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Courage Craft and Contention: Human Rights and the Judicial Imagination

Transcript of public lectures by Justice A P Shah and Prof. Upendra Baxi

24 June 2010

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(From: Alternative Law Forum)

[On the 12th of June, the Alternative Law Forum (ALF) based Bangalore celebrated its tenth anniversary with a public lecture by Justice A P Shah and Prof. Upendra Baxi on the topic Courage Craft and Contention: Human Rights and the Judicial Imagination.]

Introduction by Lawrence Liang, Alternative Law Forum

Honorable Chief Justice AP Shah, Prof. Upendra Baxi, Distinguished members of the judiciary and friends. Good evening, and welcome to Alternative Law Forum’s tenth anniversary lecture. It is an honor to see so many of you - friends and well-wishers- who have been a part of ALF’s journey over the past ten years, and a privilege to introduce our two distinguished speakers for today.

Before introducing our speakers, I would like to spend a few minutes on behalf of all my colleagues at ALF reflecting a little on what our journey has been like. I believe that is rather unfashionable now a days to be sentimental, but hopefully it is not unfashionable yet to be honest, and honestly, and I am sure that I speak on behalf of my colleagues as well- we are a little overwhelmed by the incredibly generous responses that we have got from people from different walks of life over the past week, through emails, and all of you present here.

How does one measure ten years? For those of you who are soccer fans like me, and keenly anticipating Brazil’s win yet again, ten years could be measured as two and a half world cups. But in a more serious vein ten years can also be seen as the time it has taken for numbers like 9/11 and 26/11 to be transformed from being just dates to becoming a part of our vocabulary, and challenging our imagination of law, justice and human rights. At the same time if ten years ago you asked us when we thought homosexuality would be legalized in India, we would have said, perhaps in another fifty years. At a much more experiential level, we at ALF have moved very subtly from describing ourselves as a collective of young lawyers to ‘a collective of lawyers’,

Though ten years feels like a long time, some of our older friends remind us that as institutions go, we are not even a teenager yet. Milestones are both measurements of the distance that one has traveled as well as signposts of just how much further one has to go in the journey. We can also think of milestones also as opportunities to take a break, to pause, and to remind ourselves of why began the journey in the first place, and to acknowledge fellow travelers without whom the journey would not only have been impossible but also a lot less fun and exciting. It would be impossible for me capture the exact texture of ten years of work in ten minutes so I wont even try. Instead, I would like to share a few thoughts on behalf of my colleagues at ALF on the experience of working as a collective.

When an organization has been around for ten years, one more or less takes for granted a number of things, most of all its name: But every name is also the history of what it didn’t become or almost became. In our case, our name has been the cause for many questions, especially in the courts where it is often assumed that we do alternative dispute resolution. And of course we often get the standard question, alternative to what? One of the options that a few of us were very keen on initially was Law, Society and Democracy until we were reminded that with an acronym like LSD, we would perhaps not be taken very seriously, and what with the Hindi film, Love, Sex Aur Dhoka being a hit, I am glad that we chose the alternative name. Of course if the director decides to make a sequel “Aashiq, Love Aur Failure” then we are serious trouble.

In the era of neo liberalism, where the rights of armies and corporations take precedence over human rights and socio economic rights, and when we are constantly told that there is no alternative, it is perhaps not such a bad thing to aspire for an alternative.

At the outset it must also be said that while origin myths are useful up to a point, the core values and aspirations that have driven our work were not necessarily things that we had absolute clarity about when we began, and it is only through debates, disagreements and dialogue that we have arrived at some clarity over what defines our motivation and our aspirations as a collective. I stress on the word aspiration, because we are far far away from achieving all that we have set out for ourselves.

Also while this is seemingly a moment in which we celebrate ten years of an organization, in reality, the only real way in which we can measure the ten years is to see it as ten years of working and learning from different people: from social movements to activists, from academics to media practitioners.

There is a story which Eduardo Galeano narrates about a painter who after many years of observation and practice decides to paint something which includes everything he has seen, so he mounts a canvass and fills it with trees, rivers, mountains, people, places and after he has finished, he looks at the painting only to recognize that the lines in the painting correspond to the lines that form his own face.

So if we were asked to identify a few of the things that have been important to us, then the first would be the creation of a space which sees the practice of law as one responds to the struggles of various people for a more just and equitable society. As straightforward as this sounds, this gets really complicated when you locate it within the logic of the profession. As professionals enmeshed in a profession where authority and power are exercised through the language of knowledge and expertise, it has been a challenge for us to remind ourselves that our ideas of rights and justice do not emerge from our knowledge of the law or of precedents alone, but through an engagement with the people we have had the privilege of representing in courts.

Another challenge for us has been cultivate a space which does not distinguish between theory and practice, and activism and research. And sometimes this is easier said than done: Academic Research, Activism and legal practice have their own temporal rhythms, and the conversation between the urgent, the important and the interesting do not necessarily take place in any smooth fashion.

And yet a certain openness and fluidity has been critical to the way that we function. We have had engineers and social workers who have become lawyers after joining ALF, and lawyers who have become media practitioners.

The decision to work as a collective has been both the most enriching and the most challenging experience of ALF in the last ten years. Speaking about his collaboration with the psychoanalyst Felix Guattari, the French philosopher Giles Deleuze says that “I used to work alone, and even that was too many people, and then came Guatarri”.
What then does it mean to speak of a collective? What does it mean to believe in a shared ideal, or to make a common commitment.

