Book Review - Unsealed Covers - A Decade Of The Constitution,The Courts And The State By Gautam Bhatia

Dr.Prema E & Ragul OV

6 Oct 2023 8:52 AM GMT

  • Book Review - Unsealed Covers - A Decade Of The Constitution,The Courts And The State By Gautam Bhatia

    In the realm of Constitutional Jurisprudence, there are moments when a new book emerges, promising to quench the thirst of eager aspirants and enthusiasts alike. One such moment has arrived with the release of Gautam Bhatia's eagerly awaited masterpiece, "Unsealed Covers." So, without further ado, let us embark on a journey into the heart of this book, unveiling the...

    In the realm of Constitutional Jurisprudence, there are moments when a new book emerges, promising to quench the thirst of eager aspirants and enthusiasts alike. One such moment has arrived with the release of Gautam Bhatia's eagerly awaited masterpiece, "Unsealed Covers." So, without further ado, let us embark on a journey into the heart of this book, unveiling the author's profound insights and unravelling the intricate layers that make "Unsealed Covers" a true masterpiece.

    Author’s take on the verdicts of the Supreme Court and various High Courts

    While analyzing Unlawful Activities (Prevention) Act, 1967 cases in the past decade, the author highlights the potential for a miscarriage of justice when both the law and facts are manipulated to establish a prima facie case. This manipulation can result in the incarceration of individuals, even in challenging situations such as a pandemic. The author underscores the grave consequences of this approach, which may lead to a erosion of civil liberties and the risk of thought-crimes. What sets this chapter apart is its focus on the fundamental difference between states of exception and states of normalcy. It emphasizes that the UAPA should only be invoked in exceptional circumstances, rather than being used as a replacement for ordinary penal law. It underscores the necessity for a strict and narrow interpretation of the UAPA's definitional clauses, stressing that mere discussions and advocacy should not be conflated with incitement or conspiracy to commit an offense. Furthermore, the author highlights the significance of individualized, factual, and specific allegations to establish a prima facie case under the UAPA. This offers a valuable framework for courts to strike a balance between legal rigor and constitutional obligations.

    Within constitutional law, the Puttaswamy verdict resembles a symphony of freedom, where each of its nine judges contributes a unique note to the melody of privacy rights. Just as a great musical composition leaves a lasting impression, the resonance of Puttaswamy will guide the nation for years to come in navigating the intricate dance between privacy and the State in the digital age.

    According to the author, this marks a significant moment in Indian legal history as the Supreme Court rectified past errors and embraced the principles of constitutional morality and transformative constitutionalism. The emphasis on constitutional morality and the rejection of discrimination based on 'intrinsic or core' traits establish a progressive precedent for future cases. This addresses the tension between group autonomy, equality, and non-discrimination within religious practices.

    The foundation of the judgment relies on a series of factual assumptions, notably the belief in the 'unparalleled' uniqueness of Aadhaar biometric authentication. This assumption is pivotal in upholding the constitutionality of Aadhaar against various challenges. However, the author questions the accuracy of this foundational assumption, pointing out contrary evidence and suggesting a lack of rigorous scrutiny.

    The judgment balances these concerns against the supposed benefits of Aadhaar, such as targeted subsidy delivery and reduced corruption. The reasoning in the judgment occasionally shifts between 'clash of rights' and 'larger public interest,' leading to conceptual inconsistencies. The author criticizes the court's reliance on evidence like a 'PowerPoint presentation' and highlights the selective application of the 'disputed questions of fact' principle, suggesting a convenience-based approach to constitutionalism.

    Ultimately, according to the author, the legacy of the Aadhaar judgment rests on its reliance on unverified factual assumptions and its tendency to overlook opposing viewpoints.

    In discussing the Marital rape case, the author delves into Justice Shakhder's viewpoint, which champions the importance of consent both within and outside of marriage. This aligns with contemporary ideals of equality and individual autonomy. The author's argument underscores that the Marital Rape Exception creates an unfair distinction, where coerced sex within marriage is treated differently from the same act outside of it.

