ALF 10th Anniversary Talk: Dr. Upendra Baxi
Good evening, Justice A.P. Shah, Justice Shylendra Kumar, distinguished colleagues from the Alternative Law Forum, including comrade Arvind Narrain, Lawrence Liang, Sruti, and other distinguished colleagues, friends, activists, and above all, those who have graced this occasion with such enthusiasm and presence.
I will make my statement very short and if I go over the hill, please do look sharply at me or make some non-verbal, but non-violent gestures and discipline me because I think Justice Shah has covered almost everything that I would have meant to say. So I divide my remarks and thanks, Lawrence, for your kind words. I am at the stage of my life where it's important for me to write myself a draft obituary of myself. And I think some of the words you said would be quite appropriate . . . so thank you. I think one of the human rights in search of being recognized as human rights, recognized a human right as I have sometimes said, is the human right of every one to have his or her draft obituary read by him or her before joining the other world. So I approve of certain critical elements in your draft and will adopt it.
I want to thank you all for inviting me and particularly for the companionship of Justice Shah, enhanced by the companionship of Justice Shylendra Kumar, who I know made an important eleventh hour change in his schedule to be with us. And that's the kind of grace and courtesy that we do not, as academics at least, experience from eminent and otherwise preoccupied justices, so I acknowledge your presence and I hope if there is time for discussion, you might want to say something in response.
My thoughts about what to say and what not to say have gone through several visions and revisions, because Lawrence and Arvind have been changing the titles of the theme and the latest one was courage, craft and contention and then the addition of judicial imagination and so on. So, first of all, I want to pay my tribute to the ten year old forum, as well as raise certain questions about where it may go in the next ten years. Second, I will just underline and support what Justice Shah has described as the new anti-public interest or anti-social action litigation with his permission and the permission of Justice Shylendra Kumar, I would name in two categories - one is Lakshman Rekha jurisprudence, which means that judges must not cross certain lines and second is 'cashewnut' jurisprudence, referring of course to quarter century old jurisprudence of Article 31 requirement of just compensation, to which I briefly refer to later. More recently and with great respect to Dr. Justice Katju, this trend now remains reinforced. I believe that His Lordship's various utterances on judicial activism—on and off the High Bench-- need to explored seriously.. . So with their Lordship's permission, I will trace these narratives briefly.
And thirdly, I wanted my talk to be absolutely Shah-centric, so I will speak to the Naz decision, which you all know and we've all applauded, but speak to it in ways that will ward off future dangers that might arise from the review petitions - and, also, if you don't mind my lords, from the affliction of what I call the politics of brotherly envy, which often plays a large part in reversals of good High Court decisions by Supreme Court justices. It is very important for me to take some time on that.
Alright first of all - well, fortunately I can't even read what I write although it's in bold font, so you are in a happy position. First, I want to celebrate the contributions of the Alternative Law Forum, and these are many. I think ALF has helped us understand different ways of approaching the constitutional idea of India. And it is only when we understand the constitutional idea of India that we can judge some unconstitutional conceptions of India, which are now emerging, especially from the Supreme Court as Justice Shah has so valiantly articulated, in the third part of his learned speech.
I think the ALF has also revised notions of what kind of society the Constitution makers envisioned and, I'm sorry I'm only marginally disagreeing with you, Justice Shah - I don't talk of 'founding fathers', but of 'confounding fathers', well, there were no 'founding mothers' in the constitutional assembly – though there was a notable presence of a few women in the Constituent Assembly of India. Normally, I refer to as CADs - CADs is a nice term meaning "Constitutional Assembly Debates." CADs not in the conventional English sense,of course because they had imagination of what India should be like
I think the ALF has, in several ways contributed to the idea of a constitutionally desired society. I have in view especially the distinctive development by the ALF of cultural study of law - not just a law and society type of study. The ALF has developed a very rich understanding of a pluralistic conception of good life under the Indian Constitution. I mean precisely the concern for plurality and pluralism, that's very important. The ALF has also quite rightly endeavored to displace the dominant idea that justices, lawyers, and academics may be granted the sole privilege to be the custodians of the constitutional idea of India. I think they rightly question and displace this idea. The ALF has done many exciting things with many other organizations not necessarily based in law or mired in law, especially in the companion ship of the Centre for the Study of Social Sciences and I salute the colleagues from the Centre including eminent names such as Tejaswini Niranjana, Ashish Rajadhyaksha and Sitaramam Kakarala. In addition, if I may say so, Lata Mani, Rajeswari Sunderrajan, Ram Guha have also made notable inspirational contributions to the ALF.
