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The Transformative Constitution: A Radical Biography in Nine Acts
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 fulfill that transformative promise.
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.
The Transformative Constitution by Gautam Bhatia 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. He advances a novel vision of the Constitution, and of constitutional interpretation, which is faithful to its text, structure and history, and above all to its overarching commitment to political and social transformation.
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.
The Transformative Constitution by Gautam Bhatia 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. He advances a novel vision of the Constitution, and of constitutional interpretation, which is faithful to its text, structure and history, and above all to its overarching commitment to political and social transformation.
544 pages, Hardcover
First published February 28, 2019
103 people are currently reading
968 people want to read
About the author
Gautam Bhatia
16 books972 followersGautam Bhatia is an Indian science fiction writer.
He is the author of the SF Duology, The Wall and The Horizon, both of which featured on Locus Magazine's Recommended Reading Lists in 2021 (Best Debut Novel) and 2022 (Best Science Fiction Novel). The Wall was a finalist for the 2021 Valley of Words Best English Language Novel Prize. Bhatia was long-listed for the Astounding Award for Best New Writer at both the 2021 World Science Fiction Convention (WorldCon), and the 2022 WorldCon.
Bhatia is also the co-ordinating editor of Strange Horizons, a weekly online magazine of fantasy and science fiction, which won the British Fantasy Award in 2021, and has been a finalist for the Hugo Awards every year since 2013. In 2022, he was nominated for a World Fantasy Award for his work with the magazine.
His reviews and essays on science fiction and fantasy have appeared in Strange Horizons, The Hindustan Times, Scroll, and The Wire.
In his spare time, he is a lawyer.
He is the author of the SF Duology, The Wall and The Horizon, both of which featured on Locus Magazine's Recommended Reading Lists in 2021 (Best Debut Novel) and 2022 (Best Science Fiction Novel). The Wall was a finalist for the 2021 Valley of Words Best English Language Novel Prize. Bhatia was long-listed for the Astounding Award for Best New Writer at both the 2021 World Science Fiction Convention (WorldCon), and the 2022 WorldCon.
Bhatia is also the co-ordinating editor of Strange Horizons, a weekly online magazine of fantasy and science fiction, which won the British Fantasy Award in 2021, and has been a finalist for the Hugo Awards every year since 2013. In 2022, he was nominated for a World Fantasy Award for his work with the magazine.
His reviews and essays on science fiction and fantasy have appeared in Strange Horizons, The Hindustan Times, Scroll, and The Wire.
In his spare time, he is a lawyer.
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Displaying 1 - 24 of 24 reviews
September 26, 2025
This is a book that every Indian should read; especially at this point of time, when efforts are ongoing to subvert our democracy, big time.
As much as 75 percent of the Indian constitution was based on colonial law: however, the author believes that it can be interpreted transformatively, to make it suitable for the modern world. He says that there are two approaches to how the legal system can treat the constitution: "the living tree" approach, in which the document is constantly updated to keep pace with the changing times; and "constitutional originalism", in which it is frozen at the moment of framing. Both these have their advantages and disadvantages. The first approach makes the constitution a dynamic document, but carries with it the danger of major alterations which destroy its very nature; the second, while protecting its spirit, makes it too rigid. However, in the transformative approach
This book was published in 2019, when Modi 2.0 had just started. Now we have Modi 3.0, and a country which is slowly moving towards a fascist state with a right-wing legislature, an executive which functions as a paid goon of the government, and a very pliant judiciary. The robustness of the constitution is the only thing that is standing between the citizen and a theocratic fundamentalist state. Will our courts deliver?
We can only hope.
As much as 75 percent of the Indian constitution was based on colonial law: however, the author believes that it can be interpreted transformatively, to make it suitable for the modern world. He says that there are two approaches to how the legal system can treat the constitution: "the living tree" approach, in which the document is constantly updated to keep pace with the changing times; and "constitutional originalism", in which it is frozen at the moment of framing. Both these have their advantages and disadvantages. The first approach makes the constitution a dynamic document, but carries with it the danger of major alterations which destroy its very nature; the second, while protecting its spirit, makes it too rigid. However, in the transformative approach
Unlike the prominent variants of originalism, however, transformative constitutionalism is not frozen at the moment of framing. While taking text, structure, and history as crucial building blocks of constitutional meaning, it does not accord an overriding veto power to any of them. It does not bind itself to a mythical ‘original intent’ of the framers, and nor does it tie itself to the ‘original meaning’ that the words used by the Constitution carried in 1950. Transformative constitutionalism recognizes that the framers were building a Constitution meant to last for generations. They were careful and conscious about the words they chose, and the words they chose (for the most part) expressed principles that would endure, not concrete commitments that would soon lose their salience and become antiquated in a rapidly changing world. Transformative constitutionalism’s task is to identify and express these founding principles that constitute the framework within which constitutional interpretation is to be carried on.Bhatia says that Indian democracy is built on the three pillars of liberty, equality and fraternity.
Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality, and fraternity as the principles of life. These principles of liberty, equality, and fraternity are not to be treated as separate items in a trinity. They form a union of trinity … liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative … Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.The author then goes on to analyse nine landmark cases, in which these three aspects came up for review - and how the courts handed out really transformative judgements, which helped India move forward, one step at a time. However, these were few and far between. Indian courts are usually very conservative, and they toe the line of the powers that be. Change is very hard to come by - but when it does (like the judgement decriminalising homosexuality), it's all the more to be celebrated.
***
The Preamble promises to secure to all the citizens of India liberty, equality, fraternity (and justice). It makes no mention of peoples, nations, groups, communities, denominations, or religions. The three pillars of liberty, equality, and fraternity hold up an elaborate constitutional structure that places the individual front and centre. That is how we must understand and interpret the transformative Constitution.
This book was published in 2019, when Modi 2.0 had just started. Now we have Modi 3.0, and a country which is slowly moving towards a fascist state with a right-wing legislature, an executive which functions as a paid goon of the government, and a very pliant judiciary. The robustness of the constitution is the only thing that is standing between the citizen and a theocratic fundamentalist state. Will our courts deliver?
We can only hope.
March 29, 2019
For introduction of the book, I can briefly summarise that, there are nine cases discussed in the book, and the author is practising as a Lawyer so he was professionally involved with four of the cases discussed in the book. I am really confused while writing the reviews as the book is written so perfectly considering minor details and descriptions, I feared that I might not give proper justice.
The book is divided into three parts. Part one is equality. In that three chapters are included. The first one is Sex Discrimination: Anuj Garg and the Anti- Stereotyping Principle. In the beginning of the each section, Important reference articles are given briefly. Chapter two is Equality before law: Naz Foundation and equal moral membership. And the chapter three is Equality of opportunity: N.M. Thomas, group subordination, and the Directive Principles. The cases and all the articles and sections of the laws are described accurately and it’s explained such a way that a normal person like me who doesn’t understand terminologies of laws and constitutional can easily understand. The references and judgements of different cases and states that are relevant are also mentioned.
Part two is Fraternity. In that fourth chapter is Civil Rights: Indian medical association and horizontal discrimination. Fifth chapter is Religious Freedom and Group Identity: Saifuddin and Anti- Exclusion Principle. And the chapter six is the Freedom to work: Peoples union for democratic rights and forced labour. As I stated before, the author was also professionally involved with four of the cases discussed in the book that are the constitutional challenge to section 377 of the IPC. Another one is right to privacy case, the bail applications of Kabir Kala Manch before the Supreme Court and the constitutional challenge to Aadhaar. I have read very superficially regarding all those cases while preparing for competitive exams but I really enjoyed “learning” about it in this details.
Part three of the book is Liberty. The third chapter of the book is Privacy beyond the Public/Private Divide: Sareetha And Freedom within the family. Chapter eight is Speech, Association, Personal liberty and the state of exception: Jyoti Chorge v. State of Maharashtra and the last chapter is Privacy and Criminal Process: Selvi v. State of Karnataka. We have seen many cases as headlines recently like the Supreme Court’s judgements in adultery, and the section 377 challenge and very famous Sabarimala temple entry case. Those judgements were delivered after the author finished writing the book so there was no time to integrate them but he have instead addressed them in brief postscripts to each chapters.
There were many questions and comments were popping around my mind when I picked up this book and read the introduction but now I feel to inferior considering subject knowledge so I have kept reviews to the point and only mentioned components of the book only. But overall I can conclude that to write such non fiction book, the detail study of subjects and all the cases is required and the author has done pretty good job. The author has explained everything in such a way that common people can understand easily. Written in simple and easily understandable language so that everyone can enjoy it. Terminologies are well explained. References of articles and sections are also provided that are relevant. Overall good one. I recommend this to everyone. Must read for non fiction lovers and who all are preparing for competitive examinations.
January 17, 2020
Happened to be my first book of 2020 - "The Transformative Constitution" is a brilliant book by Gautam Bhatia (an expert in Constitutional Law) which touches upon the Part III of the Constitution of India - majorly the fundamental rights chapters. However, this book is very different in its approach in how it introduces Law and the Constitution of India to even a novice or someone who has no expertise or exposure to law.