    In contrast, the author elucidates Justice Hari Shankar's stance, which centers on the concept of a "legitimate expectation of sex" within marriage. He argues that the institution of marriage inherently carries this expectation, setting it apart from other relationships. However, the author subjects this notion to critical examination, highlighting its questionable logical basis and its potential to undermine the significance of consent.

    The author concludes by firmly supporting Justice Shakhder'sperspective, asserting that Indian constitutional law, as of 2022, does not endorse diminishing sexual consent based on marital status.

    In the Hijab case, the author portrays Justice Gupta's judgment as a world characterized by strictness, where the uniform stands as the ultimate symbol of discipline and authority. It's a domain where conformity is demanded by those in power, and diversity is suppressed in the name of uniformity. In this realm, the courtroom feels like a place where students are perceived as blank slates meant to conform to a single predefined mould.

    In contrast, when discussing Justice Dhulia's judgment, the author presents it as a haven of freedom and diversity. It celebrates individual agency and values the harmonious interplay of multiple voices, much like an orchestra. Here, the classroom is viewed as a realm of liberation rather than control, portraying students as independent thinkers capable of making choices aligned with their beliefs.

    In this case, the author refrains from providing commentary, leaving the decision in the hands of the Chief Justice of India.

    In the Maratha reservation case, the author observes a shift in how Article 16(4) is perceived. Initially seen as an exception to Article 16(1), it is now regarded as an illustration of substantive equality, signifying a progressive interpretation of the Constitution. The author advocates for an understanding of Article 16(4) that recognizes both the State's authority and responsibility in ensuring substantive equality. This includes the necessity of collecting data to make informed decisions regarding reservations.

    The author offers criticism of the judgment, with a particular focus on the 50 percent cap on reservations and the concept of equality. The author questions whether a fixed percentage can effectively address the intricate issues of discrimination and social disadvantage. Furthermore, the author highlights the misinterpretation of Dr. B.R. Ambedkar's speech, underscoring the significance of interpreting the Constitution based on its text and principles rather than relying on individual speeches or intent.

    In the Mohd Ahmed vs Union of India case, the author commends the judgments for connecting the right to health with intellectual property issues. This action opens up numerous possibilities, serving as the starting point for a more extensive conversation about how human rights, particularly the right to health, should shape the boundaries of intellectual property, particularly concerning access to essential medicines. It reinforces the global trend of prioritizingindividual well-being over corporate interests within the realm of intellectual property.

    Fundamentally, the Delhi High Court identified the distinction between those importing oxygen concentrators for Covid relief through government-approved channels (exempt from IGST) and those receiving them as personal gifts (subject to IGST) as arbitrary and irrational. The author lauds this as a significant stride toward safeguarding socio-economic rights.

    The author also acknowledges a Delhi High Court case, specifically Ajay Maken&ors Vs. Union of India &Ors, in which it was determined that the Railways had neglected their duty to assess residents' eligibility for rehabilitation before carrying out evictions, as stipulated by the law. Significantly, Justices S.Muralidhar and Vibhu Bakhru shed light on the meaning of the 'right to housing' in India. Given the absence of an explicit constitutional right to housing, the court underscores the significance of procedural responsibilities. It mandates "meaningful engagement" with residents before any eviction and insists on rehabilitation when required by law or policy. Remarkably, the court introduces the notion of the 'right to the city,' drawing inspiration from international scholars specializing in urban spaces.

    When examining cases involving the demolition of homes belonging to protesting individuals, the author notes that once an unconstitutional situation is identified, the remedy may involve a structural injunction or continuing mandamus. These legal tools enable the issuance of interim orders and the ongoing monitoring of compliance, extending beyond individual cases to rectify the broader unconstitutional situation. The author presents an innovative approach to tackle recurring home demolitions in India and emphasizesthe importance of recognizing the systemic nature of rights violations in such instances.

    The author also critiques the Supreme Court's apparent reluctance to address this clear violation of the rule of law, despite its historical ability to transform postcards into Public Interest Litigations (PILs) and employ Article 142 for the sake of complete justice.

