The Constitution of India carries a “spiritual” dimension—a living, spectral hermeneutic—that transcends its literal text (“black letter”) and animates its transformative power. This intervention draws on the arguments of Gautam Bhatia’s book, The Transformative Constitution: A Radical Biography in Nine Acts (2019), and tries to analyze them, to make a case for recognizing the notion of a constitutional spirituality.

The Clash of Text and Spirit

Bhatia opens by recounting two conflicting judicial visions of 1950: Justice J.C. Shah’s view of continuity and gradual evolution, and Justice Vivian Bose’s vision of a clean break—a “magnificent sweep” that “obliterated” the past except where “expressly preserved” . This disagreement is not mere semantics but a contest over the Constitution’s very spirit: is it a vessel of entrenched institutions or a force for radical transformation?

Justice Shah’s “evolution” thesis rests on the Constitution’s borrowings from the Government of India Act, 1935 and its perpetuation of colonial-era mechanisms like preventive detention . In contrast, B.R. Ambedkar insisted that only the “details of administration” were borrowed, and that the Constitution’s soul—universal adult franchise, secularism, and fundamental rights—marked a revolutionary rupture . This revolutionary spirit underlies what Bhatia calls the Constitution’s “tectonic shift in constitutional philosophy” .

The Preamble as Sacred Incantation

Far from being a mere preamble, the triad “liberty, equality, fraternity” functions as a kind of constitutional mantra—an incantation that summons the Constitution’s deeper meaning. Bhatia observes that, over two centuries, these words “acquired the force of an incantation” . In Ambedkar’s words: “liberty cannot be divorced from equality… Nor can liberty and equality be divorced from fraternity… Without fraternity… liberty and equality could not become a natural course of things” . This language evokes not only legal commitments, but a spiritual vision of social solidarity.

Where the text guarantees rights against State power, fraternity reaches beyond State–individual binaries to address the “private” spheres of family, community, and workplace. As Dr S. Radhakrishnan reminded the Assembly, fraternity aimed to “abolish every vestige of despotism, every heirloom of inorganic tradition” in Indian society . Here we see a spiritual hermeneutic: the Constitution, like a healing ritual, seeks to dissolve social bonds of exclusion and transform them into bonds of solidarity.

“Emotion Recollected in Tranquillity”

Bhatia’s interpretive methodology draws on K.G. Kannabiran’s image of the Constitution as “poetry, emotion recollected in tranquillity.” This phrase captures the idea that the Constitution’s words carry the spirit of myriad liberation struggles—Bhakti egalitarianism, Tarabai Shinde’s proto‐feminist critiques, Phule’s anti‐caste writings, Ambedkar’s agitation for Dalit rights, Gandhi’s defense of free speech—all distilled into legal form. Thus, constitutional meaning flows from a spectral archive of pre‐constitutional dreams and struggles.

Against both rigid textualism and unfettered “living tree” judicial activism, Bhatia proposes a middle path—transformative constitutionalism—grounded in text, structure, history, and the spirit behind the text. He argues that true constitutional interpretation must summon the spectral voices of the freedom movement: Rukhmabai’s defense of marital autonomy, the suffragette campaign against gendered exclusion, Ambedkar’s critique of caste, and Gandhi’s valorization of dissent .

A Spiritual Hermeneutic Enshrined

The Constitution’s transformative power lies in its capacity to channel a spiritual hermeneutic: an ongoing dialogue between the written word and the unwritten ethos of social justice. Its incantatory Preamble, its trinity of principles, and its contrapuntal canon of marginalized judicial voices together embody a living Constitution whose true force lies not only in what it says, but in the spirit it invokes.

Beyond the vacillations of originalism and the “living tree,” Bhatia proposes transformative constitutionalism: an approach that honors text, structure, and history without subjugating interpretation to any single method. As he observes, unlike static originalism or the untethered living‑tree, transformative constitutionalism “does not accord an overriding veto power” to text, history, or structure—and “rejects a mythical ‘original intent’ of the framers” while recognizing that they “chose words…expressing principles that would endure” .