Bhatia divides his book into majorly three sections - equality, liberty and fraternity. And each of these chapters have three 'case studies' or as he calls them "Acts" on the relevant "promises" that have come to define the social fabric or idea of India post-Independence through the Constitution of India.
In each of the chapters of this book, Bhatia engages with the varied definitions of the words such as "liberty"/"equality" and philosophically taking you through different possible ways of looking at each of them. All of these through real cases that had come up before our courts - some of which have been overturned and some resurrected back again. It also goes on to answer more important questions on how and why the individual has been placed at the forefront of our Constitution and not groups (religious or otherwise) or even the State. He also talks about two different approaches to the Constitution interpretation: Static (very conservative) vs Living Tree (very expansive) and that the correct way should be neither of them but what he calls Transformative Constitutionalism which he argues is the most accurate also explaining why - It is faithful to the text, structure and history, and above all to its overarching commitment to political and social transformation.
A theme that he follows in each of these case studies is -
a. Talks about a case that came up before the court at some point in historical past
b. Textual interpretation of what the Constitution's articles have to say about this.
c. Going back into history to see the same or similar social reform battles that existed and whose roots lied in movements within our very own country pre-Independence and not in some 'foreign elements'.
d. Going through the Constituent Assembly debates and attempting to explain why such an Article found place in the Fundamental Rights chapter of our constitution and what wordings were carefully chosen while also making a comparative analysis with other Constitutions. He also distinguishes by explaining why the choices made were relevant in the context that India found itself in during independence, being forward-looking and also being very wary of State excesses.
e. Tying all of the above discussion he shows the transformative vision that the Constitution promises and perhaps the potential of which hasn't been fully realized yet - but to some extent can be seen with the case at hand and explaining why he thinks it is the most accurate interpretation of law.
It also covers several of the current affairs - decriminalisation of homosexuality, adultery, the Aadhaar challenge and the Sabarimala verdict
I would call the book "radical" and I think the author rightfully makes that clear calling it a "Radical Biography in 9 Acts". The author also explains how the economic policy was never a part of the Constitution but enough checks and balances were left in order that the country stays committed to equal opportunity, liberty and fraternity. I felt that in some places the author got slightly repetitive or was a drag which could have been avoided. That said, I would highly recommend this book to every Indian citizen.
Bhatia divides his book into majorly three sections - equality, liberty and fraternity. And each of these chapters have three 'case studies' or as he calls them "Acts" on the relevant "promises" that have come to define the social fabric or idea of India post-Independence through the Constitution of India.
In each of the chapters of this book, Bhatia engages with the varied definitions of the words such as "liberty"/"equality" and philosophically taking you through different possible ways of looking at each of them. All of these through real cases that had come up before our courts - some of which have been overturned and some resurrected back again. It also goes on to answer more important questions on how and why the individual has been placed at the forefront of our Constitution and not groups (religious or otherwise) or even the State. He also talks about two different approaches to the Constitution interpretation: Static (very conservative) vs Living Tree (very expansive) and that the correct way should be neither of them but what he calls Transformative Constitutionalism which he argues is the most accurate also explaining why - It is faithful to the text, structure and history, and above all to its overarching commitment to political and social transformation.
A theme that he follows in each of these case studies is -
a. Talks about a case that came up before the court at some point in historical past
b. Textual interpretation of what the Constitution's articles have to say about this.
c. Going back into history to see the same or similar social reform battles that existed and whose roots lied in movements within our very own country pre-Independence and not in some 'foreign elements'.
d. Going through the Constituent Assembly debates and attempting to explain why such an Article found place in the Fundamental Rights chapter of our constitution and what wordings were carefully chosen while also making a comparative analysis with other Constitutions. He also distinguishes by explaining why the choices made were relevant in the context that India found itself in during independence, being forward-looking and also being very wary of State excesses.
e. Tying all of the above discussion he shows the transformative vision that the Constitution promises and perhaps the potential of which hasn't been fully realized yet - but to some extent can be seen with the case at hand and explaining why he thinks it is the most accurate interpretation of law.
It also covers several of the current affairs - decriminalisation of homosexuality, adultery, the Aadhaar challenge and the Sabarimala verdict
I would call the book "radical" and I think the author rightfully makes that clear calling it a "Radical Biography in 9 Acts". The author also explains how the economic policy was never a part of the Constitution but enough checks and balances were left in order that the country stays committed to equal opportunity, liberty and fraternity. I felt that in some places the author got slightly repetitive or was a drag which could have been avoided. That said, I would highly recommend this book to every Indian citizen.