    The author expresses concerns regarding the judiciary's interpretation of international law principles, specifically non-refoulement and the separation of powers, within the context of the Rohingya Refugees case. When discussing this case, the government's proposal to conditionally release detainees who have been held for over five years in detention centers faces opposition from the court, as it is seen as endorsing an 'illegality' by not deporting the detainees.

    The author contends that there is no legal basis for indefinite detention, and by denying their release, the court effectively sanctions a violation of Article 21. The author scrutinizes the interim order issued by the Supreme Court of India, which permits the deportation of Rohingya refugees to Myanmar. They highlight the court's refusal to allow the UNHRC Special Rapporteur to intervene in the case, which appears contradictory given the court's history of permitting interventions in the pursuit of the "greater interests of justice."

    The author begins by drawing a comparison between the decisive actions taken by the Manipur High Court and the Supreme Court's hesitation in addressing the legal and humanitarian aspects of refugee deportations. They emphasizethe expeditious handling of the case, specifically noting the high court's prompt issuance of an interim order safeguarding the refugees from deportation.

    The author commends the Manipur High Court's refusal to blindly adhere to the Supreme Court's interim orders and underscores the court's reliance on well-established constitutional principles as significant strengths of its judgment. Additionally, the author suggests that the differentiation between "refugees" and "migrants" based on their reasons for leaving their home country may not be strictly necessary and could present issues, particularly in light of the broader understanding of economic hardship as a form of persecution.

    In the context of Article 370, the author presents a bleak portrayal of how the Indian judiciary reacted to the complexities posed by the Kashmir situation. The court departed from the fundamental principles that form the basis of India's constitutional framework, essentially undermining them in its judgment. This verdict, described as more akin to a directive from the home ministry rather than a well-reasoned constitutional judgment, is thoroughly examined and criticized.

    The author also highlights a troubling aspect concerning the legal proceedings related to the communication blackout and restrictions in Kashmir.

    The core issue arises when Solicitor-General Tushar Mehta suggests that national security concerns may justify withholding these orders from the petitioners. This argument faces scrutiny, leading the court to request an affidavit explaining the rationale for asserting such privilege.

    The author critiques this action, identifying it as an alarming extension of the "sealed cover" practice, which has become increasingly common in recent times. The author argues that if citizens are not granted access to the legal orders that restrict their rights, this denial effectively suspends those rights, a measure usually reserved for formal declarations of emergency. The author invokes the infamous ADM Jabalpur case and underscores the court's position that even when citizens cannot directly access the court, their rights still remain intact, albeit without a direct means of enforcement. The author contends that this argument holds no place in 2019, particularly after the landmark Puttaswamy case, which laid to rest the legacy of ADM Jabalpur.

    Regarding the changes introduced to the RTI, the author suggests utilizing judicial review as a means to invalidate the RTI amendments and reinstate the original RTI framework. This action is viewed as essential to safeguard the right to information and prevent it from losing its substantive value.

    The author contends that the formal differentiation between RTI Commissioners and Supreme Court Judges overlooks the essence of the matter. This is because the RTI holds the status of a constitutional statute, and ensuring the independence of information commissioners is pivotal for its effectiveness. The author proposes that the court should recognize these commissioners as fulfilling a valuable function akin to other constitutional positions, thereby emphasizing the equal importance of their independence.

    When addressing one of the powers vested in the Chief Justice of India, known as the 'master of the roster,' the author identifies a concern related to bias, particularly concerning bench compositions and judges' recusals. The author underscores that this issue primarily constitutes an institutional challenge, and the court requires a mechanism to manage conflicts arising from the court's distinctive polyvocal \nature.

    The author outlines the sequence of events leading to an order by a Constitution bench and underscores the conflict between the principle of "no person shall be a judge in his own cause" and the Chief Justice's role as the "master of the roster." The argument posits that the Chief Justice's administrative authority should be delegated to the presiding judge in Courtroom No. 2 when the Chief Justice cannot act due to a conflict of interest. This, the author contends, is essential to prevent the principle of the "master of the roster" from being wielded as a shield against accountability.