So I think there's a spread of, shall I say with adequate care, a spread of a new politics of intimacy, which makes ALF very rich indeed in so many ways. I want to nudge the forum to three questions in terms of the three key words in their organization. What in the next ten years may the forum want to mean by "alternative"? Does it really mean transformative, that is bettering a bad situation? Or does it mean emancipative? Is emancipation from oppression, from injustice, from structures of domination - is there a utopic imagination at work or will there be one at work in the next ten years?
The second question concerns the word, "law," and I just want to remind ourselves of what Michel Foucault said that, very often when we contest, when we think of transformative law and action, we ought to be aware that using law as 'tactics', may result not in any emancipation but merely and in his words, "passage from domination to domination, and not from domination to emancipation." So what kind of legal imagination would you develop in the next ten years ?
And, concerning the word, "forum" in ALF - what kind of forum would it like to be in the next ten years? Now I have dwelt on this in my written text that should be with you shortly. I hope it will also be translated in Kannada, that will be an incentive to learn the language, although I fail to respond to that incentive when several of my articles were translated in Japanese in books and they just kept on sending me copies and I couldn't see why they were sending me copies. Then I asked my friends in Tokyo and other places - he said "Oh, we have painstakingly translated your work and you…" ! And I think the question of translation is certainly important.
So what is this forum? Is this forum what is called a deliberative public reason, which is involved in representative institution, judicial work, and so on, in civil society? What then is public? Is it a kind of exercising public reason or if it so, what is the non-public reason, as opposed to public reason? And I follow here John Rawls who says non-public reason is reason of autonomous institutions like universities, scientific organizations, religious groups and so on – they are accountable to their own members, but not accountable to the state, that's why it is called non-public. I do not know where to fit Union Carbide Corporation in this landscape. Do you?
The second question I have in relation to this is public reason. There always is a reason or passion or sentiment as well. I think, if you look at human rights, it is not deliberative public reason but it is passionate, engaged, concerned, committed reason. Therefore, the unreason of human rights is the most important human resource you have to contest the reason of neoliberalism. So there's a kind of deliberative reason which is different from public reason.
Finally, how will the forum want to speak to –what I call- insurgent reason? Now insurgent reason is different from public reason, which is based on stability and control and normalcy, insurgent reason shakes the foundations of the society and of political economy.
And we don't need to be puzzled by this term-- insurgent reason-- because we have deployed it several times over. So have so many countries in Asia, Africa and Latin America and other parts of the world which have developed the collective practice of insurgent reason when challenging the right of the white men to occupy our lands, territories and peoples – that is, colonization. Struggle against colonization was in fact the very act of insurgent reason which founded the Indian Constitution and, therefore, I don't think insurgent reason is not what – what's the name of our home minister? I don't have a memory for ministers' names. (from audience-Chidambaram) Chidambaram. He says, if you express a view contrary to what security of the state requires, you are an extremist. That is not an assertion of human rights. I think he, and we all, must read history better- and more clearly.
Insurgent reason is the foundation of India becoming independent. Otherwise, we would have still be governed by the British India Act of 1935 and we would still have been Her Majesty's subjects. So only those who don't understand the history and passion and the logic and the gift of insurgent reason may name as bordering on sedition or treason.