September 19, 2025
Actual rating - 4.5 stars
NPS - 10 (Promoter)
…(the) radical insight is that it is the moral orphans among us-despised by society and at the mercy of the State-who, far from being dispensable, stand most in need of constitutional sanctuary. Until that insight percolates through the rest of our criminal law, our Constitution's transformative potential will remain unrealized.
It took me 2.5 months to finish this book, and all for a good cause.
I started reading this after completing Shashi Tharoor’s latest book - The Living Constitution; and this didn’t disappoint.
The three pillars of the Indian Constitution- Equality, Fraternity and Liberty are deeply investigated through various HC & SC trials, successful and unsuccessful ones to explore the transformative nature of the Indian Constitution.
The book is a treasure trove of legal information and a must read if you are interested in law.
The only reason I’ve cut the 0.5 stars is because the text is academic in nature which doesn’t make it accessible.
NPS - 10 (Promoter)
…(the) radical insight is that it is the moral orphans among us-despised by society and at the mercy of the State-who, far from being dispensable, stand most in need of constitutional sanctuary. Until that insight percolates through the rest of our criminal law, our Constitution's transformative potential will remain unrealized.
It took me 2.5 months to finish this book, and all for a good cause.
I started reading this after completing Shashi Tharoor’s latest book - The Living Constitution; and this didn’t disappoint.
The three pillars of the Indian Constitution- Equality, Fraternity and Liberty are deeply investigated through various HC & SC trials, successful and unsuccessful ones to explore the transformative nature of the Indian Constitution.
The book is a treasure trove of legal information and a must read if you are interested in law.
The only reason I’ve cut the 0.5 stars is because the text is academic in nature which doesn’t make it accessible.
April 4, 2019
An important piece of scholarship, at a crucial juncture in Indian constitutional jurisprudence.
The Supreme Court has been in the news with several controversial judgments - dealing with adultery, LGBT rights, Aadhaar, Sabarimala Temple Entry - among various other determinations of rights. In determining the bounds of constitutional rights, there are several approaches - of which transformative constitutionalism is but one approach, and the one that the author advocates for in this book.
Dealing with 9 crucial judgments which advanced this reading of the constitution, the author takes us through the constitutional values of liberty, equality and fraternity as protected by the constitution, and how it envisions the transformation of relations between the state, society and citizens, in all their permutations.
Gautam argues with a lot of precision, avoiding jargon and long winded arguments. The book is a dense but insightful read, and also throws light at the rich discourse of civil rights and liberation movements that guided the makers of the constitution and the Indian republic. I really appreciated how he ties in struggles for labour rights, and feminist and anti-caste movements into the constitutional framework.
The footnotes also are a treasure trove of interesting books and essays. All in all, a strongly recommended read.
The Supreme Court has been in the news with several controversial judgments - dealing with adultery, LGBT rights, Aadhaar, Sabarimala Temple Entry - among various other determinations of rights. In determining the bounds of constitutional rights, there are several approaches - of which transformative constitutionalism is but one approach, and the one that the author advocates for in this book.
Dealing with 9 crucial judgments which advanced this reading of the constitution, the author takes us through the constitutional values of liberty, equality and fraternity as protected by the constitution, and how it envisions the transformation of relations between the state, society and citizens, in all their permutations.
Gautam argues with a lot of precision, avoiding jargon and long winded arguments. The book is a dense but insightful read, and also throws light at the rich discourse of civil rights and liberation movements that guided the makers of the constitution and the Indian republic. I really appreciated how he ties in struggles for labour rights, and feminist and anti-caste movements into the constitutional framework.
The footnotes also are a treasure trove of interesting books and essays. All in all, a strongly recommended read.
June 22, 2020
What an inspiring journey this was! Absolutely brilliant book.
The analytical framework used by the author is beautiful and invites you to consider depth and richness of those "dry" Supreme Court cases.
The outline and arrangement of chapters is perfect.
Moreover, the narrative and logic as to how Constitution is a radical document and how the Supreme Court ended up interpreting it makes you appreciate the intellect of framers of Constitution.
Chapter 4 'Civil Rights: Indian Medical Association and Horizontal Discrimination' and Chapter 6 'The Freedom to Work: Peoples Union for Democratic Rights and Forced Labour' are par excellence. Meaning of shops and begar will never be the same for you after reading both these chapters.
It changed my perception and helped me widen my horizons.
The analytical framework used by the author is beautiful and invites you to consider depth and richness of those "dry" Supreme Court cases.
The outline and arrangement of chapters is perfect.
Moreover, the narrative and logic as to how Constitution is a radical document and how the Supreme Court ended up interpreting it makes you appreciate the intellect of framers of Constitution.