When we speak of collectives, there is often an assumption of a shared vision or a collective ideal that binds a group together. I think it is not just sameness but also difference that marks the idea of a collective. These differences are sometimes extremely difficult to negotiate, and there have been a number of occasions when our very survival as a group has been under question. We have had people who have left us over sharp differences, and yet strangely it is difference and diversity that has also been the basis of an intensity of experience, and excitement for most of us.

Every member of ALF is a part of a much wider world, and their engagement with different issues and movements has opened our individual worlds out to different sensibilities which we would never have been able to have, had we been working on our own. These sensibilities expand our ideas of the world, of justice, law and politics. The greatest perk that we receive from working at ALF, since we are not too good in the Diwali bonus department has been an opportunity to work with colleagues who bring an inspiring sense of passion and commitment to what they do.

From the sexuality movement, we learnt to see issues of law and justice as questions of eros, corporeality and desire not as outside of law, but as being intertwined with the reason of law. From the sex workers and domestic workers collective we learn that shared solidarities are created not just out of an experience of violence, but through a sharing of songs, jokes and compassion. And from cultural theorists and artists, we have learnt that even the driest legal text can become the most fascinating cultural document. This has helped us understand the abstract world of law as one that is simultaneously political, personal, cultural and legal.

In many ways, the question of what it means to work as a collective goes into the heart of the question of what it means to inhabit the world with others: It is said that “that concrete relations that we establish in living with others are like shadows of the more abstract questions-that is, we learn about the nature of the world in the process of such living”.

So ideas of respect, justice, and equality are not just abstract ideals but things that we have to learn in a very lived and visceral sense, in the process of being a part of various struggles, and working with other individuals and organizations, but equally through the process of learning to inhabit a space and working together despite our differences. This demands what Ashish Nandy once described as the element of “ethical inventiveness” in our lives.

It is no surprise that the root word for the word ‘Fond’ comes from the word ‘ground’, and there is no common ground on which we can stand, or no collective ideal that we can imagine if it not founded on an idea of affection. In the larger history of politics, there is often little space for the relationship between the little communities that we inhabit, and the manner in which they allow us to imagine the utopian possibilities of a better world.

When we began exactly ten years, we organized a small workshop very early on- a workshop that attempted to locate the history of critical lawyering in India, as away to acknowledge the rich history of radical lawyering, but also as a way of setting out a guide, or a moral compass for ourselves. Prof. Baxi prepared a keynote address for that workshop, in which he began with a quote from Daniel Cohn-Bendit which suggested that ‘revolutions must be born out of joy, not sacrifice’.

The past ten years has been an incredible mixture of exhilarating victories, disappointing losses and exciting collaborations.We thank you all once again for being here and sharing in our joy, and hope that we continue the many adventures ahead.

Introduction to speakers

It is now my privilege to introduce our two speakers for today. Prof. Baxi says that one of the great Indian traditions is that the person introducing someone says the speaker needs no introduction, and then proceeds to take up half the speaker’s time, so instead of repeating what you already know of the speakers, I shall try to introduce them differently.

To our mind, Justice A P Shah and Prof. Baxi represent the best of the two worlds that ALF has strived for, and they have both been a source of immense inspiration to us in our work. Both our speakers have in the course of their careers displayed courage and craft in the issues they have addressed.

In response to a list brought out by the Guardian of the 100 best novels in English, Anthony Burgess, a little miffed by his own exclusion, brought out a list of the 99 greatest novels, leaving it apparent what was missing in the list. While Justice Shah’s modesty would be a contrast to Burgess, if we were asked to bring out a list of the hundred greatest supreme court judges, we would bring out a list of 99.

I had the opportunity of sitting in on the Naz Foundation hearings, and was struck by the incredible empathy that Justice Shah displayed during the hearings. Judges are often remembered by the legacy that they leave behind in the form of the cases they decide, and on that count Justice Shah has left behind a rich legacy of cases expanding the right of freedom of speech and expression, socio economic rights and decriminalizing homosexuality in India.

But what get left out of reported cases very often is the manner in which a judge conducts himself in a court room. Judicial power can manifest itself in the form of a smirk or a yawn, and judicial empathy manifests itself with the care with which a judge listens to the cases of the poorest and the weakest who appear before the courts.

In his judgment, Manushi Sangathan vs Govt of Delhi ( rickshaw pullers judgment), responding to a statement that rikshaw pullers were adding to the problems of the city, Justice Shah places in his record, his disapproval for the lack of sensitivity with which the urban poor are spoken of.

In Sudama Singh vs Govt of Delhi ( Slum dwellers judgment )

“It is not uncommon to find a jhuggi dweller, with the bulldozer at the doorstep, desperately trying to save whatever precious little belongings and documents they have, which could perhaps testify to the fact that the jhuggi dweller resided at that place. These documents are literally a matter of life for a jhuggi dweller, since most relocation schemes require proof of residence before a “cut-off date”. If these documents are either forcefully snatched away or destroyed (and very often they are) then the jhuggi dweller is unable to establish entitlement to resettlement. Therefore, the exercise of conducting a survey has to be very carefully undertaken and with great deal of responsibility keeping in view the desperate need of the jhuggi dweller for an alternative accommodation.”

Prof. Upendra Baxi, or Upen: Friend, Philosopher, Guide, Teacher: A man whose voracious appetite for learning is matched only by his equally voracious appetite for green chillis.