It is a carefully cultivated though entirely erroneous view that equates insurgent reason with mindless violence, killing innocent peoples and so on. No doubt, the project of revolutionary violence directed an overthrow of ancien regime such as the American, French, and the Russian revolutions have justified themselves in terms of an ethical project of violence. Yet, justification of 'ethical violence' remains always hard work, often revisited by values and standards of retrospective morality.
Forgive me if some of you think otherwise that the present day Indian 'Maoists' have developed or offered to public view their violence as ethically justified ,either in terms of 'ends' espoused or 'means' deployed. They have, to the best of my knowledge, not offered alternative constitutional utopias. Nor, as notably K. Balgopal educates us all, they have able to transcend the mediocre politics of competition for fractional power. Please do not get me wrong: these facts do not in turn justify anything- goes type of state reprisals , especially when the State acts in terms of collective human security based on human rights and logics of 'inclusive development.'
Moving on, insurgent reason more often than not pursues an ethical project of peace, harmony and a solid civil disobedience.
Now I'm already done with my ten minutes, I'm sorry. Let me now skip everything about imagination. I'll skip it because it's a very imaginative addition to the subtitle, I mean imagination comes in several forms- there could be nomadic imagination and a settled imagination. There could be romantic imagination and prosaic imagination. There could be insurgent imagination and there could be conformist imagination, there could be utopic imagination and dystopic imagination. I'm not a literary cultural theorists like some of you present here. But I can think from the edges of law that imagination is not merely a self evident notion. And I think what is going on today, as Justice Shah so remarkably and lucidly pointed out in the nineties, is a conversion of utopic into dystopic imagination—the conversion of the idea of a constitutional India into an idea of unconstitutional India.
And that it happens at the hands of otherwise distinguished and eminent justices and not by sundry politicians is a matter of profound perplexity and regret and I think that's why we need justices like Justice Shah and Justice Shylendra Kumar. We need not always be anxious about what the Supreme Court of India does or doesn't do with its high powers. There are a number of appellate forums and justices and I'm sure that the time has come when we ought to study (the Alternative Law Forum especially) the patterns of judicial activism in Indian High Courts and how it has influenced the upper level, upper crust of social action litigation or activism in the Supreme Court.
Now, let me come to the two aspects I promised. What is Lakshman Rekha jurisprudence that Prime Minister kept reminding the outgoing Chief Justice – Balakrishnan. Every time at the Chief Justices' meeting, the Prime Minister --and we have moved from 'N' to 'M'—from Nehru to Manmohan. You know and Nehru had great trouble with judicial review. He in, fact, after introducing the First Amendment, he said this magnificent edifice of the Constitution that we build has been purloined- stolen by the justices and lawyers and that's why I created the First Amendment - we say no judicial action on Ninth Schedule and then his distinguished daughter expanded the ninth schedule in a way the distinguished father did not intend.
But with Manmohan Singh, the current Prime Minister, the language is curiously that of Lakshman Rekha. What is Lakshman Rekha? First, for all it's a very Hindutva notion. Forgive me if you think I am making a politically incorrect remark. This is a language of abandonment! Whether or not , Ravana took Sita with wicked intentions or otherwise, I don't know. There are different interpretations of the Ramayana as to why he took Sita away.
Regardless, the Rekha arises because of multiple abandonments: Lord Ram had to go for some urgent work. And Lakshman had also to go in search of him; and so he said look I'm putting a mythical line which you shall not cross, otherwise all hell will let loose. Sita crossed the bright line because of her obedience of dharma: after all the Brahmin may not be denied alms.
How may we constitutionalize this narrative? We must surely ask of eminent peoples who use this imagery, who are the constitutional equivalents of Rama, Sita, Lakhsman, and Ravana? What is Lakshman Rekha? And what Dharma values, norms, and standards remain impaled in this narrative (recall, please that the last time we heard of this bright-line was from Atal Bihari Vajpayee who effetely counseled Chief Minister Narendra Modi to follow the Raj dharma even when Gujarat was in flames.)
