By Lokendra Malik and Shaileshwar Yadav
Professor Upendra Baxi, an eminent legal philosopher and public intellectual, is among the few names which have impacted Indian constitutional and human rights jurisprudence. His academic works are spread across various fields, including human rights, constitutional and legal philosophy and issues relating to the exercise of judicial power and accountability. Prof Baxi has also contributed substantially in influencing the decision-making process of the Supreme Court of India.
His writings can be found at the intersection of human rights and constitutional law while arguing for judicial accountability. The apex court’s decisions are scrutinised the most regarding judicial accountability compared to other constitutional courts. Being the highest constitutional court in India, the Supreme Court must produce judgments that mould the idea of law without lacunas.
In a contemporary legal scenario, especially with ever-growing debates on varied subjects, the Supreme Court has borrowed the understanding of eminent scholars from the field. On this note, it is quintessential to celebrate Prof Baxi’s outstanding contribution—whose writings have shaped law by both scholarly works and academic activism.
The Supreme Court has often cited Prof Baxi’s writings while deliberating on critical human rights and constitutional law issues. The Constitution in its Preamble declares India to be a secular state, yet the constitutional text does not give any definition of the word secularism in the context of a varied nation like India. This lead to a lot of confusion, which was settled when the Supreme Court provided a definition of secularism in the landmark ruling of SR Bommai vs Union of India (1994), wherein the nine-judge Constitution Bench while discussing the contours of secularism in the statute cited Baxi’s jurisprudential works. The Court, while explaining secularism, borrowed what he had to say about this concept in the Constitution.
As Baxi’s scholarly work, “The Struggle for Re-definition of Secularism in India”, explained, secularism is a state of affairs where the public revenue is not used to promote any religion and where the State does not espouse or practise any religion.
Even when essential aspects of law-making and delegated legislation are discussed inside the halls of the apex court, references are made to Baxi’s scholastic works. In Avinder Singh vs State of Punjab (1978), a bench led by the legendary Justice VR Krishna Iyer quoted Prof Baxi’s work from a seminar paper explaining delegated legislation. He explained the law-making process as an exclusive prerogative of a small cross-section of elite and emphasised that there should be a social audit of significant legislation by the beneficiaries or, more generally, the consumers of legal justice. Baxi’s idea of social audit could be seen in a new kind of approach adopted by the government, wherein draft bills are released beforehand for public consultation, followed by serious comments by the stakeholders, thus establishing responsible governance.
In Kapila Hingori vs State of Bihar (2003), the Supreme Court explained the term “life” as used in Article 21 of the Constitution. It held that life is a comprehensive and far-reaching concept. It includes livelihood and many other facets; it is more than mere animal existence. The inhibition against deprivation of life extends to all those limits and facilities through which life is enjoyed. To ascertain the accountability of the State in this case, corresponding to the right to life, the Court took the approach of human rights. In doing so, it relied on Prof Baxi’s famous book “The future of human rights”. Professor Baxi demonstrates in this book that a progressive state does not derive the concept of good governance from its history of resistance to colonisation and imperialism, nor from its internal social and human rights movements. However, effective governance may be achieved through the institutional gurus of globalisation who have been shielding global capital from political instability and market failures.
A Constitution Bench of the Supreme Court in KS Puttaswamy vs Union of India (2018), while upholding the right to privacy as a fundamental right, relied heavily on Professor Baxi’s scholarly writings. The Court called upon his works to understand the fundamentals of how a new right could be brought into the constitutional realm, the rule of law, and, most importantly, human rights questions. Identifying privacy as a fundamental right was a progressive decision to take in a technologically advanced world. However, the question is how rights are born?
According to Prof Baxi, the sphere of human rights is widening; he calls it “new rights arise from the womb of the old”. On his take on the rule of law, he writes the substantive themes of the Indian Constitution to be four sovereign virtues—rights, justice, development and governance. He notes that they are intertwined and interlocked with the rest and in a contradictory combination with both the constitutional and social past and their future images.
Development remains the leading aspect of constitutional vision, not just in economic growth but in the sense that deprivation, destitution and oppression that plague an individual’s life are eradicated. Going into the debate of understanding human dignity as a crucial factor in society and its philosophical approach, the Court referred to the explanation given by Baxi on the relationship between self, others and society.
