Gautam Bhatia & Constitutional paranoia

Gautam Bhatia explains why his 'constitutional scholarship' is wholly worthless in a recent post on his blog.  

Recently, I was presenting some of my current research work in a seminar. That research deals with the Indian Constitution as a terrain of contestation between different visions of power.

So, this is not scholarship, it is paranoid fantasy. The Indian Constitution specifies that it is the Legislature, not the Bench, which must be the battlefield between different visions of power and the different policy alternatives those visions involve. Political Scientists study Legislative decisions and processes so as to chronicle and analyze how different visions of power and different policy proposals fare in this contest. In particular, they look at how and why the Constitution is amended and also what effect treaty law has upon the harmonious construction of Constitutional Law.

Constitutional Scholars who restrict themselves to Judicial, not Legislative, decisions may have greater scope for research in countries, like the US, where there is 'dual sovereignty' (i.e. States' Rights) and where there is life-time tenure as well as Executive and Legislative voice in the selection of Judges.

 However, in India, as in the UK (at least prior to the creation of the Supreme Court), constitutional scholarship must have a much narrower scope save when the Executive is feeble and Parliament is lethargic. Only at such times, might 'Judicial activism' fill a power vacuum. Under such circumstances, one may speak of this ideological clique of Judges combating the Master of the Rolls and his clique. Under those circumstances, what we have is political failure on the part of the Executive and the Legislature. This is not 'contestation' of a type envisaged or encouraged by the Constitution. It represents a political pathology- one which India under Modi is wholly free from. This does mean that raving lunatics like Bhatia are now a laughing stock. 

 This is not to say that there can be no worthwhile Constitutional Scholarship in India. But, to be useful, it must predict likely results not find them deeply shocking. Gautam, who reacts hysterically any time the Bench does anything sensible, is not a constitutional scholar. He is a paranoid fantasist who imagines he is fighting Fascism by clutching his pearls and penning ignorant shite about how Judges can be sued for defamation.  

This Walter Mitty character now mentions a 'Russian political theorist' who has come humbly to Bhagwan Bhatia to seek wisdom. 

During the Q&A, a Russian political theorist in the audience raised his hand. He said that for him, the very idea of a Constitution as a terrain of contestation was a novel one.

This is strange. Russia had a big Constitutional crisis in 1993. Hundreds were killed or badly wounded. Surely this 'political theorist' must have studied the matter.  The big question was whether the President had the constitutional authority to dissolve Parliament. Bhatia's readers must be very ignorant or very young not to know that a Russian political theorist would know more about 'contestation'- very violent contestation- of Constitutional terrain. Has Bhatia invented the Russian? Or was the Russian not really a political theorist at all? Perhaps he was a nutcase like Bhatia- who thinks Judges can be sued for defamation. 

The thought that a Constitution could shape and constrain political power, rather than simply becoming whatever the dominant political power desired it to be at any given time, was something inconceivable.

This is foolish. The Constitution may not, as in the Russian case, specify who the 'dominant political power' really is. In 1993, the Army sided with Yeltsin. That's what decided the issue. I suppose a silly Russian political theorist might come to the conclusion that Constitutions don't matter. Only the army does. Yet, if Constitutions don't matter, there would never have been a 1993 crisis in the first place. A smart Russian political theorist would know this.  

The comment has stayed with me.

Because Bhatia is as stupid as shit.  

I was thinking about it last month, for example, when a two-judge bench of the Supreme Court suspended the Xth Schedule of the Constitution through an interim order,

A vacation bench granting interim relief is not suspending any particle of the Constitution. The fact is, under Article 145 (3) a minimum 5 member 'constitutional bench' is required to resolve any substantive matter- which is what will happen in this case. Bhatia may think otherwise. But then he also thinks a Judge can be sued for defamation for remarks he made from the Bench! 

and ordered a floor test through another interim order –

they refused to stay a floor test that the Governor had called for. But this is subject to review by a bigger bench. 

while the Xth Schedule stood suspended,

Nope. Interim relief was granted. The Bench has no power to suspend a Schedule though it can suspend taking any further cases under a particular law.  

thus changing the composition of the House –

how? There was a split in a political party. A bigger Bench will decide if the majority clique gets the party symbol. For the moment, the composition of the House has not changed. It is just that legislators from a particular party have had a falling out. 

all within the space of two days; soon after, the government fell. Now, you can try and somehow analyse that under existing doctrines of constitutional law.

This is easily done. There was a split in a particular party. The Governor wanted a floor test. A Vacation Bench permitted this but the matter will be finally decided by a larger Bench. The relevant doctrines of constitutional law have to do with the Governor's responsibility to ensure that the CM enjoys the confidence of the house in the wake of a split in his party in which the majority are against him. Bhatia may clutch his pearls and scream blue murder but there is no argument in constitutional law which he can advance. The fact is, the Constitution isn't about protecting a sitting CM's job even if he has lost the confidence of the House. It is about preventing this type of breakdown of democratic due process. 