In secular languages of state as formed by the Constitution, all this hyperbole means that that Justices may not usurp constitutional powers of coordinate branches of governance. The motto is stark: 'No usurpation of powers.' What is usurpation of power? Who decides that - the supreme executive or the supreme judiciary? As our Justice Shah remarked, our Constitution is the largest written constitution in the world and its true – I've not counted the words. But it goes to such extent as to define everything. The definition clause in the constitution says even this – the word "part" in this constitution shall mean the part of this constitution. Why did they do it? Because they didn't want judges to come in. Now the confounding fathers were not students of literary theory or religious interpretation or semiotics. They forgot that the more words you write, the more judges come in. And that's exactly what has happened. Of course, there's a short constitution of United States, and judges are still coming in. So you can't really help it. Like the saints go marching in, the judges keep coming in. And you know more words, more interpretations; more interpretations by the judiciary, the more the shift in the balance of power, hope and expectations for a more just society. To the extent that justices want to do this and they have done it in the past and they might be renewing themselves for the future.
Lakshman Rekha is an old idea of separation of powers and ever since 1950 Re Delhi Laws Act case (Advisory Opinion), the Supreme Court (nine judges) has said that we do not have a strict separation of power. So what is this Lakshman Rekha, where do they get it from? Lakshman Rekha is not merely mythical, translated in terms of neoliberal policies. And what Manmohan Singh, the economist, is saying to judges that when it comes to macroeconomic policy decisions, you don't come in. You can come in here and there for unorganized labour, rickshaw wallas and so on. But if you 'overdo' it like Justice Shah did it, we won't take you into Supreme Court.
He's not bothered; we're not bothered. It's the loss of the Supreme Court and to the nation and we're sorry for it. So what Lakshman Rekha has is a discipline and punishing kind of thing - judges must not speak to economic policy or globalizing policy. They may do other valiant things , of course! So they can interpret the Sales Tax Act. The Sales Tax Act is a wonderful document. It has a schedule, in which there's an expression – sag, sabji and tarkari – which means vegetables.
And before our judge Justice Bhagwati became an activist, he was an authority on the interpretation of the schedule and there was a question – whether green ginger is a vegetable, if it was then it would be subject to sales tax. And Justice Bhagwathi wrote a long judgment in which he quotes Viscount Dilhourne in 1875 in Britain – "words must be interpreted in the way in which they are understood by the people." Today we cannot even say commonsensical things accepting the reference to the colonial jurisprudence. Anyway, so what happened – Bhagwati said ginger is not a vegetable. I went and asked him do you know any Bengali? Whose language is the common people's language? Well these kind of things judges can do; but don't let them not come in on disinvestment, denationalization and deregulation. They are three Ds of globalization in Indian style. They can't come in say the Lakhsman Rekha folks
The trouble with Lakshman Rekha also is – I don't know whether you use them in your homes- well I've seen them in house where I stay, that it is an effective antidote to cockroaches. If so, the question emerges fully and vividly Is the doctrine of separation of powers now pressed into service as a kind of pest control on judicial activism? Does after all the learned Prime Minister thus advocate what may be named as 'entomological jurisprudence?'
What about 'cashew nut' jurisprudence. I have in mind particularly the long line of decisions concerning the right to compensation for acquisition of property. It took nearly a quarter century of Supreme Court interpretation and constitutional amendments to settle the meaning of the word 'compensation.' For a while, Justices said that compensation equals full market value plus solatium; then with the Amended Article 31 which substituted the term 'compensation' with the term 'amount,' Justices came back and said: 'Look, amount has still to be determined by law and the law must do this by taking certain principles into account!' And what could the principles mean if not just compensation? In commenting on the decision of another famed Justice also named Shah [in my article entitled State of Gujarat v. Shantitlal Shah] I said in 1979 that what their Lordships of SCI are saying is that that you may not acquire palaces by offering a bag of peanuts nor acquire castles with an offering of cashew nuts! This when the jurisprudence of cashew nuts began!