    The author expresses concern about the Fourth-Phase Public Interest Litigation, characterizing it as a unique development in the evolution of public interest litigation in the Indian Supreme Court. This phase is seen as an attempt to curtail individual rights, pursue political goals, or bypass established legal procedures.

    The author also scrutinizes the order in the Sabarimala case, which seems to conflate the procedure for reviewing a judgment (Review Jurisdiction under Article 137 of the Indian Constitution) with the procedure for considering new writ petitions that challenge the same judgment. The author raises questions about the reasoning behind combining these two types of cases.

    The author offers criticism of various aspects of the judgment, including what appears to be the establishment of an "anticipatory referral" without clear reasons for doing so. This approach is seen as disregarding precedent and potentially undermining the binding force of legal precedents, which could result in a more fragmented and divided court.

    The author also examines how the pandemic resulted in the issuance of executive decrees by both central and state authorities. This raised concerns regarding the exclusion of legislative bodies from decision-making processes. The author highlights that the frequent utilization of laws like the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897 has restricted parliamentary debates.

    The author commends certain high courts, specifically mentioning the Karnataka and Gujarat High Courts, for their proactive involvement and constructive judicial review. They played a significant role in holding state governments accountable for their actions in response to the pandemic.

    Author’s assessment on the tenure of former Chief Justices of India

    When discussing Former Supreme Court Judge RF Nariman, the author sheds light on a significant event from Nariman's tenure that warrants thorough examination. One such event relates to allegations of sexual harassment against the Chief Justice. The author asserts that the Supreme Court's approach to this case shifted the focus away from the harassment allegations and allowed for a narrative that blamed the victim to emerge.

    The author critiques how this case was handled within the institutional framework of the Supreme Court. They question the ad-hoc nature of the proceedings and the absence of an external member on the committee, which could have helped address power imbalances. The author concludes by emphasizing the existence of an institutional problem within the Supreme Court when it comes to dealing with sexual harassment allegations. They draw parallels to the concept of "institutional racism," suggesting that, even without explicit intent, the institution itself can perpetuate injustices when it fails to address power imbalances.

    The author also explores the impact of Justice A.M. Khanwilkar's legacy. Specific cases, such as the interpretation of Section 43(D)(5) of the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA), come under scrutiny. In these instances, the author critiques Justice Khanwilkar's approach, characterizing it as leaning towards the State at the expense of individual rights. This extends to the perception of rewriting statutes to broaden State authority.

    The author offers criticism of Justice Khanwilkar's judgment that upheld the FCRA amendments, contending that it resulted in NGO regulation in India resembling Russian-style legislation, which constrained the activities of many NGOs. The author underscores a troubling trend in such cases where the State's interests and assertions receive notably lenient treatment, while individuals seeking justice and the protection of their rights encounter significant hurdles.

    The author characterizes this pattern as "judicial rule by decree," where court orders lack transparency and coherent reasoning, often resembling the language and actions of the executive branch.

    The author argues that the approach taken by former Justice Dipak Misra embodies an "outcome-oriented" tradition within the Supreme Court, prioritizing the pursuit of substantive justice, even if it means deviating from established legal constraints. One notable case discussed involves the Cine Costume Make-Up Artists and Hair Dressers Association, where Misra is accused of misinterpreting statutory text to achieve a desired outcome related to gender discrimination. The argument posits that Misra's approach sidestepped legal constraints and relied on selective interpretation of the law.

    In the Devidas Tuljapurkar case, Justice Dipak Misra is criticized for introducing a new standard for adjudicating obscenity claims without a legal basis. The author contends that this move disregarded established legal precedents and introduced an arbitrary standard.

    The author further asserts that Justice Misra's directive to play the national anthem in cinema halls failed to address the fundamental requirement of demonstrating a violation of fundamental rights under Part III of the Constitution. This decision is portrayed as an overreach of judicial authority and constitutional principles.