While everyone knows about Prof. Baxi the teacher, the jurist, the activist who started social action litigation, everyone is always a little surprised when they first meet Prof. Baxi because no one is quite prepared for the way he disarms you with his charm. It is said that when you are in the presence of someone who dazzles you, your only self defense is love. A few of us were fortunate to interview Prof Baxi for two weeks, and in the course of our conversations, he once remarked that he was keeping us hostage. What he didn’t realize that we were willing hostages suffering from the Stockholm syndrome, when the kidnapped fall in love with their kidnapper.

In the very early days of the Narmada movement, when the government was offering cash compensation of Rupees Five Thousand, Prof. Baxi approached the MP high court, in which he made an argument that the right to life in Art. 21 entailed not just land for land but a running brook for a running brook, a sunset for a sunset, and a grove of trees with shade for a grove of trees with shade. It is this alertness to forms of life and forms of suffering that Prof. Baxi’s work has been speaking to for decades.

Armed with his two long term companions, Uncle Marx and Mohandas, Prof. Baxi has opened out different ways of understanding postcolonial constitutions as transformative and insurgent texts to generations of lawyers and activists. When I had just graduated and was sitting for a scholarship interview, I was asked by I had chosen Warwick University, and I answered “Because Prof. Baxi is here, if he was at the National Law School I wouldn’t not need to go to Warwick”. And this is even before I had been disarmed by the charm offensive, Upen, you were clearly our moral compass then, and you continue to be now.

Ladies and gentlemen, Justice A P Shah and Prof. Upendra Baxi

Chief Justice A.P. Shah:

Professor Upendra Baxi, Mr. Lawrence, Mr. Arvind Narrain, my friend Justice Shylendra Kumar, distinguished ladies and gentlemen first I would like to thank the forum for inviting me for today’s function of the completion of ten years of the Alternative Law Forum and for giving me an opportunity to address this enlightened crowd in Bangalore. ALF, started in 2000 by a very small group of lawyers very committed to a practice which would respond to social and economic injustices, has grown in stature these past years and has today become a platform to address all issues of importance and political and social justice. I congratulate Lawrence, Arvind Narrain and all his colleagues for completion of these ten years and also for the good work done by them in diverse areas such as prisoner’s rights, gender rights, sex workers’ rights, socio-economic rights and also political and civil rights.

The title of today’s subject, “Courage, Craft and Contention,” is inspired by Professor Baxi’s book with the same name, containing his H.R. Khanna lectures in Bombay University in 1981. Professor Baxi then ably articulated the emergence of an activist Supreme Court in the period from 1977 onwards as it began to see itself as the last resort of the oppressed and the bewildered, seeking to restore to the Indian citizens the minimal dignity of citizens with rights. Professor Baxi argued that the role of justices in advanced capitalist society of the first world is necessarily different from those in developing countries of the second world. He makes an interesting distinction between an active judge and an activist judge. According to him an active judge regards him/herself, as it were, as a trustee of state regime, power and authority. Accordingly, he/she usually defers to the executive and the legislature, shuns any appearance of policy making, supports patriarchy and other forms of violent social exclusion and, overall, promotes stability over change. In contrast, an activist judge regards him/herself as holding judicial power in fiduciary capacity for the civil and democratic rights of all people, especially the disadvantaged, dispossessed and the deprived. He/she does not regard adjudicatory power as a repository of the reason of the state, he constantly reworks the distinction between the legal and political sovereign in ways that legitimate judicial action as an outcome of the adjudicative function.

Judicial creativity is part of legal existence. Such creative judicial law-making is the task of the Supreme Court. Judges tend to be apologetic about their creative role. They do so mainly because of their non-representative character. But our non-representative character, our non-political accountability, is not a source of our weakness. Rather, it is the main source of our strength. Courts are not representative bodies and it would be a tragedy were they to become representative. Courts are reflective bodies. They reflect the basic values of the system.

Ladies and gentlemen, I feel that the Indian Constitution is an activist Constitution and justices would be betraying the letter and spirit if they did not acknowledge its broad and purposive sweep. Courts cannot interpret law, much less a constitution, in a mechanistic manner. In the case of a statute the courts must find the original intention of the authors. In the case of a constitution, the court must sustain constitution’s relevance in changing social economical and political scenarios. The original intentions of the framers do not bind a constitutional court. Rather, the court is free to interpret the constitution in terms of what the framers intended under the circumstances that exist at the time of interpretation. In the absence of such judicial activism, a constitution would become stultified and devoid of that inner strength necessary to survive and provide normative order of the changing times.

With these preparatory remarks, I proceed with my presentation which I have divided into three parts. First, fundamental rights and fundamental rights protection by the judiciary during 1950 to 1975. Second, the emergence of an activist Supreme Court in the late 70’s where, in the words of Professor Baxi, the Supreme Court of India has become the Supreme Court for India. And the last part is about the effect of globalisation on the Constitution and constitutionalism.

Let me go to the basics – the Indian Constitution is perhaps the longest Constitution in the world. The preamble aims to secure to all of its citizens justice: socio-economic, political, liberty of thought, expression, belief faith and worship and equality of status and opportunity. These aims were not merely aspirational because the founding fathers wanted to achieve social revolution through the Constitution. Part Three of the Constitution contains a very impressive array of fundamental rights or basic human rights which resemble the Bill of Rights. The framers vested the Supreme Court with the power to declare the law and to quash as unconstitutional any law or order that transgresses any fundamental rights. This power, which is otherwise known as judicial review, of the Supreme Court to issue writs enforcing fundamental rights is itself a fundamental right. The framers deemed the court to be part of the state. According to Austin, the Supreme Court’s function was to protect the social revolution.

