Gautam Bhatia’s ‘Unsealed Covers’: Judiciary’s complex interplay with State

Satya Prakash

Often described as the most powerful Supreme Court in the world, the Supreme Court of India has been generally hailed as an institution that has satisfactorily performed its role as the final arbiter and protector of fundamental rights of citizens, barring the Emergency when it succumbed to the executive. As the judiciary, particularly the Supreme Court, enjoys greater credibility and public faith compared to the other two organs of the State — the legislature and the executive — it has been spared the criticism and public scrutiny it should have been subjected to.

In that sense, Gautam Bhatia’s book, ‘Unsealed Covers — A Decade of the Constitution, the Courts and the State’, stands out for two reasons. Firstly, it offers a rare critical insight into the functioning of the judiciary and the complex interplay between institutions of the State. Secondly, unlike most academic works on law and the judiciary that tend to be boring for a common reader, Bhatia’s book is replete with live courtroom accounts that make it an interesting read.

The book attempts to examine the role of the Indian judiciary since 2014 — when the BJP got an absolute majority in the Lok Sabha, ending a 25-year long era of political instability — on issues such as personal liberty; privacy, equality and dignity; social justice and reservations; socio-economic rights; NRC and Rohingyas; nullification of Article 370; tussle for control over bureaucracy in Delhi; anti-defection cases of Karnataka and Madhya Pradesh; master of roster controversy; Sabarimala judgment; certain cases on UAPA, PMLA and FCRA and recusals, besides others.

In selecting the period (2014 to 2023) for scrutiny in his book, the author has admitted to his biases and has given out what he intended to do. “I should also make it clear that neither I — nor this book — is, or attempts to be, ‘neutral’ in the ongoing constitutional struggle,” he writes in the Preface. Had he chosen to offer a comparative analysis of the performance of the Indian judiciary during the Congress-led UPA rule (2004-14) and the BJP-led NDA rule on certain important parameters, it would have been a much better work.

Not defined as ‘State’ within the meaning of Article 12 of the Constitution, the Indian judiciary has been known as a status-quoist institution for long. Legendary Justice VR Krishna Iyer had on June 24, 1975, granted a conditional stay on the Allahabad High Court verdict convicting the then Prime Minister Indira Gandhi of electoral malpractices; disqualifying her from Parliament; and imposing a six-year ban on her holding any elected post. The stay allowed her to continue as Prime Minister even as she was debarred from taking part in parliamentary proceedings and drawing salary as an MP. The very next day, she imposed the Emergency and the Supreme Court overturned the HC verdict on November 7, 1975.

Admittedly sceptical of power structures, the author appears to have approached issues of personal liberty from the perspective of constitutional dogmas. Constitutions operate within the State system, wherein all the fundamental rights are premised on the existence of the State as the guarantor of rights. When an individual poses a threat to the State, being the protector of life and liberty of citizens, it does what it can to preserve and protect itself. These complexities make the task of constitutional courts much more difficult, particularly when the judges in question lack the intellectual depth to navigate the terrain. Bhatia has managed to highlight it.