    The author also cites instances where Misra, as Chief Justice, assumed control over intra-court appeals, leading to procedural irregularities. This paints a picture of Chief Justice Misra navigating the complex legal terrain with a map biased toward his desired destinations, at times ignoring or altering the legal landscape encountered along the way.

    While discussing Justice Ranjan Gogoi's tenure, the primary argument put forth is that during his leadership, the Supreme Court shifted its focus from primarily safeguarding individual rights to aligning more closely with executive decisions. The author points to the NRC (National Register of Citizens) case as the starting point to delve into Chief Justice Gogoi's tenure. It is argued that his extensive involvement in this administrative process blurred the lines between executive and judicial functions, which was particularly concerning due to the fundamental nature of citizenship rights in India.

    The author contends that the Supreme Court's intervention in the NRC process had tangible consequences, including fatalities due to unattainable deadlines and a lack of oversight. This led to a situation where constitutional remedies were effectively blocked off, severely impacting people's rights.

    The author also touches upon issues related to procedural opacity during Chief Justice Gogoi's tenure. Proceedings lacked transparency, affected parties were not given a voice, and decisions were based on sealed covers—a practice criticized as running counter to the fundamental principle of open justice. This approach is seen as undermining democratic accountability, as citizens cannot scrutinize court decisions when evidence is concealed in sealed covers.

    The author further criticizes the former Chief Justice's handling of evidence in the Rafale case. It describes how the Chief Justice summoned air force officials for an "oral" interaction, bypassing established legal procedures like cross-examination. This deviation from the adversarial process, where truth emerges from opposing views and competing evidence, is viewed as undermining a cornerstone of the legal system, suggesting a departure from established legal procedures.

    The author also questions the former Chief Justice's approach to habeas corpus petitions. It highlights the Chief Justice's unusual decision to grant an Indian citizen permission to travel within the country, with the condition of "reporting back" to the court and refraining from engaging in political activities. The author questions the basis for such conditions and suggests that they undermine fundamental rights, including freedom of movement.

    Lastly, the author touches on a judgment regarding the mandatory taking of voice samples during interrogations. It criticizes the Chief Justice for utilizing Article 142 of the Constitution to authorize this procedure without adequate legislative backing, implying that it circumvented established constitutional principles.

    The author expresses apprehensionsand urges a re-evaluation of its function as a vigilant guardian of individual rights against arbitrary state authority.

    The author underscores that Chief Justice Bobde's seventeen-month tenure did not yield any significant constitutional rulings. The author accuses Chief Justice Bobde's tenure of evading judicial responsibility by leaving crucial constitutional cases unresolved, ultimately benefiting the central government by maintaining the status quo. This delay is exemplified in the cases concerning Article 370, EWS reservations, Aadhaar, and others, which seemed to align with the central executive's interests.

    The author points out instances of inconsistency, such as the handling of bail orders for CAA protesters. The Supreme Court, under Bobde's leadership, faces criticism for staying bail orders without providing transparent reasoning for detaining individuals, even after high courts had ordered their release.

    Furthermore, the author highlights instances of perceived inconsistency, especially in the handling of the electoral bonds scheme case, where the court's decisions appeared to favor the government. The author also draws attention to concerns related to the deportation of Rohingya refugees and the court's response to the COVID-19 pandemic.

    This narrative encompasses missed opportunities, evasion, and questionable motives at the highest levels of the judiciary. The author vividly portrays a court that seems to have departed from its conventional role and displayed inconsistency in its actions.

    While discussing Chief Justice N.V. Ramana, the author prominently cites the electoral bonds case as a prime example of judicial evasion, where substantial amounts of money continue to flow into politics without court intervention. The Maharashtra political crisis is also examined, with the author highlighting a vacation bench's swift interim orders that resulted in a change in government. However, once the new government was in place, the urgency to hear the case dissipated, leading to further confusion.

