Green fellow spotlight: Dr Gautam Bhatia

Dr Gautam Bhatia has joined UNSW Law & Justice as one of the first Green Fellows, based in the School of Global & Public Law. An expert in constitutional law, Bhatia joins UNSW from India’s Jindal Global Law School. During his Fellowship, he will work with leading researchers at the Gilbert + Tobin Centre of Public Law, the UNSW Resilient Democracy Lab, as well as the wider faculty.

The Green Fellowship is a prestigious international program that brings leading researchers from around the world to UNSW to undertake high-impact research, collaborate with leading academics and build meaningful international partnerships. Named in honour of Scientia Professor Martin Green, the highly competitive program supports scholars working towards solutions to some of the world’s most pressing challenges.

What attracted you to the Green Fellowship Program at UNSW, and what does being selected mean to you at this stage of your career?

I’ve been coming to UNSW for a few years for the December comparative constitutional law round-table, and the I-CON Winter/Summer School. I’ve loved being here, and I’ve found the faculty to be generous, inclusive, and rigorous. The Green Fellowship gives me a chance to deepen some of those intellectual collaborations, and also the time and space to go deeper into my own research, after many years of being at the intersection of constitutional law practice and constitutional law scholarship.

What are you most looking forward to during your time at UNSW Sydney, both academically and personally?

Academically, I’m looking forward to developing my monograph on comparative constitutional law and the critique of political economy, and to completing a couple of big editing projects: the Cambridge Companion to the Indian Constitution and the second edition of the Elgar Handbook on Comparative Constitutional Law, with Ros Dixon.

Personally, I’m looking forward to the various reading clubs I’ve joined, affiliated with Sydney’s bookshops such as Better Read Than Dead and Jura Books. I’m also looking forward to discovering the outdoors around Sydney, such as the Blue Mountains.

Research and Career

Your research spans comparative constitutional law and political economy. What first drew you to these areas, and what continues to motivate your work?

My PhD thesis at the University of Oxford was about horizontal rights, which drew me into issues around the political economy, since they inevitably involved questions of private power. My constitutional law practice involving socio-economic rights likewise impressed on me the importance of a critique of political economy approach towards doctrinal constitutional law.

Recent – and pretty plural – intellectual developments such as the rise of the LPE movement, of the material constitution school of thought, and the revival of Marxist-Pashukanist approaches to the legal form have also informed my approach.

You have worked on significant constitutional cases involving civil rights, freedom of speech and expression, and the federal structure. Looking back, which experiences have had the greatest impact on your thinking as a scholar and practitioner?

Most of the constitutional cases I’ve been in have been very impactful for me. Perhaps the one that really opened my eyes to a lot of things was my involvement in the ‘Article 370 case’, which involved the removal of the constitutionally guaranteed autonomy of Jammu and Kashmir. Working on that case made me understand the necessity of understanding constitutions as power-maps, and placing the question of power front and centre in constitutional analysis.

What have you learned from working both as a scholar and as a practitioner?

I think it’s been a case where the practice informs the scholarship, and the scholarship informs the practice. Drafting a submission before the court, I draw a lot on scholarship. I was involved, for example, in a free speech case in the Bombay High Court a couple of years ago which I was arguing and extensively drew on South African free speech law because that was very advanced and very good.

I was also involved in a case on housing rights, and so again, drew on comparative constitutional law work to try and evolve doctrine in a progressive and more egalitarian direction.

My last book was about how the Indian Constitution is a document that has a very specific vision of power and those insights were entirely gleaned from seeing it play out every day in court in these kinds of constitutional cases where these were contested questions. So that was drawn entirely from experiences in practice.

I think in that way it’s very symbiotic. They both act on each other and always have.

Joining UNSW

During your fellowship, you will be developing a new book examining key concepts of comparative constitutional law through a critical political economy lens. Can you tell us about the project and what you hope it will contribute to the field?

In this book, I will be interrogating some core concepts in comparative constitutional law, such as meaningful engagement in socio-economic rights litigation, proportionality, ‘the People’ and so on, using the critique of political economy and the theoretical framework of Evgeny Pashukanis as a frame.

So, my book will be within the emerging tradition of LPE, the material constitution, and the revival of Pashukanis’ thought, while continuing to engage in rigorous doctrinal analysis.

The idea is to help clarify both the potential – but also the political economy-imposed hard limits of the rights framework in modern constitutional thought.

As a Green Fellow, you will be contributing to the UNSW Resilient Democracy Lab and the Gilbert + Tobin Centre of Public Law. What excites you most about collaborating with these centres?

The interdisciplinary and ecumenical character of these centres makes intellectual exchange very fruitful. I’m looking forward to a range of activities, including reading groups and conferences.

You will also be supporting a strong cohort of PhD students. What do you enjoy most about mentoring emerging researchers?

Having received the benefit of excellent supervision during my PhD, from Professor Sandy Fredman, and having had a wonderful cohort that met every week, I’m keenly aware of how important it is to create a good and collaborative environment for PhD work.

What I’m looking forward to most is ensuring that the students I supervise have that environment.

Beyond your current projects, what are the big questions in constitutional law that you hope to explore in the years ahead?

I want to centre the critique of political economy in our understanding of constitutional law, while continuing to work within a doctrinal and comparative framework.

I think this will be especially helpful when we confront what will undoubtedly be the big questions in the coming years – the climate catastrophe, inequality, and State-sanctioned violence.

It will be particularly important to have clarity both on what constitutionalism can do – but also on what it can’t do – to address these issues.

When you look ahead, what would you like your work to be remembered for?

That it was thoroughly grounded in the material realities of the world and was intellectually honest.