Chapter 4 'Civil Rights: Indian Medical Association and Horizontal Discrimination' and Chapter 6 'The Freedom to Work: Peoples Union for Democratic Rights and Forced Labour' are par excellence. Meaning of shops and begar will never be the same for you after reading both these chapters.
It changed my perception and helped me widen my horizons.
January 21, 2020
An important book that deals with some of the most critical constitutional issues of our times like LGBTQ rights, religious freedom, preventive laws, etc. This book reignited my interest in constitutional law after having graduated from law school where I primarily focussed on commercial laws. It reinforces the belief that the Indian Constitution was always meant to improve the lives of its marginalized citizens and has a unique mix of presenting perspectives from the past, foreign jurisdictions and the current context. The footnotes mentioned throughout the book are an added resource for anyone interest in comparative constitutional law.
May 15, 2019
I have picked this book from New Delhi Airport with a simple quest to know about making and transformative nature of our constitution. I found it a good book connecting the dots in its making. Find it pleasing to read.
Nevertheless, I found it heavy for the reader who has no or little background of law or similar topics. To understand some of the words, It took me some time to understand, however, again it is a learning opportunity. Is not it!
Nevertheless, I found it heavy for the reader who has no or little background of law or similar topics. To understand some of the words, It took me some time to understand, however, again it is a learning opportunity. Is not it!
August 12, 2021
There is no way this can be given anything other than a 5 star rating – for the clarity of writing, the wealth of research and thought it embodies, the structure, the many ideas and more. There’s a superb introductory and concluding essay setting the context for the book and looking at the challenges ahead. Yes, it is an academic read but an inspiring one – non lawyers should read it too certainly, most people know almost nothing about their constitution or their fundamental rights.
But all that apart, how does one absorb this book in India today? It increasingly seems astonishing that we have the constitution we do and the book is a necessary reminder (if it still matters) of what we have and what is possible.
But all that apart, how does one absorb this book in India today? It increasingly seems astonishing that we have the constitution we do and the book is a necessary reminder (if it still matters) of what we have and what is possible.
June 17, 2019
An extremely well written and researched book, this is a must read for lawyers as well as judges. The author traverses through lesser known judgments (of High Courts) and dissents (of Supreme Court as well as High Courts), brilliant judgments lost in the pages of history and analyses legal and surrounding circumstances to make a beautiful thread of arguments which challenge the currently existing positions in legal regimes. His idea of our Constitution is that of transformation- the act of giving ourselves this Constitution makes a clean break with our past status as "subjects", and recognises "citizens" of India with inalienable rights. The author traces jurisprudential history, and singles out "transformative" judgments and celebrates their spirit, while calling for action by the judiciary for giving full effect to the rights guaranteed by our Constitution. There are some fantastic interpretations he adds to the already transformative judgments, which make this book as one of my favourite reads.
September 21, 2020
I think I learned more through this book than I have learned through formal legal education of 2 years..
June 26, 2020
"I feel that the Constitution is workable; it is flexible and it is strong enough to hold the country together both in peace time and in war time. Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile."
These were the conclusion remarks of Dr. B.R. Ambedkar when he submitted the draft constitution with 315 articles and 8 schedules to the constituent assembly in 1948. The constitution of India may be liberal on its outlook, but it was only through series of amendments and verdicts on many occasions, it proved to be yielding definite justice. The first ever constitutional amendment which was due to the infamous case of Champakam Durairajan vs State of Madras where a sub clause was added to the Article 15 proved that the constitution can serve its purpose to build a egalitarian if not Utopian Indian society if necessary alterations can be brought over the time without changing the basic tenets of the constitution. From there, the constitution of India has seen 104 amendments in the 70 years of independence. The author had cherry picked nine such cases which lead to crucial constitutional amendments, by dividing the book into three parts which make the constitutional triad viz. liberty, equality and fraternity.
One such case was criminalizing same sex indulgence between consenting adults in private or what was popularly known as the 'sodomy law' under article 377 which was slashed down by the supreme court in 2009. The Naz Foundation vs Union of India, 2009 is one of many cases in which the supreme court held both the constitutional morality as well as the rational scrutiny. The author did a sterling work in presenting the chronology of the case making it gripping for the reader to understand why the public morality is ever changing and is different from the immutable constitutional morality which is based on equality and liberty.
The much controversial topic of freedom of speech is well discussed in this book on when and where should we draw a line before the free speech hit the extremity with a very recent case of Shreya Singhal vs Union of India, 2015 when Justice Rohinton Fali Nariman marshalled half a century legal precedent to hold that the constitution's free speech guarantee allowed advocacy of repugnant or even revolutionary ideas, only permitting the state to penalize the speech if it constituted 'incitement to violence'.