One of the most distinctive features of the Indian Constitution is the inclusion of social justice provisions. Part Four of the Indian Constitution enumerated certain directive principles of state policy. Though not judicially enforceable, but nevertheless fundamental in the governance of the country, the directive principles focus on the states’ efforts in securing a means of livelihood, preventing concentrations of wealth and means of production to the common detriment, protecting children and the health of all, providing equal justice and free legal aid, protecting the right to work, protecting the right to education and to public assistance, providing humane working conditions, providing for a living wage and for a participation of workers in the management of industries among others.

Despite this tremendous influence of the American Constitution, particularly the Bill of Rights, in framing Part Three of the Constitution, the Due Process Clause is conspicuously absent. Proposed Article 15 of the draft constitution read as follows: “No person shall be deprived of his life, of life, liberty and property, without due process of law.” It appears that accepting the advice of American judge Felix Frankfurter, the framers eliminated the original Due Process Clause. It is stated that Justice Frankfurter told Mr. V N Rao the secretary of the Constitutional Assembly, that this Due Process Clause is the chief source of all this judicial activism in the U.S. So finally, the Article 21, which was originally Article 15, which reads: “No person shall be deprived of his life or liberty except according to procedure established by law”. The words, ‘except according to procedure established by law’ were borrowed by the framers from Article 31 of the Constitution of Japan. Now there is no mention of the specific type of procedure required to deprive a person of his life and liberty and there was some criticism on this account. So Article 22, which was originally article 15A, was enacted to guarantee the right to a fair trial. Dr. Ambedkar said that by this Article, the framers provide the substance of the law of Due Process. The other aspect which is important is that Clause Two through Clause Six of Article 19 articulates the grounds on which a reasonable restriction could be placed on the fundamental freedoms enumerated in Article 19. Obviously, the authority to decide the reasonableness of the grounds is that of the court. So these provisions, in effect, implanted the seeds of Due Process in the Indian Constitution.

During the early period of the Supreme Court, the constitutional issues pertaining to land reform legislation and grievance of the landed gentry. From the adoption of the Constitution in January 1950 to the declaration of the Emergency in 1975, the Indian Supreme Court had been a force of conservatism. The court invalidated legislation on agrarian reforms in 1967 and as you know, in Golaknath’s case, the Supreme Court by a majority of six to five held, that the parliament had no power to amend Part Three of the Constitution. In 1970 the Supreme Court invalidated the bank nationalisation laws and the abolition of privy purses. Then the amendments were introduced in 1971 to reassert parliament’s right to amend every part of the Constitution and to make any challenge immune in courts to legislation made in pursuance of the directives of the state policy in Article 39 (b) and (c) of the Constitution. These constitutional amendments came to be challenged in the famous case of Keshavananda Bharti v. State of Kerala before a 13- judge bench. The Supreme Court, by a majority of seven to six, held that parliament had full power to amend the Constitution. But, because it has the power only to amend, it must leave the basic structure or framework intact. The basic structure doctrine is based on the hypothesis that the power of constitutional amendment could not be made equal to the power of making a constitution. There is lot of criticism directed against this judgment. If the founding fathers wanted to make certain provisions as entrenched, they would have said so in clear words or marginal notes, but there is no indication in the Constitution and, therefore, it is now left to the individual judges to decide about the basic structure of the Constitution according to his/her own value. For example, suppose in a constitution there is a provision that it can be amended by a referendum and 90 % of the population says that this constitution needs to be amended, can the courts still maintain that this amendment violates the basic structure doctrine? So this is one area where what happened in Indira Gandhi’s case which came subsequently out of that election dispute and the 42nd Constitutional amendment, it was such a abuse of the parliamentary power and it was struck down and the Keshavananda judgment became acceptable. I mean, today it is too late to question the wisdom of the judgment. The doctrine imposes a restriction on the power of the majority and in that sense it’s a counter-majoritarian check on democracy in the interest of democracy. That power has made the Supreme Court the most powerful court in the world. Secondly, it also made it a political institution because the ultimate determination of the basic structure was bound to be a political judgment. In 1975, an Emergency was imposed in the country following PM Indira Gandhi’s disqualification in her election case. Mr. Soli Sorabjee insists that he always calls it a holy emergency. Many politicians, journalists and social activists were arrested under the maintenance of the Security Act, i.e. MISA was challenged but they were made with the government’s plea that Article 21 was the sole repository of liberty and that, as a right to move for enforcement of that right, has been suspended by order of June 25, 1975 petitions were liable to be dismissed at the threshold. This objection had been overruled by as many as nine High Courts who displayed remarkable and robust independence in upholding the fundamental freedoms of the citizens. The appeals against this order were heard by a five-judge bench of the Supreme Court in ADM Jabalpur v Shivakant Shukla, and the majority held that the effect of presidential orders suspending Article 21 is that the detainee will have no right to challenge the detention in the court. Mr. Niren De, the then Attorney General, argued that even if a person is shot dead, there is no remedy - I mean, the right is suspended. Justice H R Khanna showed great courage in negating this totalitarian claim by the government. He held that Article 21 could not be suspended as the sole repository of the right to life and personal liberty and that such right could not be taken away under any circumstances without the authority of law in a society governed by rule of law. If two constructions of presidential order are possible, the court should lean in favour of adopting such construction as would make the provisions of the municipal law, i.e. the constitutional law, to be in harmony with the international law or treaty obligation. He referred to Articles Eight and Nine of the Universal Declaration of Human Rights. Article Eight says: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution or by the law”. Article Nine states that no one shall be directed or subjected to arbitrary arrest, detention or exile. Relying on these provisions, Justice Khanna finally concluded in favour of citizens. J Khanna paid the penalty for his dissent. He was passed over for the post of Chief Justice of India although he was the senior, most-serving judge.