Crucially, this method embraces a plural, spectral canon—the “emotion recollected in tranquillity” of pre‑constitutional struggles, from Rukhmabai’s marital‑equality petitions to Phule’s anti‑caste writings . It thereby summons the spirit of liberation movements to inform the Constitution’s ongoing evolution, treating the text as both vessel and incantation of deeper social aspirations.

Privacy: A Ritual of Autonomy

In the Selvi judgment, the Supreme Court’s recognition of privacy under Articles 20(3) and 21 exemplifies the Constitution’s spiritual reach into individual autonomy. Bhatia disentangles three conceptions of privacy—spatial‑functional, relational‑institutional, and decisional—and shows how Selvi foregrounded the decisional, holding that involuntary narco‑analysis or lie‑detector tests violate “the privacy of one’s mental processes” and “the importance of personal autonomy in aspects such as the choice between remaining silent and speaking.”

“the privacy of one’s mental processes” and “the importance of personal autonomy in aspects such as the choice between remaining silent and speaking” are protected under Articles 20(3) and 21 (pp. 142–43).

Moreover, privacy is rooted in bodily integrity: “‘marriage’, ‘motherhood’, ‘procreation’ and ‘child‑rearing’…are also the result of decisions…decisions that lie at the core of individual autonomy.” By shielding these private choices, the Constitution enacts a sacred ritual of self‑determination, sanctifying the body and mind against State intrusion—a spiritual sanctuary within the black‑letter guarantee.

From Ritual Boundaries to Essential Spirit

Bhatia then turns to Articles 25–26 on religious freedom, tracing the Court’s early jurisprudence on “essential practices.” Initially, the Court distinguished religious from secular practices by textual implication alone; later, it added an internal test of whether a practice was “essential to the religion.” This semantic shift—from whether a practice is religious to how integral it is—reveals the judiciary’s power to define the spirit of faith.

Justice Gajendragadkar’s synthesis dissolving these two tests—“[for] the practices in question…to be treated as part of religion they must be regarded by the religion as its essential and integral part” —illustrates a ritual hermeneutic: the Court conducts a quasi‑sacramental inquiry into the “essential” heart of religious tradition, preserving both doctrine and the freedom to reform.

The Constitutional Trinity as Incantation

Underpinning all these domains is the Preamble’s triad—liberty, equality, fraternity—which Bhatia describes as “integral elements of the three pillars of the constitutional trinity, mutually reinforcing and creating the necessary foundation for a free and egalitarian democratic politics.” These words function less as descriptive terms than as a sacred mantra, channeling a collective will toward social solidarity.

When judicial decisions on privacy or religion are read against this incantation, their transformative potential becomes visible: each right ceases to be a mere legal entitlement and becomes a ritualized expression of the Preamble’s spiritual vision

Bhatia’s analysis reveals that India’s Constitution is nothing less than a living charter whose true potency lies in the interplay of text and spirit. Transformative constitutionalism, with its ecumenical interpretive canon, consecrates judicial engagement with the unwritten ethos of freedom struggles. The emergent right to privacy sanctifies personal autonomy as a sacrament, while the Court’s regulation of religion conducts a liturgy defining spiritual essentials.

In so doing, the Constitution transcends its black‑letter form: it becomes a spectral hermeneutic, a ritual of collective self‑realization that animates India’s democratic aspirations. This, for Bhatia, is the ultimate transformative promise—an ongoing spiritual covenant between the state and its people, etched not only in ink but in the lived rituals of justice.

In the book’s second half (pp. 201–300), Gautam Bhatia deepens his argument that India’s Constitution is animated by a spiritual or spectral hermeneutic—an ethos that transcends its literal clauses to infuse law with transformative force. Focusing on the state’s exceptional powers, the role of Directive Principles, and labour rights, Bhatia shows how the Constitution channels a moral vision that exceeds “black‑letter” text.

From Preventive Detention to Emergency

Bhatia further traces the judiciary’s accommodation of states of exception, where ordinary rights give way to executive supremacy. The preventive‑detention regime, sanctioned first under colonial law and then by independent India, embodies what Carl Schmitt called “the state of exception.” As Bhatia notes,

“The preventive detention regime is our first indigenous, judicially sanctioned state of exception” .