Another case discussed under the liberty was the case of Sareetha vs Venkata Subbaiah 1983, which ended in slashing of section 9 of Hindu marriage act which compelled the wife to cohabit with her spouse in case of if the she withdraws from the marriage without reasonable excuse. However, when Sareetha declined and argued that the section 9 of Hindu marriage act violates her fundamental right to liberty and privacy, the court observed that "The right to liberty belong to an individual and it is not lost by marital association". This landmark judgement further enhanced the transformative nature of the constitution which valued liberty at its core.
The nine cases discussed here contains lot of footnotes and come as a product of careful reading of the constitution. Whenever there is a unsolvable judicial conflict, the lawyers refer the constitutional debates because it serves valuable insights on how the various provisions of constitutions were chiseled. Likewise, all the nine cases discussed here were referred back to constitutional debates of late 1940s which makes it even more clear that the constitution of India was drafted with a vision and foresight from the founding fathers who envisioned their country to be progressive.
These were the conclusion remarks of Dr. B.R. Ambedkar when he submitted the draft constitution with 315 articles and 8 schedules to the constituent assembly in 1948. The constitution of India may be liberal on its outlook, but it was only through series of amendments and verdicts on many occasions, it proved to be yielding definite justice. The first ever constitutional amendment which was due to the infamous case of Champakam Durairajan vs State of Madras where a sub clause was added to the Article 15 proved that the constitution can serve its purpose to build a egalitarian if not Utopian Indian society if necessary alterations can be brought over the time without changing the basic tenets of the constitution. From there, the constitution of India has seen 104 amendments in the 70 years of independence. The author had cherry picked nine such cases which lead to crucial constitutional amendments, by dividing the book into three parts which make the constitutional triad viz. liberty, equality and fraternity.
One such case was criminalizing same sex indulgence between consenting adults in private or what was popularly known as the 'sodomy law' under article 377 which was slashed down by the supreme court in 2009. The Naz Foundation vs Union of India, 2009 is one of many cases in which the supreme court held both the constitutional morality as well as the rational scrutiny. The author did a sterling work in presenting the chronology of the case making it gripping for the reader to understand why the public morality is ever changing and is different from the immutable constitutional morality which is based on equality and liberty.
The much controversial topic of freedom of speech is well discussed in this book on when and where should we draw a line before the free speech hit the extremity with a very recent case of Shreya Singhal vs Union of India, 2015 when Justice Rohinton Fali Nariman marshalled half a century legal precedent to hold that the constitution's free speech guarantee allowed advocacy of repugnant or even revolutionary ideas, only permitting the state to penalize the speech if it constituted 'incitement to violence'.
Another case discussed under the liberty was the case of Sareetha vs Venkata Subbaiah 1983, which ended in slashing of section 9 of Hindu marriage act which compelled the wife to cohabit with her spouse in case of if the she withdraws from the marriage without reasonable excuse. However, when Sareetha declined and argued that the section 9 of Hindu marriage act violates her fundamental right to liberty and privacy, the court observed that "The right to liberty belong to an individual and it is not lost by marital association". This landmark judgement further enhanced the transformative nature of the constitution which valued liberty at its core.
The nine cases discussed here contains lot of footnotes and come as a product of careful reading of the constitution. Whenever there is a unsolvable judicial conflict, the lawyers refer the constitutional debates because it serves valuable insights on how the various provisions of constitutions were chiseled. Likewise, all the nine cases discussed here were referred back to constitutional debates of late 1940s which makes it even more clear that the constitution of India was drafted with a vision and foresight from the founding fathers who envisioned their country to be progressive.
January 2, 2024
I had always understood the well-worn adage ‘the law is an ass’ to mean that court pronouncements are often silly and bereft of common sense. But, reading this book with all its intricate detail of cases and legal interpretations, the hair-splitting over semantics and intents, and the sheer volume of legalese that courts have to wade through (almost a third of the book is devoted to explanatory notes and index!) it occurs to me that there could be an alternate interpretation to the adage too, the ‘ass’ referring to a ‘beast of burden’! (Of course, the book has enough examples of court orders that could justify the first interpretation too!)
Bhatia presents a cogently argued case in this wonderful book about how the Constitution can be transformative instead of merely a static set of rules, keeping pace with the changing society and its mores and values, through insightful and visionary verdicts of courts. He takes up just the three foundational values enshrined in the Constitution – Equality, Fraternity and Liberty – and their interplay and ramifications on several other sections, through an analysis of nine landmark cases. His message is that when the Constitution came into effect in 1950, it was not just replacing an older colonial constitution, but it was transformational in two fundamental ways – it not only made subjects into citizens, but it also sought to reconstruct state and society itself through specific provisions which addressed our unique challenges.