If you try hard enough, and engage in enough linguistic and conceptual pyrotechnics, maybe you’ll even succeed. Or you could trust the evidence of your eyes and ears, and acknowledge that what is happening here is not the application of constitutional law, but the Constitution – and constitutionalism – shaping itself to meet the demands of political power.

In the opinion of a cretin who thinks Judges can be sued for defamation for what they say in court.  

Examples of this could be multiplied. I have discussed some glaring illustrations in the seventh anniversary post for this blog. From the non-hearing of crucial cases such as the electoral bonds case,

which isn't crucial at all. The fact is criminals could extort money by claiming to be collecting money for a political party. India had already undergone the pain of demonetization. It is a legitimate political goal to get black money and extortion out of politics. The Bench has promised to review this and it may make some useful changes. But the plain fact is Modi is in power because there is no other credible candidate. Electoral bonds don't matter.  

to countless substantive decisions (the most recent being, of course, the PMLA judgment, and other “Executive’s Court” judgments discussed in this blog post) where existing principles of constitutional interpretation are either discarded or simply ignored in order to reach the outcome,

This simply isn't true. A bigger bench will look at profound constitutional questions- e.g. what is or isn't a money bill- but that will take time.  

it seems to me that our present context is not too dissimilar from what my Russian colleague described:

But Bhatia is a guy who is so ignorant of the law that he claims that Judges can be sued for defamation for what they say in open court! 

a situation where constitutional law is no longer constraining political power, but instead, is subservient to it, and in many cases, serves to entrench and legitimise it. This is the antithesis of both the idea of constitutionalism, and the idea of the rule of law.

Gautam thinks that the Bench should strike down every law passed by the Legislature and prevent Governors and other officials doing their constitutional duty. This is the voice of paranoia.  

Such a situation raises the obvious question of what purpose – if any – is served by constitutional scholarship and writing, which must continue to assume a reality that no longer exists in practice.

The answer is that paranoid ranting is not scholarship. Bhatia may have thought that studying Law was a way to prevent elected politicians from being able to do anything to help the country. He was wrong. The Indian Constitution does not exist so that Bhatias can fuck up Bharat. It is there to make things go more smoothly.  

In this piece, for example, Andras Jakab discusses various ways in which one may teach constitutional law in such a context – and how one might maintain one’s intellectual integrity in the process – but doesn’t go further in asking why one ought to do so, or what the point of it is.

Jakab says ' One of the key functions of constitutional law is the softening of political conflicts (i.e., integration, peaceful conflict resolution etc.). In order to fulfil this function, constitutional lawyers (constitutional scholars) should behave in a manner that is compatible with being (and looking like being) above everyday party political conflicts. A constitutional law scholar who openly acts like a party politician (either on the side of the government, or on the side of the opposition) is a self-contradiction. It is, of course, possible to change careers, but you cannot exercise these two roles at the same time. No matter how much you love football, you cannot be the referee and the striker at the same time.'

Bhatia can't take Jakab's advise because he simply does not know the law. Also he is utterly paranoid. Everything is a big conspiracy and the Fascists have already taken over everything. 

Jakab is telling his students 'look, if you sound like a sane and erudite lawyer, people will listen to you. If you scream and shit yourself and say 'Judge should be sued for defamation!' people will think you are a lunatic. Don't shit yourself. Try to earn some money as a lawyer by actually studying the law and saying sensible things.' 

One answer, I believe, is found in comparative constitutional history.

In which case, India should be looking at what happens in Pakistan and Bangladesh and Sri Lanka. Their constitutional history is more closely comparable to ours. Bhatia, of course, will choose the most outlandish countries to compare India with. 

For example, South African lawyers

That country had Apartheid till 30 years ago! India never had a color bar. No Whites settled there. Why is this cretin comparing India with South Africa?  

have highlighted the importance of a continued and regular engagement with constitutionalism and the rule of law during the years of apartheid, when – for decades – legal doctrine and court rulings valued neither.

This is foolish. South African Courts enforced Apartheid but did apply legal doctrine to settle cases between Whites or Asians etc. The truth is, an Indian origin merchant in Durban got better service from local courts than he would in India on a matter to do with ancestral property or breach of contract. I recall helping a family get their aged mother out of India after their rascally in-laws tried to get her thrown in jail under the anti-dowry law. 

The importance of engagement lay in the fact that when South Africa transitioned into a constitutional democracy in the mid-1990s, it did not have to discover from scratch the concepts of constitutionalism and the rule of law.

It also had a good economy and excellent schools and Colleges.  

These concepts had been kept alive in adverse circumstances, and this meant that that the the tradition could simply continue, instead of having to be reinvented.

One may say the same of Zimbabwe. The question is whether South Africa is going to go down Mugabe's road. Some would say it already has. Constitutional Scholars aren't going to alter the outcome.  

The purpose of constitutional scholarship and writing, thus, is future-looking: it seeks its justification in keeping alive an intellectual tradition and a way of thinking that might be held in contempt in the present, but has been indispensable in the past, and will become indispensable again in the future.

