The Transformative Constitution
Author : Gautam Bhatia
Publisher : HarperCollins, Rs 699
In his new book, lawyer Gautam Bhatia has mainly focussed on the success achieved by the people of his ilk in getting Section 377 of the Indian Penal Code struck down by the Supreme Court, writes Kumar Chellappan
The year 2020 will mark the birth centenary of Nani Ardeshir Palkhivala, the legendary lawyer and Constitutional expert, who during his lifetime had set the courtrooms on fire with his scholarly erudition and superhuman wisdom. I doubt whether there are or were any other legal luminaries in the country whose words are spoken and quoted with the kind of reverence and adoration as that of Palkhivala.
I do remember the special convocation ceremony of the Manipal University held at Chennai in 1998 to honour Palkhivala, C Subramaniam, and APJ Abdul Kalam (who was then the scientific advisor to the Prime Minister of India). What stood out in that ceremony was the convocation address delivered by Prof BM Hegde, the cardiologist with a big heart, the then Vice-Chancellor of the university. It still echoes in the ears: “Ladies and gentlemen, today we are honouring three great sons of India with PhD (honoris causa). C Subramaniam, who gave us our food, Nani Palkhivala, who gave us our democracy and freedom, and APJ Abdul Kalam, who retrieved our self respect.” (The function was held within months of India’s peaceful nuclear explosion at Pokhran).
It was the shortest ever convocation address I have heard till date. “Isn't it self-explanatory and why should I irritate the gathering with a big speech,” said Prof Hegde when this writer asked him about the shortest address, after the function. The next day, I got the chance to meet Palkhivala at the residence of Subramaniam. The great lawyer was not in the best of health and did not say anything after the convocation. But with much pain and difficulty, he explained to me that the Indian Constitution was our Magna Carta.
There were comments from some sources that the Constitution needed a revisit as it has outlived its purpose and failed. “The Constitution has not failed. It’s we, the people, who have failed the Constitution. The foundation of the Constitution has been shaken by our corrupt politicians and negligence of the elite,” said Palkhivala. He pointed out the so-called amendment of the Constitution by the Indira Gandhi-led Government, which incorporated the words ‘secular, socialist and democratic’ to the Preamble. “Our country survived thousands of years without these words of decoration. What was the purpose for which this amendment was made and that too through the back door,” asked Palkhivala.
The incident crossed my mind while going through the book, The Transformative Constitution: A Radical Biography in Nine Acts, authored by Gautam Bhatia, a young lawyer. Palkhivala, too, has authored a couple of books, which could be described as the Gita or Bible of the legal profession. But the books, We, The People, We, the Nation, and Nani Palkhivala, Selected Writings were the outcome of his decades long sadhana in the world of law. (I am not forgetting the Law and Practice of Income Tax authored by Kanga and Palkhivala).
The readers may ask what Bhatia’s book has in common with Palkhivala? Absolutely nothing. Whenever one comes across the word ‘Indian Constitution’, the first name to crop up is that of the legendary Palkhivala. What Bhatia has done in this book is to “present a new way of reading the Constitution as India approaches the 70th anniversary of its adoption”.
Bhatia has focussed on the success achieved by the people of his ilk in getting Section 377 of the Indian Penal Code struck down by the Supreme Court. The author points out that Section 377 (popularly known as the sodomy law) of the IPC, which had made “carnal intercourse against the order of the nature” an illegal act. The law was drafted and incorporated into the IPC by Thomas Macaulay in 1864, but the Supreme Court last year ruled that “application of Section 377 to consensual homosexual sex between adults is unconstitutional, irrational, indefensible and manifestly arbitrary”. The author claims that the ruling by the Apex Court is yet another success for people fighting for equality before law and has devoted nearly 100 pages of the 499-page book to “eulogise this victory”.
It was a Delhi-based NGO which questioned the propriety of Section 377 before the Supreme Court and the judges gave a verdict which was celebrated with élan by a section of the population. The angry young man of Indian television held an hour-long ‘debate’, in which one heard some of the individuals who had been affected by the particular section singing hallelujah to the judiciary. The author describes the sodomy act itself as “carnal intercourse against the nature”. Striking down Section 377 from the IPC is a sure recipe to some kind of anarchy, says K Ramkumar, a widely respected lawyer with decades of impeccable experience in courts. The author has preferred to remain silent about the origin of the word ‘sodom’ even as he articulates about the sodomy law. Sodom was a city destroyed by God because of the evil nature of its inhabitants. The details are furnished in The Book of Genesis (chapters 18 and 19).
Interestingly, the section of people who have welcomed the Supreme Court ruling speak the same language as that of the self-styled liberals and intellectuals of India. The fact that a non-governmental organisation could get a law deleted from the IPC by the court itself is dubious. The author’s claim that the deletion of the Section has offered equality before law is not the last word on the topic. Senior lawyers specialising in the Constitution as well as clinical psychologists are unanimous in their view that the homosexual characteristics found in a section of the population are because of “psychological and physiological disorders”.
The argument put forward by the ‘Drop Section 377’ brigade is that “the Article 14 of the Constitution provides that the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India”. One is reminded about the boon given to Bhasmasura by Lord Shiva that anyone whose head he touched with his hand should burn and turn into ashes. In the story, it is said that Lord Vishnu appeared as Mohini to get rid of Bhasmasura when he became a major nuisance to the universe. But there is no possibility of any Mohini appearing in this chaos filled world to save us from this liberal brigade, which seeks total freedom from the great Indian tradition!
Our society is bound together because of some eternal values prescribed by the great acharyas of yore. The great physicians and rishis, who lived thousands of years ago, had formulated certain guiding principles for the smooth and safe life on earth. There are rules, regulations, laws, and dos and don’ts specified by them for happy, peaceful and prosperous life. Whenever these rules are violated, the repercussions were disastrous.
Long ago, while attending a lecture by Palkhivala at the Bharatiya Vidya Bhavan, Bombay, I remember him saying that freedom was not free. The US learnt it the hard way. Today, it is said that more than 60 per cent of the children born in the US do not know who their father is. One has to read Fatherless America by David Blankenhorn to understand the gravity of the situation faced by the world’s richest country. Live-in relations, cohabitations, license to use drugs, and the gun culture have taken the US to a stage of ruin. By a strange paradox, Fatherless America, too, was published by HarperCollins, the publishers of Bhatia’s book. Well, the choice is for the readers to make.
The views expressed are the reviewer’s own