How the courts interpret Constitutional provisions seems highly dependent on individual perspectives of the judges and their imagination. Not exactly cheerful news for those of us who believed the implacable word of the law was sound protection. But it also points to how much more clarity is required in media reporting on cases, and how the nuances of the Constitution need to be more widely debated beyond the legal fraternity. In discussing the Aadhaar case and the Common Cause Euthanasia case of 2018, Bhatia moots the need for Liberty to include a ‘right to technological self-determination’. I loved that!
Bhatia presents a cogently argued case in this wonderful book about how the Constitution can be transformative instead of merely a static set of rules, keeping pace with the changing society and its mores and values, through insightful and visionary verdicts of courts. He takes up just the three foundational values enshrined in the Constitution – Equality, Fraternity and Liberty – and their interplay and ramifications on several other sections, through an analysis of nine landmark cases. His message is that when the Constitution came into effect in 1950, it was not just replacing an older colonial constitution, but it was transformational in two fundamental ways – it not only made subjects into citizens, but it also sought to reconstruct state and society itself through specific provisions which addressed our unique challenges.
How the courts interpret Constitutional provisions seems highly dependent on individual perspectives of the judges and their imagination. Not exactly cheerful news for those of us who believed the implacable word of the law was sound protection. But it also points to how much more clarity is required in media reporting on cases, and how the nuances of the Constitution need to be more widely debated beyond the legal fraternity. In discussing the Aadhaar case and the Common Cause Euthanasia case of 2018, Bhatia moots the need for Liberty to include a ‘right to technological self-determination’. I loved that!
October 26, 2020
This book argues that the Indian constitution has a transformative character. Not only does it transform the relationship between the individual and the State (like the American constitution), but it also seeks to restructure society itself. The members of the Constituent assembly acknowledged that the State was not the only institution that held concentrated power.
The author makes this argument by articulating the meaning of the principles of Liberty, Equality, and Fraternity through judgments in Indian courts along with their historical context.
The two things that I really liked about this book:
1. The chapters on privacy. As a computer science student, a lot of what I've been taught was about the development of technology and not so much about the social context of that technology. This book explains how privacy has been defined in the Indian context. It also analyses how the definition of privacy affects and is affected by technology and power structures.
2. The choice of quotes. My favorite ones are by KG Kannabiran (from his book, The Wages of Impunity) -
"A constitution framed after a liberation struggle or a struggle for independence is like poetry, emotion recollected in tranquillity",
by BR Ambedkar (from his closing speech to the Constituent assembly) -
"Political democracy cannot last unless there lies at the base of it social democracy."
Highly recommended.
The author makes this argument by articulating the meaning of the principles of Liberty, Equality, and Fraternity through judgments in Indian courts along with their historical context.
The two things that I really liked about this book:
1. The chapters on privacy. As a computer science student, a lot of what I've been taught was about the development of technology and not so much about the social context of that technology. This book explains how privacy has been defined in the Indian context. It also analyses how the definition of privacy affects and is affected by technology and power structures.
2. The choice of quotes. My favorite ones are by KG Kannabiran (from his book, The Wages of Impunity) -
"A constitution framed after a liberation struggle or a struggle for independence is like poetry, emotion recollected in tranquillity",
by BR Ambedkar (from his closing speech to the Constituent assembly) -
"Political democracy cannot last unless there lies at the base of it social democracy."
Highly recommended.
April 25, 2022
A serious and magnificent book which given us ample information of how our constitution is transforming not just on political arena but also from the social arena, that is based on the trinity of the democratic political framework: Liberty, Equality, Fraternity.
Gautam Bhatia makes stronger arguments on these three core principles taking nine cases respectively on:
Liberty: Sex Discrimination, Equality before law, Equality of opportunity,
Equality: Civil Rights, Religious Freedom and Group Identity, Freedom to work,
Fraternity: Privacy beyond the Public/Private Divide, Speech, Association, Personal liberty and the state of exception, Privacy and Criminal Process
This is my first attempt to read something on legal literature and I don’t regret reading this book.
As I mentioned earlier, Mr. Gautam Bhatia put forward his arguments which can be easily consumed by not juts the person who is legal domain but also for layman, however with my lack of knowledge at time I felt topics little dry, but I still feel the time which I spend it worthwhile, and I recommend this book to fellow citizens.
Looking to have re-read in near future with a slower phase.
Gautam Bhatia makes stronger arguments on these three core principles taking nine cases respectively on:
Liberty: Sex Discrimination, Equality before law, Equality of opportunity,
Equality: Civil Rights, Religious Freedom and Group Identity, Freedom to work,
Fraternity: Privacy beyond the Public/Private Divide, Speech, Association, Personal liberty and the state of exception, Privacy and Criminal Process
This is my first attempt to read something on legal literature and I don’t regret reading this book.
