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Upendra Baxi on foolish excellence, Indian judges and Consitutional cockroaches

By Rajiv Shah
In a controversial assertion, top legal expert Upendra Baxi has sought to question India's Constitution makers for neglecting human rights and social justice. Addressing an elite audience in Ahmedabad, Prof Baxi said, the constitutional idea of India enunciated by the Constituent Assembly tried to resolve four key conflicting concepts: governance, development, rights and justice.
However, he regretted, there has been a disproportionate emphasis on governance and development, even as undermining the two other key factors, rights and justice. According to him, while 90% of the Indian Constitution is about governance and development, only 10% of it is about rights and justice.
Prof Baxi's strong words on India's Constitution makers, though without naming them, crucially come at a time when a new wave of appears to have engulfed India in defence of the Constitution against the backdrop of the Government of India's new Citizenship Amendment Act (CAA) and the proposed National Citizens Register (NCR), which allegedly seek to make religion as the basis of granting citizenship.
Those protesting against CAA and NRC are found to be strongly "defending" the Constitution, especially Article 14, which promises equality before law irrespective of religion, caste, creed, sex, race or region, even as swearing by Gandhiji and Dr BR Ambedkar.
The observations also come against the backdrop of alleged failure of the country's apex court to examine use of force to suppress the resistance in every possible way, whether in Jamia or Uttar Pradesh. Nearly 25 persons demonstrating against CAA-NCR have died, while scores have been injured.
Prof Baxi, 81, who is professor emeritus of law at the University of Warwick, United Kingdom, and has been vice-chancellor of Delhi University, was delivering the Dr Ashok Hirway Memorial Lecture, organised by the Centre for Development Alternatives (CFDA), Ahmedabad, on December 23. Husband of well-known economist, Prof Indira Hirway, director, CFDA, late Dr Ashok Hirway did his PhD in law at the age of 75.
While reading out from his written lecture (click HERE to read), which several scholars in the audience, including a top social scientist, termed as "highly abstruse inquiry", Prof Baxi often diverted to make several major observations. 
Prof Baxi's statement comes at a time when those protesting against CAA-NRC are opposing 'dilution' of Indian Constitution
Titled "The Directive Principles of State Policy, Fundamental Duties of Citizens, and Human Rights: Fools Rush in Where Angels Fear to Tread", Prof Baxi sought to "suggest" during the 45-minute lecture that India's constitution-making "preceded at least by six decades of the Indian freedom struggle", which is ushered in a new India, "an era of foolish excellence."
Wondering as to why human rights and justice are mainly a part of the Directive Principles of the State Policy, which are legally not enforceable but are merely a moral binding, Prof Baxi, indicated, very few duties had been made legally obligatory in the Directive Principles, one of them being being making Right to Education (RTE) compulsory.
Emmanuel Levinas, Amartya Sen
Prof Baxi referred to Nobel laureate in economics and a strong critic of the present BJP dispensation in India, Prof Amartya Sen, who developed the notion of “rational fools” in the context of the “economic man”, which in turn is analogous to a similar term floated by a well-known philosopher of the last century, Emmanuel Levinas. Levinas, said Prof Baxi, “reminded us of the virtue of ‘foolish excellence’.”
According to Prof Baxi, “If Amartya Sen was questioning the model of the ‘economic man’ as an egoistic being always intent on maximizing his or her preferences devoid entirely of sympathy or commitment to the plight of others, Emmanuel Levinas was concerned with development of an ethical philosophy that accorded non-negotiable responsibility towards the vulnerable other.”
Given this framework, the top legal expert said, what we have today in India is a legal system where Supreme Court judges, through their “foolish excellence”, remain the best option for democratizing Indian governance, especially at a time when the legal system seeks to defend the owners of the capital, not caring for anything but profit and the present, unmindful of the past and the future.
Pointing out that "our justices are no constitutional cockroaches subject to any Monsanto-like spray on the constitutional idea of India", Prof Baxi said, judges are often misunderstood as Brahmins, who sit at the very top hierarchical structure, and hope still lies with them for providing access to justice, at a time when effort is on only to empower the already empowered.
Offering the example of Gujarat in this context, where there is a law that allows defamation suits filed for a mere Rs 75,000, which is peanuts for the corporates, one reason why they all rush for it in the state, he underlined, this significantly helps “suppress dissent.”
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Click HERE to download prepared lecture of Prof Baxi

Comments

Upendra Baxi said…
Regarding the above story, it is clear that the learned corrspondet totally misunderstood my speech and I will urge you to carry as an antidote the entire text of it.
Far from calling the learned Justices as ‘constitutional cockroaches’, I said that charges of constitutional overreach are wrong and misdirected .I stated that all the talk about Laxman Rekha can be understood as a chemical used by housewives to kill cockroaches and further that our Justices are no constitutional cockroaches subject to any Monsanto -like spray on the constitutional idea of India.
I did not say, in response to a question about access to justice, anything that would reproach the apex justices for being an aspect of Brahmanical hierarchy but said rather that litigant and lawyers rendered the problem of access to justice more complex by almost always recoursing to the Apex Court; they seemed to believe that truth always lay at the top. Indeed, I cited precedents which judicially recognized access to justice as a fundamental right and access to judicial infrastructure also as a such right.
The learned correspondent also got the observations wrong ot lowering the court fees for libel suits.The fees were determined by the State legislature which amended the Central Act in the name of access. The law then acted to enable industry to bring large damages suits with a chilling effect on the freedom of press.
I think these instances are glaring enough to suggest that my talk was understood in the light of thoughtless public criticism about Justices and Courts. The Justices have done a rather a commendable job of preserving our basic rights though constitutional interpretation.
I again request you to carry the full text of the speech to rectify many misunderstandings and misrepresentations.
Editor said…
We have made necessary corrections in the light of Prof Upendra Baxi's objections. We have also given link to his lecture distributed to the audience

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