It took 21 months and people’s simmering anger for the state of Emergency to abate. The Emergency period was actually India’s second freedom struggle. The similar experience of the Emergency seems to have contributed to this metamorphosis of the Supreme Court in 1977. Dr. Satyaranjan Sathe said that the court must have realised that in Indian democracy, high public esteem alone would enable the court to withstand the pressure of a hegemonic executive. Abandoning its hitherto deferential attitude towards the executive, the court adopted the role of a social auditor. In its new role, the court recognised the rights of the poor and downtrodden people in India and expanded its reach to cover their interests. The groundbreaking Supreme Court judgment in Maneka Gandhi was the point of transformation. In one of its earliest cases, in A K Gopalan, the Supreme Court had taken a very narrow view of Article 21 as merely emphasising a facet of the Dicean concept of the rule of law that no one can be deprived of his/her personal liberty by executive action unsupported by law. This was a protection against executive action which had no authority of law. So, long as there was a law which provided some sort of procedure, it was enough to deprive a person of his liberty. In other words, the court interpreted law in Article 21 like any other state-made law and not an abstract principle of natural justice. The court treated each of the fundamental rights as separate and distinct from each other. On this basis, it was held that when the requirements of the article dealing with a particular matter is satisfied, then you cannot look to the other articles. So there is not open to complaint the infringement of some other article. Now, in Maneka the court, in complete departure from its earlier view, held that Article 21 affords protection not only against executive action, but also against legislation and that no law can deprive a person of his personal liberty unless it prescribes a procedure that is reasonable, fair and just. It would be for the court to determine whether the procedure is reasonable, fair and just and if it is not, the court will strike down the law. Thus, Article 21 assumed a new dimension and the court introduced procedural due process in Article 21 by judicial construction. The court held that, of course it was already laid down in the bank nationalisation case, that the fundamental rights weave together a pattern of human rights guarantees and they are not mutually exclusive and distinct. On this line of reasoning, the court held that any act that violated Article 21 must meet the additional test of anti – arbitrariness set out in the Equality Clause in Article 14 and the reasonableness of Article 19. Now Article 14, as it was interpreted originally, it was considered to be concerned more with the classification principle. In Maneka, the court reiterated what was held in A P Raiyappa v. State of TN, that this is primarily a guarantee against arbitrariness in state action and the doctrine of classification was evolved only as a subsidiary rule for testing and determining whether a particular state action was arbitrary or not. I would like to quote these just two to three sentences from Justice Bhagwati’s judgment which really crystallize the role of Article 14. He said equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinal limits. Where an act is arbitrary, it is unequal both according to political logic, constitutional law and is therefore violative of Article 14. Then came the Francis Mullins case and this was really a turning point in interpretation. The word “life” in Article 21 of the Constitution in Mullins, J Bhagwati again held that life does not mean mere physical or animal existence. It also includes the use of every limb and faculty through which life is enjoyed and also encompasses within its scope the right to live with basic human dignity and all that goes along with it namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head. This is how the dynamics were changed with the interpretation of Article 21. This broad interpretation of the right to life really paved the way for the various socio – economic rights which were inserted in Part Four to be given full effect. The initial view of the Supreme Court was that fundamental rights are superior to the Part Four, i.e. directive principles because directive principles are not enforceable. Now after this deviation, ultimately the court held that they are not superior to the directive principles on account of the latter being non-justifiable. Rather, fundamental rights and directive principles are complimentary and the former are a means to achieve the goals indicated in the latter. The issue was put beyond any controversy in Minerva Mills Ltd. case where the courts held that harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution. So, thus widening the horizon of Article 21, the court read into it the right to health, livelihood, compulsory education up to the age of 14 years, unpolluted environment, shelter, free drinking water, privacy, legal aid, speedy trial various rights of under trials, convicts and prisoners. In the majority of these cases, the court relied on the directive principles contained in Part Four.

Now another important development of the 1970’s was the emergence of PIL or “social action litigation,” as Professor Baxi prefers to call it. He says that the PIL is a nomenclature given by the Americanised Indians, but I’m just using it only for the sake of convenience because that is more commonly used. What happened is the Supreme Court found that large numbers of the population were denied access to courts and were unable to approach the court on account of widespread poverty, bonded labour, social restrictions and illiteracy. I will just read that important passage in S P Gupta’s case where this locus standi was done away with in the public law. The court said where a legal wrong or legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public can maintain an action for an appropriate direction, order, or writ.

