Skip to main content

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.”
---
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

TRENDING

August 22 to be observed as Apostasy Day: International coalition of ex-Muslim groups

By Our Representative
In a unique move, an international coalition of ex-Muslim organisations has decided to observe August 22, 2020 as the Apostasy Day. To be observed for “the abandonment or renunciation of religion”, the coalition, calling upon people to join the call, said, the decision to observe the Apostasy Day has been taken because of apostasy is “punishable by death in Afghanistan, Iran, Malaysia, Maldives, Mauritania, Qatar, Saudi Arabia, Somalia, UAE, and Yemen.”

Buddhist shrines massively destroyed by Brahmanical rulers in "pre-Islamic" era: Historian DN Jha's survey

By Our Representative
Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book, "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

RSS' 25,000 Shishu Mandirs 'follow' factory school model of Christian missionaries

By Bhabani Shankar Nayak*
The executive committee of the International Union of Anthropological and Ethnological Sciences (IUAES) recently decided to drop the KISS University in Odisha as the co-host of the World Anthropology Congress-2023. The decision is driven by the argument that KISS University is a factory school.

India must recognise: 4,085 km Himalayan borders are with Tibet, not China

By Tenzin Tsundue, Sandeep Pandey*
There has as been a cancerous wound around India’s Himalayan neck ever since India's humiliating defeat during the Chinese invasion of India in 1962. The recent Galwan Valley massacre has only added salt to the wound. It has come to this because, when China invaded the neighbouring country Tibet in 1950, India was in high romance with the newly-established communist regime under Mao Zedong after a bloody revolution.

Time to give Covid burial, not suspend, World Bank's 'flawed' Doing Business ranking

By Maju Varghese*
On August 27, the World Bank came out with a statement suspending the Doing Business Report. The statement said that a number of irregularities have been reported regarding changes to the data in the Doing Business 2018 and Doing Business 2020 reports, published in October 2017 and 2019. The changes in the data were inconsistent with the Doing Business methodology.

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur*
Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Delhi riots: Cops summoning, grilling, intimidating young to give 'false' evidence

Counterview Desk
More than 440 concerned citizens have supported the statement issued by well-known bureaucrat-turned-human rights activist Harsh Mander ‘We will not be silenced’ which said that the communal riots in Delhi in February 2020 have not been caused by any conspiracy, as alleged by the Delhi Police, but by “hate speech and provocative statements made by a number of political leaders of the ruling party.”

WHO chief ignores India, cites Pak as one of 7 top examples in fight against Covid-19

By Our Representative
In a move that would cause consternation in India’s top policy makers in the Modi government, Dr Tedros Adhanom Ghebreyesus, World Health Organization (WHO) director-general, has singled out Pakistan among seven countries that have set “examples” in investing in a healthier and safer future in order to fight the Covid-19 pandemic.

Tata Mundra: NGOs worry as US court rules World Bank can't be sued for 'damages'

By Kate Fried, Mir Jalal*
On August 24 evening, a federal court ruled that the World Bank Group cannot be sued for any damage caused by its lending, despite last year’s Supreme Court ruling in the same case that these institutions can be sued for their “commercial activity” in the United States.