According to him, dignity is respect for a person based on the principle of freedom and the capacity of making choices. A good or just social order respects dignity by assuring contexts and conditions as the source of free and informed decisions. Another exciting debate that the Court thought of delving into was “bread versus freedom”—the right to remain human. Citing the famous work of Professor Baxi which is entitled as, “From Human Rights to the Right to be Human: Some Heresies”, the apex court concluded that the presumption of choice between bread and freedom is a false antithesis. The ostensible challenge of picking one out of bread or liberty would be solved when balancing is used. Prof Baxi deciphers this as not an abstract choice between “bread” or “freedom”. Instead, who has how much, for how long and at what cost. For instance, some have freedom but not bread; little bread but no freedom or both freedom or bread. This attempt to decipher this cumbersome debate saved the Court from going in the inexact direction.
An attempt to find the scope of Article 21 was further initiated in Common Cause vs Union of India (2017). The Court in Common Cause deliberated whether the right to life includes the right to die. In doing so, the Court came across a substantial question from the intersection of constitutional law and human rights. Addressing the complex issue of allowing euthanasia—the Court turned to Prof Baxi. The moral, philosophical and religious overtones of the question can’t be solved without discussing the dignity of an individual’s life. Prof Baxi notes that dignity is a meta-ethical idea marked on rugged terrains. It has to be viewed in the sense of moral agency and autonomy (conveniently referred to as freedom of choice). Dignity must be treated as empowerment, which demands respect for one’s capacity, choices and conditions to operate free will. Out of all these revered references to the works of Prof Baxi made by the Supreme Court, some works of his on responsible activism are pertinent in the contemporary debate of a humanist approach towards constitutional law.
Prof Baxi showed his heroic activism during the dangerous times of executive impunity. A three-judge bench of the Supreme Court acquitted two police officers accused of rape under Section 375 of the Indian Penal Code in Tukaram vs State of Maharashtra (1979). Mathura, a 16-year-old, was raped by two police officers inside a police station in Maharashtra. With sheer courage, Mathura fought seven years’ of court battle only for the court to acquit the perpetrators citing the absence of injury marks on her body and alarm by the girl—presuming her consent. Irked by the decision of the Court, Prof Baxi and four eminent legal scholars—Prof Raghunath Kelkar, Prof Lotika Sarkar and Prof Vasudha Dhagamwar—wrote an open letter to the then chief justice of India.
The letter articulated the truth unheard of by the Court—depriving the victim of her rights and dignified life. The letter mentioned that it was not necessary for the presence of strong resistance from the victim in a rape case; passive submission of the body can also exist due to circumstances including criminal intimidation and the presence of intense coercion.
This wasn’t the only time when Prof Baxi followed his vision of protecting human rights. In 1983, he and Professor Lotika wrote a letter about the inhuman condition of women in an Agra protective home. He was asked a considerable number of difficult questions about why he must be heard along with his co-author raising questions on the inhuman treatment of women and the violation of their human rights.
Arguing that the term “locus standi” had no mention in the constitutional text, and that the violation of inmates’ fundamental rights were in violation of basic features of the Constitution, Prof Baxi emphasised on human rights. He called upon the Preamble—which offers a republican Constitution, casting the duty on the judges and courts to protect the fundamental rights of citizens. This set of arguments led to a paradigm shift in how public interest litigations (PILs) were seen.
His novel approach to jurisprudence, termed as “Social Action Litigation” (SAL), is based on the Constitution’s fundamental principles of justice, liberty, equality, and fraternity. The primary distinction between a PIL and an SAL remains the focus area; SAL is an instrumental in social justice and human rights.
Finally, Prof Baxi’s remarkable works in the field of law through his scholarly works and responsible activism is top-notch. Most of his works around the Constitution and human rights have remained the cornerstone of Indian constitutional jurisprudence. Many of his works have also been acknowledged by different High Courts in the country to be of considerable value for reaching a conclusion when the pressing issues are about human rights and the Constitution. But it is spectacular to notice that his understanding of the law is unconventional—his methodology includes diversion from popular narrative and carving of new jurisprudence which is a rare quality to be cherished. He has been a great source of inspiration for the authors and his juristic writings have always inspired us to carry on our academic mission.
He is an intellectual giant who has humanised the law deeply through his thought-provoking books on issues like law and poverty, human rights, right to development, sociology of law, Bhopal tragedy, the Supreme Court and politics, etc. His columns in The Indian Express and India Legal are very popular.
In the insightful words of Justice AK Sikri: “Being a judge of judges is a highly complex task. It is easy to be critical of the judgments of the courts, but critiquing the judgments in a scholarly manner is the prerogative of only a few. Professor Baxi falls in that coveted category, whose critical comments are taken with solemnity as he writes with a sense of responsibility. That is the reason that respectability is attached to whatever he says.”
—Lokendra Malik is an advocate in the Supreme Court, while Shaileshwar Yadav is a fourth-year student from National Law University, Jabalpur