such drivel!’); to Mihir, for his penetrating and sardonic wit, utterly unafraid of authority; to Suhrith, who vocalizes my thoughts with an almost eerie accuracy; to Abhinav and Utkarsh, comrades and best friends over four years, for our fortnightly cathartic meetings (‘Did you see what the heck the SC JUST DID!?’), and for preserving our sanity by venting about PILs to each other; to Siddharth and Arvind, for the frantic 2016 and 2018 rounds in Naz Foundation; to Prasanna, Apar, Rahul, Ujwala, Raman, Krittika, Praavita, Uday, and Samiksha, for solidarity and companionship over interminable Aadhaar-and-privacy cases; to Vrinda and Sai, for those manic four months—the best four months of my life—from January to May 2018, when the line between the Aadhaar arguments in the court and academic writing became so blurred that I momentarily lost track of whether we were articulating a culture-of-justification argument for a draft of our written submissions, or for a draft of this manuscript; to Maanav, Rupali, Prateek (PC), Shadan, Sarim, Satyajit, Karan, and to everyone else whose names I cannot readily recall, but with whom I have had the privilege of trying to live the Constitution every day in court—I am so very grateful.
It was not, of course, just the lawyers. I was taught, equally, by the coalitions that formed outside the courtroom: the women and men of the Peoples Union for Democratic Rights (PUDR) who campaigned against the Unlawful Activities (Prevention) Act (UAPA) (and some of whom were arrested under the UAPA three days before this book went to the publisher), Sudha ji, Shalini, and the others at Maati-Kanker, the technologists at Kaarana (Anand, Kiran, Srinivas, Srikanth, and everybody else), the right-to-information activists at Mazdoor Kisan Shakti Sangathan (MKSS) and the National Campaign for People’s Right to Information (NCPRI), Reetika, Jean, and the others who documented Aadhaar exclusions on the ground and translated them into submissions for the court, and of course Usha ji—all were, in their own ways, exemplars of how to live transformative constitutionalism in its deepest sense.
In a very material and tangible way, writing this book would not have been possible without the existence of Libgen. Doing scholarly work outside the gated precincts of a university is like trying to swim with one arm and one leg. Dashing off email requests to friends with access to databases is not an ideal way to work. Libgen allowed me to access books that I could never have afforded, and I am very thankful for all those people who continue to doggedly push for an open knowledge commons, despite all the difficulties. I remain hopeful that those who have the privilege of being within the gated community of academia will understand one day quite how unjust and exclusionary the existing system of unaffordable research databases is, how it monopolizes knowledge and prevents those who cannot, or have chosen n
ot to, enter academia from participating in the conversation. And I hope that they will take some concrete steps to remedy it.
I am grateful to the New India Foundation, whose grant enabled me to buy the books that I could purchase, and were essential for my work. The six-volume Shiva Rao edition on the drafting of the Indian Constitution was the first thing I bought with the money, and it became, of course, an indispensable source for this book. I would also like to thank Krishan Chopra, Siddhesh Inamdar, and the team at HarperCollins, for their editorial work on the manuscript. I am grateful, as well, to Rivka Israel of the New India Foundation, who painstakingly went through the text.
‘The butterfly’s footsteps leave no trace; but the butterfly’s footsteps are never erased.’ Every word of this book bears the butterfly-like, breath-on-glass imprint of three individuals: Justice Bhat, who showed me how empathy and rigour need not be mutually exclusive; Jawahar, who taught me the importance of doubt and scepticism (most importantly, to be sceptical about myself), and steered me away from the temptation of constructing a world to fit your theories instead of the other way round, all the while remaining a model of how to maintain an uncompromising commitment to thought and action; and Ninni, who was the touchstone for testing the intellectual and moral honesty of the arguments that follow. They have given this book a life and a soul.
Home has always been a sanctuary. It only remains to me to thank my parents, for three decades of that sanctuary.
About the Book
The Constitution of India embodies a moment of profound transformation—one in which the subjects of an alien, colonial regime became the free citizens of a republic. Yet, this is the story of constitutions the world over. The Indian Constitution was, however, transformative in a second sense as well: it sought a thorough reconstruction of State and society itself.
It recognized that, unlike in the West, the State had never been the only power centre in India. Deeply pervasive hierarchies were maintained by structures that took various forms—caste, for instance—and the State had limited authority to interfere. The Constitution, then, was intended to transform not just the political status of Indians from subjects to citizens, but also the social relationships on which legal and political edifices rested. This is reflected in its provision of fundamental rights enforceable against groups, communities and private parties—a rarity in constitutions elsewhere even today, let alone in 1950. And it is such forms of transformative constitutionalism that have been at the heart of recent judgements, such as the decriminalization of same-sex relations and the striking down of colonial-era beggary laws.
The Transformative Constitution is an attempt to understand— and to give primacy to—this original transformative vision of the Constitution. Gautam Bhatia interprets India’s founding document in a way which is faithful to its text, structure, and history, and above all to its overarching commitment to political and social transformation. He picks out nine cases—and analyses their judgements in painstaking detail in the context of seven decades’ worth of Indian jurisprudence—to show how they advance the core principles of equality, fraternity, and liberty enshrined in it.
This is a treatise that presents a new way of reading the Constitution as India approaches the seventieth anniversary of its adoption.
About the Author
GAUTAM BHATIA GRADUATED FROM the National Law School of India University in 2011. He read for the BCL and the MPhil at the University of Oxford (on a Rhodes scholarship), and the LLM at Yale Law School. At Oxford, he won the Herbert Hart Prize for writing the best essays in Jurisprudence and Political Theory, and a chapter of his MPhil (on the jurisprudence of Ronald Dworkin) was published as a standalone article in the peer-reviewed Australian Journal of Legal Philosophy.
For the past four years, he has been a practising lawyer in New Delhi, and visiting faculty at various law schools. His practice has seen him involved in some important contemporary constitutional cases, such as the challenge to criminal defamation, and the nine-judge bench right to privacy case (where one of his articles was cited by the plurality judgement). His scholarship has appeared in the Oxford Handbook for the Indian Constitution, Max Planck Encyclopedia of Comparative Constitutional Law, and in peer-reviewed journals such as Constellations and Global Constitutionalism. His first book, Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution, was published in 2015.
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First published in India in hardback in 2019 by
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Copyright © Gautam Bhatia 2019
P-ISBN: 978-93-5302-684-4
Epub Edition © February 2019 ISBN: 978-93-5302-685-1
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Gautam Bhatia asserts the moral right to be identified as the author of this work.
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