What happened thereafter is history now. In one stroke the court had extended the range of people with effective access to justice and the variety of issues that the court could adjudicate. This flexibility of the PIL procedure can be best illustrated by what is termed as epistolary jurisdiction. Taking a cue from an American court’s decision in Gideon v. Wainwright, where a postcard of a prisoner was treated as a petition by the U.S. Supreme Court, the court in S P Gupta’s case held that public-spirited persons can move the court even by writing a letter. The court has accepted letters and telegrams as petitions and many of the PILs, as a few filed by Professor Baxi, commence with the petitioners sending letters to the Supreme Court. And the other important aspect is, which was really developed as a departure from the procedural rules extending to the form and manner of filing a writ petition, is the appointment of commissioners for carrying out investigation, giving the report to the court and the appointment of lawyers as amicus curiae are all wonderful developments which began in 1977. There is a very long list of the cases which are decided by the Supreme Court in PILs. I would not like to deal with all, I will just give you two or three judgments. According to me, Rudul Shah v. State of Bihar is one of the most important judgments in which the court acknowledged the right of a citizen to compensation from the state for violation of his human rights. There, the defence was that India has ratified the ICCPR, but with a reservation about Clause Nine of the covenant, which provided for compensation. Justice Chandrachud dealt with this particular argument and finally came to the conclusion that if the apex court has no power to award compensation, then the whole scheme of the Constitution would be frustrated. Then, in D K Basu the court linked custodial torture to the defacing of all humanity.

The other judgment which I would like to mention is Olga Tellis v. Bombay Municipal Corporation. Professor Baxi said that it is an almost angelic enunciation of the right to livelihood. I mean what happened at that time - I was in college - I still remember, Antule’s government decided to clear all the pavement dwellers and not only to remove them from there, but also to deport them to their respective places. They came from all over - mainly from Maharashtra and maybe some other parts of the country and the argument of the petitioner was that pavements served as their home- cum- workplace and their eviction from the public land would mean a loss of their means of livelihood and life itself. Interestingly the court responded to this petition very sympathetically. For four years all the evictions were stayed. Originally, the stay was granted by justice Lenten in the monsoon when the evictions started. The court reasoned that, although the state could not be compelled to provide work to all its citizens, depriving a person of his means of livelihood was tantamount to depriving him of his right to life. The court said, and I am quoting J Chandrachud’s words: “Any person who is deprived of his right to livelihood except according to just and fair procedure established by law can challenge the deprivation as offending the right to life conferred by Article 21”. On this basis, interim stays were granted to the evictions in those times, but then the situation changed, as Lawrence mentioned, about these bulldozers coming to the slums. The slum dwellers are not even in a position to retain the documents on which they can claim some sort of right of relocation. So this was a great development for socio- economic rights. This was really the beginning, I would say, by the series of judgments which really brought the Part Four provisions in while reading Part Three. The other area which is now, too, established is Subhash Kumar and the AP pollution board, where the court held that the right to pollution-free water and air are fundamental rights. Then, the court considered the concept of sustainable development and within the rubric of sustainable development they developed the principles of polluter pays, the precautionary principle, and polluter pays principles. Now what is important is that this law is not really based upon only the reaction to the foreign law.

In the Oleum gas leak case, where a definite shift was made by the Supreme Court of India when faced with the cases of industrial disaster, now Ryland v. Fletcher lays down strict liability rule. There are some defences to this rule and one of the defences is that the rule applies only to non-natural use of land and that no liability would attach where the escape was due to an act of God, Act of a stranger, or that the victim contributed to the negligence or where there was statutory authorisation. So in a very big tragedy, if it is statutorily authorised or it is not unnatural use, perhaps there is no remedy for the citizens. Given the potential caused by industrial disasters in India, particularly with the magnitude of Bhopal gas disasters, now everyone is watching TV everyday and what happened in Bhopal is now well known. The Supreme Court held that enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the undertaken activity. The result of this judgment is that liability of the industrial undertaking is now absolute. This judgment came after the Bhopal tragedy.

And the last judgment which I would like to refer is Vishaka v. State of Rajasthan. Recently J Verma had an occasion to explain this case. He was the author of the judgment and the learned Chief Justice said that there was a legislative vacuum in this important human rights area and India had not only signed but ratified CEDAW so this was an international obligation. Therefore, the court created a legislation, really this is the only instance perhaps where a legislation was created by a judicial figure. That was a petition in a form of public interest class action filed by social activists and NGOs to prevent sexual harassment at the workplace. The case was followed by a brutal gang rape of a social worker while on duty. This happened in Rajasthan. The petitioners argued that while women suffer sexual harassment on a daily basis in the workplace, neither the executive nor the legislature took any appropriate action to protect women from such harm. Hence, it was incumbent upon the court to act. In a stunning move by any legal standard, the Supreme Court drafted the guidelines and norms relating to sexual harassment at the workplace and declared it to be the law of the land. In drafting the guidelines the Supreme Court turned to the obligations under CEDAW and this judgment was given in 2000. Ten years have gone, but the parliament has not enacted any law with respect to this particular human rights violation.

Much is said about the misuse of PILs. The criticism is that many PILs are motivated, they are publicity oriented, or that people are set up by some rival parties. I would like to divide the PIL in three phases. In the first phase, which began in the late 1970’s and continued through the 1980’s, the PIL cases were generally related to the rights of disadvantaged sections of societiey, such as child labour, bonded labour, prisoners, the mentally challenged, pavement dwellers and women. In the first phases, the PIL became an instrument of social transformation and revolution that the founding fathers had expected to achieve through the Constitution, so it was really social action litigation as said by Professor Baxi.

In the second phase of PIL that is 1990 onwards, in which the breadth of issues raised in PIL also expanded tremendously from the protection of the environment to corruption-free administration, the right to education, sexual harassment at the workplace, relocation of industries, rule of law, good governance and general accountability of the people. But, the second phase also brought a disturbing trend of the frivolous petitions which reached a very disturbing level in the third phase, which started after 2000. And from 2000 onwards, I don’t see anything much in the PILs except corporate questions and development issues.