In the more recent times, Dr. Justice Katju -an extraordinary judge- further pursues this sort of jurisprudence He doesn't believe in the continuity in the past, which is not always a good thing. So, as the folklore runs, when lawyers cite his judgment in the Allahabad High Court, he said – "oh but that was a different time." I think we should all value discontinuity. That's not a problem. I don't know how you did that Justice Shah, you have passed so many judgments because you were in so many High Courts.
But, I think Justice Katju has a problem. He thinks judicial activism is a mistake and social action litigation is a blunder. This is the sum and substance of it. This has happened earlier, but in a very different way. Brother Venkataramaiah from Bangalore, a saintly judge, raised ten questions on public interest litigation in the Sudipto Majumdar case that now does fall in the power of Supreme Court etc. We sunk those ten questions by asking Chief Justice Chandrachud to send to 1000 poor people's organizations, the entire paper book of that case and asked for legal aid for each of the 1000 to represent their cause in this petition. And of course later on, Chandrachud told me privately that he could not simply cope with this astonishing demand and persuaded brother Venkataramaiah not to press him, and the matter was solved.
But, a different kind of concern than expressed then is now expressed by Justice Katju. What Brother Katju is essentially saying is that ours is a globalizing constitution. Our Constitution has fundamentally changed. What was done in the past is not our concern. Now we have to limit the power of judges as far as humanly possible. And he's in good company.
Among his own brothers, there was Dr. Justice Arijit Pasayat who in a Bangalore case – Uma Devi – became a constitutional Duryodhana. You know Duryodhana? What did he do? In a case of a contract labourers hired for 20-25 years, suddenly being dismissed , when they went to the SCI saying – this goes against a long line of decisions. Please do something about it. Please stop them.' What did Dr. Pasayat say? He says - "I hereby denude all previous precedents of this court of their authority." Now to denude – this is the first time nudity appears in the Supreme Court. Now denude means Ne-vastrikaran. This is astonishing. Which past decisions are you overruling? Why are you overruling, are you overruling all of them? To this question the judicial response seems to be 'No, I'm denuding them.' Now this was never heard elsewhere. Similarly, in the Bangalore water supply case, Their Lordships say now that it needs reconsideration because over protection to workers stands in the way of current visions of development of India.
Mind you, this is not actually what they said. This is what they are saying without saying it – look at the reference – so there is, what I've called, in place a tendency, if you've heard the expression, structural adjustment, imposed by the IMF and the World Bank on our country. Here is a case of structural adjustment of Indian judicial activism. And this is the trend the cashew nut jurisprudence actually promotes, and it is a matter of great, great sorrow and anxiety.
Now I will end in five minutes. Justice Shah, I regard you as a later day avatar of the four musketeers of Indian activist jurisprudence. The four musketeers were Krishna Ayer, Praful Bhagwati, Chinnappa Reddy and D.A. Desai, which didn't mean there weren't others. Unlike you, they flourished in the good times of social action litigation. Whereas Justice Shylendra Kumar and Justice Shah had to function in bad times of judicial activism. And the fact that Justice Shah performs so eminently well is not merely welcomed and applauded but is to be amplified as a new life - a possibility of new life for judicial activism in a hyper-globalizing India. And I think this where we, besides celebrating you, we have to find ways of archiving, remembering, analyzing, narrating the techniques and the craft that you and other colleagues are using to preserve the legitimacy of judicial activism.
Everybody knows the Naz decision. The Naz Foundation decision is of as great importance to the future of human rights and Indian constitutionalism as was the decision in Kesavananda Bharati. Kesavananda said that you cannot change the basic character of the constitution just as you wish; and Naz says you will not deny dignity and plurality or plural conceptions of life; that you will not impose a unilateral tunnel vision comprehensive conception of good life. What Naz does remarkably well is to say that dignity is a part of the basic structure of the Constitution and dignity means respect for plurality. And plurality means respect for justice. You take every individual person and her life plans, and her desires and her projects as equally worthy until such time as it begins to harm others (The Harm Principle).