As I mentioned earlier, Mr. Gautam Bhatia put forward his arguments which can be easily consumed by not juts the person who is legal domain but also for layman, however with my lack of knowledge at time I felt topics little dry, but I still feel the time which I spend it worthwhile, and I recommend this book to fellow citizens.
Looking to have re-read in near future with a slower phase.
May 17, 2019
The contemporary story of the Supreme Court read against the grain, the alternative canon reassuring us that, in the waiting-room of history, to ‘set alight the sparks if hope in the past’ is always a possible dream. Perhaps the history of transformative constitutionalism in India tells us that it has ever been thus.
The book gives a lucid vision of the Transformative Constitutionalism in India. Since Transformative Constitutionalism can only be understood from the point of view of making the wrongs right, i.e., there has to be a betrayal to which the need to overcome is pressing. Gautam gives a radical and exhaustive references from History, Constituent Assembly Debates and uses it to justify the interpretation given out by the Courts to progress towards an egalitarian society. There are also Cross References to other Constitutions in the world with special mention to US. Anymore description will amount to spoilers so read it for yourself, it’s a must read for Constitutional enthusiasts.
The book gives a lucid vision of the Transformative Constitutionalism in India. Since Transformative Constitutionalism can only be understood from the point of view of making the wrongs right, i.e., there has to be a betrayal to which the need to overcome is pressing. Gautam gives a radical and exhaustive references from History, Constituent Assembly Debates and uses it to justify the interpretation given out by the Courts to progress towards an egalitarian society. There are also Cross References to other Constitutions in the world with special mention to US. Anymore description will amount to spoilers so read it for yourself, it’s a must read for Constitutional enthusiasts.
January 17, 2023
Great topic letdown by cumbersome prose
Im not a lawyer or a law student. I find the topic extremely interesting and managed to read close to 40% of the book before i gave up. It takes several reads of a single page to even process what has been written.
I sincerely believe that the editors could have taken the effort to make the book accessible to the common man. In failing to do so, they have made the topic inaaccessible to a large number of people. I see a lot of 5 star reviews and I feel maybe everyone else is closer to the subject than I'am. Maybe I'm an outlier. But I give up half way after really trying and in pain that it just takes too much effort to even read what could have been easily written using simpler language. Its just too cumbersome.1 .
Im not a lawyer or a law student. I find the topic extremely interesting and managed to read close to 40% of the book before i gave up. It takes several reads of a single page to even process what has been written.
I sincerely believe that the editors could have taken the effort to make the book accessible to the common man. In failing to do so, they have made the topic inaaccessible to a large number of people. I see a lot of 5 star reviews and I feel maybe everyone else is closer to the subject than I'am. Maybe I'm an outlier. But I give up half way after really trying and in pain that it just takes too much effort to even read what could have been easily written using simpler language. Its just too cumbersome.1 .
April 10, 2020
The book is a crisp compendium of a million points of view condensed to help understand the significance of 9 judgements that have redefined and remoulded the Indian Constitution. The book has inputs from Constitutional Assembly Debates, cross referencing other judgements, even from other countries. It's an excellent piece of accessible scholarship. Read it if Constitutionalism and Constitutional Philosophy, specifically of the Indian Constitution, is your cuppa.
March 30, 2019
Thank you for writing this book, Gautam. Learnt a lot about our Constitution. Best wishes always.
May 31, 2019
This book gives us a new perspective to interpret constitution. Along with that it contains principles of constitutional morality, which is interesting read.
November 10, 2019
Fascinating read. I have compiled several interesting quotations, sources as well as a few reflections from the book here. https://threadreaderapp.com/thread/11...
October 2, 2022
A beautiful analysis of Indian constitutional precepts. 101 recommend for every law student 💯
June 21, 2019
Gautam Bhatia is probably one of the sharpest brains in the country, and this tome is truly one of the most well-researched, well-thought out pieces of analysis of the Indian Constitution. Bhatia goes into immense detail about various provisions, and doesn't attempt to dumb down anything, while simultaneously making it simple enough for the (relatively) lay reader. I wouldn't recommend this book to a complete layman, but it's a must-read for anyone with an established base of knowledge on the Indian Constitution.
January 2, 2020
Gautam Bhatia argues that the Constitution of India is transformative in character. The book can be placed within his broader work on constitutional philosophy as expressed in his popular blog and other writings. If you are generally interested in law, read it for fun. If you are a student of law, READ IT.
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