The new PIL which is being pursued in various courts almost undermines the very purpose for which the concept of the PIL was originally perceived by the judges like Justice Bhagwati and Justice Krishna Iyer. I can give you some examples. There is a PIL pending in the Supreme Court praying strict implementation of the Bombay Prevention of Beggaries Act. UOI and the Delhi government has filed an affidavit that they are making their best endeavour to round up the beggars and deport them to wherever they come from - from different places. I really do not know under what provision of law a person can be deported from the city of Delhi to some other place. If a person who is convicted of a very heinous offence, a fraudster, a trickster, a corrupt politician all can stay in Delhi but a person - a beggar, who begs for alms only for his survival - he cannot be in Delhi. We do not wish to see poverty, we do not wish to see them. This is a complete perversion of the PIL jurisdiction.

The second example which I would like to give is the construction in the Yamuna belt. There were thousands of people, jhuggies, in that area and they were all evicted on the premise that this is a violation of CRZ regulations, notification because they were in the river bed. Now you find the construction of the Games Village is coming up in the same area.

It is a very unfortunate turn of events for the PILs. Now the misuse of PILs cannot be denied. But, still I feel that the PIL has served three great purposes. One is curtailing state lawlessness. This is a most important purpose. Then, creating awareness amongst people and serving as a catalyst for legislative action, for instance, ultimately after Unnikrishnan, the Right to Education Bill came and there are many instances where the Parliament has acted in pursuance of the orders of the Supreme Court. I think the Supreme Court has correctly summarised the position in Pharmaceutical Corporation’s case. What the Supreme Court said is in a society where freedom suffers from astrophy, an activism is essential for particular public justice, some risks have to be taken.

Now I come to the last leg of my presentation that is emergence of era of globalisation and liberalisation. Surya Deva, a writer, he’s written extensively on globalisation and its effects, says that the globalisation as a concept is neither pro, nor anti human rights and could offer opportunities both for the promotion and the abridgement of human rights at the national level as well as internationally. I think he quotes Denning: “Globalisation is a morally neutral concept. In itself, it is neither good nor bad but, it may be motivated for good or bad reasons or less good or bad reasons. Globalisation has serious implications, both positive and negative.” Now, several studies have been published and it has been shown that this vigorous promotion of markets has resulted in serious inroads into the socio-economic rights of the poor and vulnerable sections. Secondly, globalisation limits the powers of the state. Though the state, in principle, still possesses the power of regulation and intervention, the unavoidable fallout would be that states might not be able to take an activist position in fulfilling their human rights obligations. This diminishing role of states has really created a problem, not only for the state, but also for the courts in dealing with cases. Though writs have been issued in the past against private persons, with the definition of state instrumentality, it is becoming increasingly difficult to issue orders against these private corporations who are plainly performing public functions. The involvement of MNCs in human rights violations and generating environmental hazards has been well documented in Bhopal and there are several such human rights violations.

Now, I will just quote the Professor Henkin when he says, “Giant companies have become largely independent of states - of the states that created them, of the states in which they operate - some of them are replacing or at least jostling the state themselves in the state system.” And the Supreme Court has now - I would just like to see my own assessment about the role of the court in the globalisation era - initially, I think, in cases like Vellore Citizens Welfare Forum, AP Pollution Control Board, Goa Foundation, the court attempted to strike a balance between the need for development and the protection of human rights. But in recent years, the court has been influenced by liberalisation and corporate business interests at the cost of human rights. Its attitude has been less sympathetic toward recognizing and protecting the rights of the impoverished and vulnerable sections of society, such as slum dwellers and people displaced by the construction of dams. The Bhopal settlement is one such good example.

In a case about slums, a former CJI (Chief Justice of India) made a statement. He equated the slum dwellers with pickpockets. Inspired by these observations of the then-CJI, a division bench of the Delhi High Court struck down the Delhi government’s scheme for the relocation of slum dwellers on the ground that it serves no social purpose. The labour jurisprudence changed beyond recognition as a result of some judgments of the smaller benches taking a completely contrary view from earlier, larger benches of yesteryears. I may quote again, Professor Baxi, “The judicial activist generation of today is only too obliging in the process of dismantling labour right jurisprudence of yesteryear and too ready to espouse causes dear to the constituencies of new social movements. All this is consistent with the ideologies of globalisation and economic rationalisation.”

I would like to quote one passage from the judgment in the State of Punjab v. Devans Modern Breweries. The learned judge in his judgment observed, “Socialism might have been a catchword from our history, it may be present in the preamble of our Constitution. However, due to the liberalisation policy adopted by the central government from the early nineties, this view that Indian society is essentially wedded to socialism is definitely withering away. So a state policy which is followed for a decade withers away the promise of the preamble of giving social justice to the citizens of India.” In a recent judgment in Harjinder v. Punjab State Warehousing Corp., Justices G.S. Singhvi and A.K. Ganguly had to remind their brethren that the Constitution is wedded to social justice. The judges observed, and I would like to quote these observations, “Of late, there has been a visible shift in the court’s approach in dealing with the cases involving the interpretation of social welfare legislation. The attractive mantras of globalisation and liberalisation are fast becoming the raison d’etre of the judicial process and an impression has been created that the Constitutional Courts are no longer sympathetic to the plight of industrial and unorganized workers. In a large number of cases like the present one, relief has been denied to the employees falling into the category of workmen who are illegally retrenched from service by creating violence and silence in the jurisprudence developed by this court in the decades.” This is the comment by a division bench of the Supreme Court as recent as December 2010. In an earlier paragraph, the judges observed, “The concept of social justice drafted in the Constitution consists of diverse principles essential for the orderly growth and development of the personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is a genus of which social justice is a species. Social justice as a dynamic device to mitigate the suffering of the poor, weak, Dalits, tribals and deprived sections of society and to elevate them to the levels of equality to live a life of dignity of person.” In other words, the aim of social justice is to attain a substantial degree of social, economic and political equality, which is a legitimate expectation of every section of society in a developing country like ours, which is full of unbridgeable and ever-widening gaps of inequality, status, and of opportunity, law is a catalyst to reach the ladder of justice.