Under the Emergency (Article 352), fundamental freedoms were suspended wholesale—indeed, in ADM Jabalpur v. Shivakant Shukla, the Supreme Court held that even habeas corpus lay beyond judicial review, effectively treating citizens as subjects once more . Far from an aberration, Bhatia situates this “culture of authority” within a continuous jurisprudential current:

“ADM Jabalpur endorsed a ‘culture of authority’… individuals lost their status as rights‑bearing citizens, and became—for the duration of the Emergency—colonial‑era subjects once again” .

Yet, the true hermeneutic significance lies in the contrast between this suspension and the Constitution’s spiritual core—its Preamble’s mandate of “liberty, equality, fraternity.” By foregrounding how the Court’s deference to executive power collided with the Constitution’s foundational ethos, Bhatia reveals an underlying moral drama: law by day, spirit by night.

Directive Principles as Constitutional Spirit

Where the state of exception showcases law’s outer limits, the Directive Principles of State Policy (DPSP, Part IV) illuminate its inner soul. Though “not enforceable by any court,” these Principles are, in Bhatia’s words,

“framework values… meant to inform and illuminate the approach of the Court in giving concrete shape to abstract fundamental rights.”

In N.M. Thomas v. State of Kerala, Justices Mathew and Krishna Iyer read Article 46 (“promote…the interests of the weaker sections”) into Article 16’s guarantee of equality, thereby treating DPSPs not as “pious wishes,” but as spiritual lodestars guiding judicial interpretation . This harmonious reading transforms unenforceable ideals into living commitments—proof that the Constitution’s written words serve as vessels for a deeper moral vision.

Labour Rights and the Autonomous Spirit of Article 23

Next, Bhatia turns to Article 23’s ban on “traffic in human beings” and “forced labour.” Unlike other post‑colonial constitutions that subsume forced labour under slavery/servitude, India chose “begar” (unpaid forced labour) as its paradigm. As Bhatia explains,

“It was begar that anchored Article 23(1), necessitating an autonomous interpretation, independent of the intellectual baggage carried by words such as ‘slavery’ and ‘serfdom’” .

By doing so, the framers infused the text with a uniquely Indian moral memory—vindicating the downtrodden not through foreign categories, but through indigenous experiences of coercion. This labour‑republican choice signals that the Constitution’s letter is animated by a spectral archive of social justice struggles.

Text and Spirit in Dialogue

Across these domains—exception, directive principles, labour rights—Bhatia demonstrates a consistent pattern: the Constitution’s black‑letter text sets the stage, but its spirit enlivens the play. The judiciary, under Bhatia’s transformative model, must act as a ritual custodian, invoking the Preamble’s “incantation” of liberty, equality, fraternity to interpret even the most technical provisions .

This spectral hermeneutic rejects both rigid textualism and untethered judicial activism. Instead, it summons the Constitution’s inner life—the “emotion recollected in tranquillity” of pre‑constitutional liberation struggles—to guide modern adjudication . In so doing, the law remains anchored to its founding moral vision, even as it evolves to meet new challenges.

Bhatia shifts from analyzing landmark judgments to confronting the greatest challenge facing twenty‑first‑century India: the collision between technological power and constitutional spirit. Here, he shows that the Constitution’s spectral hermeneutic—its capacity to summon an ethos of individual dignity, solidarity, and autonomy—must extend beyond the “black‑letter” guarantees of Articles 14–32 into the digital architectures that now govern everyday life.

Judicial Rituals to Technological Ruptures

Bhatia begins this section by recalling how transformative constitutionalism has traditionally been anchored in courtroom “rituals” of invoking the Preamble’s trinity—liberty, equality, fraternity—to protect human dignity against executive overreach. Yet, he warns,

“today, transformative constitutionalism is at risk in a world where the relationship between individuals, communities, corporations, and the State is mediated, and sometimes even defined, by technological systems” .

In this new arena, data‑driven power can outflank judicial safeguards: automated profiling, biometric mandates, and algorithmic decision‑making can preempt the ritual of judicial scrutiny altogether. The Constitution thus faces a spectral crisis—its spirit of autonomy and solidarity under silent siege by inscrutable codes and centralized databases.

