Case by case

Rihan Najib | Updated on: Mar 29, 2019
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Lawyer and researcher Gautam Bhatia on his latest book and what makes the Constitution a fundamentally radical document

It’s hard to take a Zen approach to lawyer Gautam Bhatia’s bio on the dust jacket of his latest book The Transformative Constitution: A Radical Biography in Nine Acts. It provokes the bleak, resigned sigh that habitual overachievers tend to inspire in lesser mortals.


Gautam Bhatia


A Rhodes scholar and one among Forbes India’ s 2018 list of ‘30 Under 30’, Bhatia, as a practising lawyer in the Supreme Court (SC), has been involved with recent landmark judgments such as the reading down of Section 377, the right to privacy, and the Aadhaar cases. His scholarship on constitutional law in India has appeared in numerous peer-reviewed journals and other publications.

During the meeting at a cafe in New Delhi to discuss his new book, Bhatia (30) — dressed casually in a white, round neck T-shirt and black trousers — appears reserved, modest and deadly serious at first. As he moves on to discuss recent SC judgments, he becomes a milder variety of serious.

Born and schooled in Delhi, Bhatia describes being drawn to law entirely by accident. “I grew up in a house where science was very important. My father is a mathematician and I was a science student in school, so I imagined I would specialise in physics or mathematics,” he recalls. But then he came across a friend reading a book on law, a subject that seemed “vaguely interesting” to him.

His mother, a documentary film-maker, encouraged him to take up law. “She pointed out how my interests in literature, history and writing all came together, in a sense, in law, and that’s how I got into it,” he says.

Bhatia graduated from the National Law School of India University Bangalore and pursued his graduate education in Oxford University and, subsequently, Yale Law School. He is currently enrolled in a PhD programme at Oxford.


The Transformative Constitution: A Radical Biography in Nine Acts; Gautam Bhatia; HarperCollins India; Non-fiction; ₹699


The Transformative Constitution is Bhatia’s second book. In 2015, he published Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution — a survey of free speech jurisprudence in India. “But here I was working with a wider canvas,” he says, pointing to the copy of the second book on the table. “The claims are broader and the research therefore was more interdisciplinary.”

The new book focuses on the ways in which the Constitution has been interpreted in judicial history. In the introductory chapter, he writes, “At the heart of every constitutional decision is the court’s assessment of what the Constitution means , why it exists in the shape and form that it does, and, above all, what injustices it is meant to remedy.”

He advances the argument that the Constitution, despite elements of continuity with a colonial administration, is a fundamentally “transformative” document. In pragmatic, calculated ways, it grounds Indian democracy in the principles of liberty, equality and fraternity, insulating it from the vagaries of electoral politics as well as oppressive social hierarchies.

“The phrase ‘transformative constitutionalism’ is South African in origin, referring to the Constitution that was drafted at the end of the Apartheid era. Scholars described the drafting using the analogy of a bridge — from a past that was iniquitous and unjust to a future based on equality,” he explains. “The idea is that the democratic project runs deeper than elections. The Constitution is attempting to reconstruct society itself — democratising not just vertical relations between the individual and the State but also horizontal relationships within castes, the workplace, the family, and communities.”

The booktraces its beginnings to December 2013 to the Suresh Kumar Koushal v. Naz Foundation judgment , which reversed a Delhi High Court judgment decriminalising homosexuality. In the US at the time, Bhatia followed the proceedings avidly on his laptop, feeling “a numb shock”.

“I was taught that the SC is a largely progressive institution. So in the aftermath of it reinstating Section 377, how were you to reconcile what had happened with what you believed about the court,” he asks. To make sense of the situation, he began reading about India’s judicial history, finding strains of judgments that were similar in character to Koushal .

At the same time, he encountered cases that upheld the transformative potential of the Constitution. “It occurred to me then that someone should write a book that draws these judgments together,” he says. The book, which took four and a half years to be completed, examines transformative constitutionalism through nine cases, ranging from sex discrimination jurisprudence to how privacy has been imagined as a law.

When the conversation moves to Bhatia’s other love — science fiction — he becomes animated. “For a long time, I was limited to classic sci-fi canon of dead white males — Asimov and Clarke and so on. But later, I was exposed to a wider world of science fiction,” he says.

Bhatia, who is now based in London writes for and edits a UK-based online magazine Strange Horizons , which is dedicated to amplifying the voices of sci-fi writers from under-represented countries.

“If you think about it, sci-fi is a fairly pro-colonial enterprise. Writers use sci-fi settings to live out colonial fantasies of going to other planets and conquering them. But a lot of writers are subverting such stereotypes,” he says as he discusses Cuban sci-fi writer Yoss’s book A Planet For Rent .

As the interview draws to a close, Bhatia is asked how he manages the time to do all that he does. His reply is swift and serious, even though he smiles as he says it. “I have no social life,” he says with a shrug.

For the rest of us, that may be the sole point of similarity with Bhatia.

Published on March 29, 2019

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