In Unsealed Covers: A Decade of the Constitution, the Courts and the State, Gautam Bhatia provides a fascinating account of constitutional decision-making in India between 2014 and 2023. Building on his contributions to the Indian Constitutional Law and Philosophy Blog, Bhatia’s book offers a real-time account of cases involving the most pressing constitutional controversies in India during this period, and situates those cases in broader historical and institutional context.
Bhatia is a scholar but also an advocate, blogger, and close-up observer of Indian courts. Some might worry that this would lead to a lack of perspective on the relevant decisions and their longer-term influence on Indian constitutional law. But Bhatia is nothing if not far-sighted. He puts all the decisions discussed in the book in their broader historical context and offers insightful predictions about the future trajectory of constitutional law in a range of areas where the current doctrine is unsettled. For instance, he notes the split in lower courts on issues such as marital rape and restrictions on the wearing of the hijab (Pp. 113-31), suggesting that these issues will need to be resolved by the Court in the mid-term, and predicting—or at least hoping—that they will be resolved in favour of freedom and equality. He likewise explores current tensions in the Court’s jurisprudence relating to equality, and the battle between a substantive equality and exceptions-based view of provisions such as Art 16 of the Indian Constitution, before calling for a return to the more substantive vision articulated by the Supreme Court of India in State of Kerala v NM Thomas (1976) 2 SCC 310 (Pp. 133-34, 165.)
Attention to judicial dissensus of this kind is just one way in which Bhatia situates Indian constitutional law as part of a broader form of legal and political contestation. Bhatia also explores tensions between the courts and political branches, and argues that contestation—both within and between institutions—can be valuable for constitutionalism.
In Unsealed Covers, Bhatia lays out a compelling normative vision of democratic constitutionalism: one based on a commitment to constitutional contestation, to explicit engagement with constitutional values, and to the importance of legal context. The values Bhatia sets out are of universal appeal; he argues for a vision of democratic constitutionalism that “celebrates the existence of plural ways of living, and privileges human dignity and freedom” while also advancing commitments to equality and anti-subordination (Pp. xx-xxii.) If anything, Bhatia leaves the reader wanting to hear more about this vision of constitutionalism.
This normative framework also inflects the choices Bhatia makes in selecting issues and decisions for inclusion in the book. The Supreme Court of India produces a vast body of jurisprudence, and an important part of the contribution Unsealed Covers makes is via its choice of key judgments and developments in the relevant period. Bhatia makes these choices with a commitment to democracy, contestation, constitutional values and attention to context squarely in mind. For example, in the context of the Unlawful Activities (Prevention) Act 1967, Bhatia first notes Supreme Court precedent imposing stringent limits on access to bail for those accused under the Act, but then in subsequent chapters selects cases for discussion that serve to nuance and temper the decision, including the development of a narrower approach to the conduct that triggers application of the Act and the notion that allegations under the Act must be “individualized, factual and particularistic” (P. 27.) Similarly, Bhatia highlights not only the seminal decision of the Supreme Court in Puttaswamy v Union of India (2017) 10 SCC 1, but goes on to highlight the decisions of the Court applying that case which involve a willingness to impose substantial limits on the power of the state to override the right to privacy in the interests of a common, national identity (Pp. 101-12.)
In making these selections, Bhatia acknowledges the inherent dynamism and fragility of Indian constitutional law and values, as well as the way in which basic values are under threat today and the subject of regression and advances in the decisions of the Court. Bhatia does not shy away from addressing the most serious controversies surrounding the Court, including allegations of sexual harassment against a former Chief Justice and the Court’s lack of impartiality in handling these allegations (Pp. 321-29.) Another great virtue of Unsealed Covers is its acute attention to the broader political context in which Indian constitutional law operates generally and particularly in the context of the rise of the BJP. It is also keenly alive to the possibility of what David Landau and I have labelled the risk of “abusive judicial review”, namely: judicial abstention or deference that leads to the empowerment of anti-democratic actors, or else judicial review that actively dismantles democratic guardrails. Indeed, Bhatia notes the general dangers of abstention in the context of many BJP-sponsored changes (Pp. 302-9), as well as specific forms of democratic retrogression sanctioned by Indian courts—for instance, in the context of the independence of certain “fourth branch” or “guarantor” institutions (Pp. 286-97) and in the context of Jammu and Kashmir (Pp. 261-64.)
The book is written in a highly accessible and engaging way, with a very clear purpose in mind. It aims to make constitutional law accessible to ordinary citizens or, to quote Bhatia, to “democratize” constitutional law so that it can be a sight of contestation by ordinary citizens (P. xvi.) At a time where democracy is under threat in so many countries, this aim is surely one of the most important and valuable parts of the book—and a model for scholars worldwide to emulate.