It is not only in Naz that Justice Shah has dealt with dignity. Dignity has been his signature tune. He has moved from a juristic or legal conception of dignity to relating dignity to justice. I read Naz as a marker of a movement from law to justice.
Many religious groups have a strange misunderstanding of what Naz decided. They say Naz is endangering their core religion and practices of faith. I do not think the court has done any such thing. The court has only read down a section in the penal code and said that certain forms of consensual adult sex should be decriminalised. The court has said nothing more and therefore how is any religious belief affected?
If one were to say that God would be angry with Justices Shah and Muralidhar who wrote the decision, all those who stand here assembled may not escape His wrath as well! On that rationale even your presence here with Justice Shah might be punishable, so you might have to do some penance at the end of the day if you are a believer. Yet, may I say to the communities of faith: Nothing in religion is affected; no right of religion under Article 25 has been affected.
Then there is the second misconception that when the judges in Naz are talking about constitutional morality it is the thin edge of the wafer. Critics say that once you allow decriminalization on the ground of dignity and privacy, tomorrow constitutional morality will take away their right to identity, cultural specificity and difference and India will become a godless, religion less society. While this might be a clever argument to develop as a lawyer, I think this argument is wrong. Giving full credit to Justice Shah and Justice Muralidhar for speaking so eloquently about constitutional morality, does not really mean that they have invented this notion of constitutional morality. Surely, the doctrine of constitutional morality does not begin with Naz. It was always there. Directive Principles of State Policy (Part IV), the Preamble, Fundamental Duties of Indian citizens (Part IVA), the restrictions in Article 25 that one's conscience and religion may be restricted in the name of morality. So what Naz achieved was to explain a concept that was already immanent in the constitutional text itself. The judges have not invented anything that the Supreme Court can then review.
Then there is the argument which very learned colleagues of mine have been making. They have been saying that Naz was bound by previous Supreme Court decisions in Kharak Singh on the right to privacy. I am surprised that my colleagues can even take that view. There are two kinds of rights in India – one kind of rights belongs to the realms of written/scripted rights. The other kind of rights belongs to the realms of judicially invented rights. They were not written in the Constitution. E.g. 'Due Process, in Maneka Gandhi, the right to speedy trial, right to bail, and the right to housing. Justice Shah mentioned almost all of them.
When we are dealing with a judicially invented right, it is not right to say ' Follow the precedent'. High Courts have equal jurisdiction and power to interpret a judicially invented right. Then how can the Supreme Court tell the High Courts how they should follow precedent when they have made mincemeat, or kitchdi of the doctrine of precedent. I have never seen such an 'unprecedented' court as the Supreme Court of India! This is not any slanderous remark but one based on a close study of the SCI over thirty years and full developed in my writings
So the question then is not of precedent but of the reflexive power to collectively, among all appellate justices, to expand the meaning of judicially invented rights, and therefore I think these critics are entirely mistaken. The traditional stare decisis doctrine does not and may not apply.
Now let me end with an invocation. I think what the activist judges are, how we describe them, past, present, and I'm sure future, they are connoisseurs of the Constitution. Elsewhere in my writings, I have made fervent pleas for development of the ways of socially responsible critique of judicial performance. I hope at least that ALF folks will make a beginning in listening to these!
I'll end with great verse of poet Ali Sardar Jaffrey (saheb) who recently said the following. I read this in English and please follow me carefully because this is a tribute to Justice Shah and his resilience and also a challenge and summons to each one of us assembled here. Jaffrey saheb writes, and this applies to globalizing India as well- there are a number of resonances here. Please listen carefully. I'll read slowly:
We hear that governance now will have a different cadence
Tyranny will now be the protector
Cities will be without walls or doors
Innocence will now be a punishable crime
Judges will profess ignorance of criminal deeds
Executioners will be in charge of funerals
Killers will organize mourning
If this be the realization of India's dreams
Then soon will be neither India nor its connoisseurs.