But Bhatia's battiness has always been held in contempt. It was mischievous in the past and losing any attraction it might once have had for the loony left. The plain fact is, these nutters could be jailed in the same manner that they sought to get others jailed. What is sauce for the goose... 

If we do take this as the justification for continued constitutional scholarship and writing at this time, however, intellectual honesty demands admitting to ourselves a few uncomfortable truths.

Bhatia is incapable of acknowledging the truth- viz. he is as stupid as shit and has wasted his time.  

The first is that as far as the present is concerned, constitutional scholarship has no tangible contribution to make (to put it bluntly, it is useless).

No. There are good lawyers who can advise us not to transact particular types of business within Indian jurisdiction precisely because some constitutional matters are unresolved. That sort of scholarship gets incorporated into advise given to Corporations. It is useful.  

You can, for example, study the drafting history of the Xth Schedule, read all the prior cases on the point, and construct detailed arguments about interpretation, but when the exigencies demand it, the Xth Schedule will get suspended by a one-line interim order of the Supreme Court, and it simply will not matter what the canons of interpretation are.

But that is subject to review by a larger bench. Clearly the canons do matter. What constitutional scholarship can usefully do is explain what the current position is in simple terms. Is it the case that 'retail' defection is barred but 'wholesale' is permitted? Legal scholarship needs to be useful not paranoid because the Law is a Service industry. It aint some fucking terrain of contestation between brave little Bhatia and Modi's Mongol Hordes.  

As pointed out above, constitutional scholarship operates in a world in which the Constitution determines the scope and limits of political power.

No such world exists. Suppose India changes its Constitution such that the Governor of Assam gains power over the Sun and Moon. Would she really be able to cause an eclipse? No. The scope and limits of any type of power are material and strategic. Bhatia has been living in a fantasy world where the Bench has a magic wand. But Bhatia has a tiny little wand of his own and he keeps tugging at it furiously in the hope that this will cause the Bench to do whatever he wants.  

There is another world in which political power determines the scope and limits of the Constitution.

In the real world, political power creates and amends and ignores or enforces Constitutions. Bhatia is tugging at his little wand in a desperate attempt to escape to some other world.  

When the latter becomes the “real world” – the world in which we live in – then, for obvious reasons, constitutional scholarship becomes as illusory as the world within which it exists.

Is Bhatia saying that he might snap out of his delusion system? Will he accept reality? No. Don't be silly.  

We then say that the justification for constitutional scholarship lies in the long term, and what sustains it is a vision of the future, much like the South African lawyers were sustained by a vision of the future.

Though most people think South Africa is headed down the Zimbabwean shithole. Previously it was thought that if various tribes were sufficiently hostile to each other then 'Constitutionalism' would prevail. But the only tribe which matters is the wabenzi tribe- those who drive Mercedes Benz.

However, that requires a second admission, which is that there is no way of knowing just how “long” the long-term might be. Prominent Kenyan lawyers and constitutionalists who fought for constitutionalism and the rule of law in the 1980s were lucky enough to see something of it come to pass within twenty-five years,

Kenyatta and Odinga have buried the hatchet. Things are looking up for Kenya. But this isn't because of constitutionalism. It is because of a rapprochement between ethnicities and regions.  

but not everyone might be so lucky (once again, I’m thinking of my Russian colleague). In that sense, then, continuing to engage in constitutional scholarship and writing requires admitting to oneself that not only is the work useless in the present, but might continue to be useless for a good while in the future, and indeed, one might never actually see it come to any use.

Why not simply do some proper, sensible, legal work instead? Why pretend tugging at your little wand will make the Bench take out its much bigger magic wand?  

In doing this, therefore, one is betting upon a future that might never come to pass. This becomes even more difficult to justify when one thinks of the fact that there are other, more immediate, and more tangible uses to which the law can be put: for example, bail applications. In that context, continuing to focus on constitutional writing and analysis seems to become an almost unforgivable luxury. To keep doing it, one has to convince oneself to take a leap of faith.

There is a market for readable, reliable, objective reporting of open questions in constitutional law. Bhatia is too stupid, ignorant and utterly paranoid to supply that market. He has no alternative but to double down on this hysterical nonsense. Sooner or later some International NGO will give him a sinecure.  

As this blog enters its tenth year, these are the guiding principles under which it will continue to exist. The focus will remain on examining the interface between political power, the rule of law, and constitutionalism in present-day India, without deceit, and without illusions. And to the question of why, the only answer is: we are all on a leap of faith.

Bhatia, tugging his little wand, is indeed taking a leap but it is up his own arse. The truth is that the Bench will finally start reforming Court administration and streamlining things. It will have to be much more activist but only in curbing nuisance suits and demanding better standards of legal draftsmanship. There must be 'expert systems' and AIs which can help the Bench regain prestige. But, precisely because it would be doing its proper job better, the Bench is likely to develop a more capacious doctrine of political question. What I would like to see is Law & Econ mavens organizing a Utilitarian equivalent to the Federalist Society in our Law Schools. We have had enough of shrill Setalvads and batty Bhatias.