Common Cause and the Right to Refusal

To illustrate this existential threat, Bhatia first revisits Common Cause v. Union of India (2018), where a five‑judge Bench recognized passive euthanasia as rooted in the right to life and personal liberty. Crucially, the concurring opinions insisted on an individual’s sovereign choice over medical intervention:

“Should [the individual] be [a] ‘guinea pig’ for some kind of experiment?” .

Bhatia reads this as the embryo of a broader right to refusal—a sacramental protection of bodily and decisional autonomy that extends beyond the hospital into any context where an individual might be “conscripted into a technological system.” In Bhatia’s spectral hermeneutic, this right is not merely a textual promise but a ritualistic invocation of the Preamble’s liberty pillar, affirming that the Constitution enshrines not only the freedom to act but the freedom not to be acted upon.

The Aadhaar Case: Biometrics and Bondage

Bhatia turns to the Aadhaar litigation, the Constitution’s most momentous confrontation with mass data‑collection. What began as a voluntary identity scheme had, by 2018, metamorphosed into a compulsory “charter of servitude,” as Shyam Divan memorably warned. Enrollment required sacrificial surrender of one’s biometrics—fingerprints, iris scans, and demographic details—to a centralized database. Bhatia argues that Aadhaar’s “authentication” mechanism inverted the constitutional balance: rather than the individual proving her claim to rights, the State assumed a presumptive power to track and exclude citizens at every turn .

In Bhatia’s spiritual reading, this system replicates the colonial “jurisdiction of suspicion”—the same logic that once empowered preventive‑detention laws—and thus stands in direct conflict with the Constitution’s ritual of justification . Where once a citizen could invoke Article 21’s right to life and dignity, Aadhaar reduced her to a data point, undermining the spiritual hermeneutic that frames each legal right as an incantation of collective moral commitment.

Right to Technological Self‑Determination

To counter this digital despotism, Bhatia articulates a new constitutional principle:

Technological Self‑Determination—“Individuals have the right to engage with technological systems on their own terms, the right to opt into or opt out of such systems without suffering for it, and the right not to be subjected to technological intervention without being given meaningful choice” .

This spectral right draws its energy from the Preamble’s liberty and fraternity pillars: it protects individual autonomy (liberty) while insisting that technology not become an instrument of social exclusion (fraternity). Just as the Preamble’s “incantation” binds State power to a spiritual covenant, technological self‑determination binds private and public uses of data to the transformative ethos of the Constitution.

Jyoti Chorge and the Goonda Acts

Even as Bhatia formulates this new right, he reminds readers that the state of exception remains alive—not only in central anti‑terror laws but across a panoply of state‑level “Goonda Acts” that permit preventive detention based on “preparations” for vaguely defined offences . These laws extend the spectral shadow of Emergency powers into everyday governance, threatening the spiritual sanctity of other fundamental rights.

Yet, Bhatia notes, constitutional spirituality can still reassert itself. He points to Jyoti Chorge v. State of Maharashtra, where the Bombay High Court refused to subordinate an anti‑terror statute to the state of exception, instead pegging its interpretation to the civil‑rights tradition and the Constitution’s fundamental commitments . Chorge thus exemplifies the ritual custodian role that judges must play: invoking the spectral hermeneutic to keep even the most draconian laws within the Constitution’s spiritual orbit.

Dismantling the Drawbridge

The Constitution’s black‑letter implications alone cannot withstand the tidal forces of technological power or perpetual emergencies. Only by invoking its spiritual hermeneutic—the Preamble’s incantatory pillars, the ritual of refusal, and the contrapuntal canon of civil‑rights dissent—can India’s supreme law remain transformative.

He ends on an urgent exhortation: “the future of republican democracy depends upon” our willingness to extend the Constitution’s spiritual covenant into new domains of digital governance, filling the moats of data‑driven exclusion and replacing castle walls with open gateways of choice and dignity.

Source: Bhatia, Gautam. (2019). The Transformative Constitution: A Radical Biography in Nine Acts. New Delhi: Harper Collins.