    The author astutely distinguishes two types of disputes: those stemming from fractured election mandates and shifting allegiances, and the more orchestrated 'defections' from ruling parties, which often lead to floor tests and government changes. Constitutional functionaries, particularly governors and Speakers of the Assembly, intended to be impartial, often find themselves embroiled in partisan actions influencing political events.

    Despite having the option to decline hearing the Pegasus case, the court chose to accept it, placing a significant responsibility on the court to safeguard citizens' rights against state surveillance. However, the court failed to hold the state accountable, especially when the government refused to confirm whether Pegasus had been used. The court's subsequent actions, including appointing its committee, are criticized for their lack of transparency and potentially shielding the state from accountability. The author strongly condemns the court's handling of the Pegasus case, alleging a "whitewash." This implies that the court's actions, particularly its refusal to make the committee's report public, hindered citizens from scrutinizing decision bases and impeded accountability.

    In the freebies case, the author highlights the unusual and seemingly misplaced focus of CJI Ramana during his last month in office. It questions the court's jurisdiction in this matter and notes the involvement of a ruling party leader in filing the PIL that initiated the case. While acknowledging a few positive judgments on civil liberties during Ramana's tenure, such as the bail order in Mohammad Zubair's case, the author attributes these decisions to the Chief Justice's assignment of these cases to benches known for pro-liberty rulings. The author critiques an interim order by Ramana's bench that effectively halted sedition prosecutions, emphasizing that it failed to address the underlying constitutional issues and left important questions unresolved.

    While discussing Chief Justice U.U. Lalit's four-month tenure, the author acknowledges that during his brief time in office, Chief Justice Lalit achieved significant administrative reforms within the Supreme Court. These reforms included live-streaming proceedings and reviving dormant cases, resulting in substantial changes in the court's functioning.

    The focal point of discussion is a specific case involving the acquittal of G.N. Saibaba and five others under the UAPA (Unlawful Activities (Prevention) Act), 1967 by the Bombay High Court. The high court's judgment emphasized the importance of upholding procedural safeguards in UAPA cases and resisted state impunity in deploying this draconian law.

    The author highlights the unusual sequence of events where the case was expedited and brought before a special bench on a Saturday. The Supreme Court's suspension of the high court's decision effectively deprived the prisoners of their liberty, despite a reasoned acquittal by a constitutional court.

    Drawing parallels between Chief Justice Lalit's legacy and a scene from Ursula K. Le Guin's novel "The Dispossessed," the author underscores the profound value of a single human spirit's freedom. This comparison implies that despite the administrative accomplishments, Lalit's legacy is tarnished by the handling of the Saibaba case, which raises fundamental questions about justice and liberty.

    The author wraps up by urging a re-examination of the focal point of legal writing. He proposes adopting a critical approach that moves away from excessive court-centric perspectives, emphasizing a greater concentration on the Constitution as a dynamic arena of democracy and power dynamics. This shift is described as an evolving yet imperative undertaking.

    In our perception, "Unsealed Covers" emerges as a literary cannonball, an unapologetic blast on the face of complacency and a resounding slap on the wrist of irregularities within our judicial system. While its focus on the last half-decade may be seen as a limitation, it's clear that the author, Gautam Bhatia, has artfully woven together both criticism and appreciation of judgments during this crucial period. The readers witness an alternate angle on the inner workings of our courts and a deeper understanding of the practical realities they face.

    "Unsealed Covers" doesn't shy away from its role as a platform for reasonable criticisms, serving as a mirror to our legal system's strengths and weaknesses. In the end, it stands as an impressive testament to Gautam Bhatia's commitment to shedding light on the intricacies of justice. As readers close the book, they are left with a fresh perspective, a renewed appreciation for the complexities of our legal world, and the indomitable power of a well-crafted critique.

    Dr.Prema E is an Associate Professor & Assistant Dean at VIT School of Law, Chennai. Ragul O.V is an Advocate at Madras High Court


    Gautam Bhatia. “Unsealed Covers - A Decade of the Constitution, the Courts and the state”. Harpercollins Publishers India (2023).

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