In 2007, in the case of State of U.P. v. G.S. Bisht, collective tensions were expressed in the context of globalisation by two learned judges of the Supreme Court. The question was whether it was proper for the judiciary to issue directions to the government for setting up consumer courts in the state of U.P. Justice Markandey Katju opined that in the garb of affirmative action, or judicial activism, the court cannot amend the law as that could be a naked usurpation of legislative power. According to him, the directions are really an encroachment into the legislative and executive government. The trend shown by Justice Katju is consistent with the stance of the court in Balco Employees Unions case, Dharmapur Sugar Factory, the approach seems to be and I would like to articulate on that, this approach is based on widespread perceptions that the courts are constitutionally and institutionally ill-suited to adjudicating in politically sensitive disputes involving issues of resource allocation. But also closely related to a prevailing understanding in Western democracies, especially in the U.S., that by contrast with civil and political rights socio-economic rights, whether enshrined in international, national or domestic instruments, are ideological aspirations, or programmatic goals, dependant on resources for their satisfaction and therefore inherently ill-suited to the mechanisms and techniques developed by the court for enforcement of the civil and political rights. So an artificial distinction is made between civil and political rights on the one hand and socio-economic rights on the other hand. The civil and political rights are called negative rights which come into play as soon as they are enacted and the socio-economic rights are subject to the grace of the state and cannot be taken as a right. This is the U.S. Supreme Court’s consistent view in the last two or three decades.

Now I want to place before you that even in Western democracies, including the U.K., where the constitution is unwritten, remedial devices, changes of rules of procedure or, say, the rules of standing, often develop by the courts themselves and have allowed complex, polycentric disputes relating to the environment, economic labour relations or to public health issues to be adjudicated under the rubric of public law or constitutional law. What Lord Steyn said about the court’s reach in socio-economic matters where resource allocation issues are involved, and I quote his article, “Deference: A Tangled Story”: “In common law adjudication it is an everyday occurrence for courts to consider, together with principled arguments, the balance sheet of policy advantages and disadvantages. It would be a matter of public disquiet if the courts did not do so. Of course, in striking the balance courts may arrive at a result unacceptable to Parliament. In such cases, Parliament can act with great speed to reverse the effect of the decision, but there is no need to create a legal principle requiring the courts to abstain from ruling on policy matters or resource allocation issues. Somebody must tell them that the world has now moved from the days of Professor Thayer and Justice Felix Frankfurter, who are quoted extensively in the Supreme Court judgments.

The justices should also take note of the cooperative dialogue which started in the South African Supreme Court. The South African constitution is more concrete, is more dynamic than the Indian constitution, but the scheme regarding socio-economic rights is, I would say, after the expansive interpretation by the Supreme Court of part 3 and part 4 is almost similar. Now, I will only quote two or three judgments in the government of the Republic of South Africa v. Grootbroom and Others the court declared that the national housing policy was inconsistent with the right in Section 26 of the constitution, which accorded access to adequate housing. In Minister of Health v. Treatment Action Campaign, the petitioner challenged the constitutionality of the state policy to limit the provision of Nevirapine, which is a drug to stop mother-to-child transmission of HIV. The minister was very adamant - he said that because of the funding position, this drug would be made available only to a few of the hospitals and not all. The court held this to be a breach of Section 26 and accordingly directed the state to remedy its program. The last judgment is in Khosa v. Minister of Social Development - again a very important judgment. The South African government took a stand that the scheme of social security is not applicable to permanent residents. Refugees would come from neighbouring African countries, but at the time, social security would apply only to the citizens and not the permanent residents. The constitutional court of South Africa has held that the exclusion of certain permanent residents from access to statutory social grants was inconsistent with the prohibition on unfair determination of Section 9 of the constitution, read together with the right to access to social assistance in Section 27.

Of course, the U.S. Supreme Court’s stance is very clear. Some of the state constitutions make important provisions for socio-economic rights. For instance, at least in two states, the right to education is a fundamental right. Now you’d be surprised to know that the New York State Appellate Division, in March 2006, in Campaign for Fiscal Equity v. State of New York, specifically mandated the allocation of sufficient funds in the state budget to fulfill the education article of the New York state constitution. In Kansas, there is a series of cases called Montoy v. State, demanding a certain level of school funding throughout the state. So, the court compelled the legislature to make a budgetary provision to fulfill the right to education.

Finally, I quote (former Israeli Supreme Court judge) Justice Barak‘s view that human rights need protection in a democracy and the protection of human rights cannot be left to the legislature or the executive, which reflects the majority opinion that they require the protection of the judiciary. Professor Baxi reminds the judges that in the circumstance of economic globalisation that seeks to make the world safe for foreign investors, activist justices are expected to be more solicitous for the protection of civil and democratic human rights, rather than any other institution of the state.

I would like to close by quoting observations of Dr. Ambedkar in perhaps his last speech in the constitutional assembly where he prophetically warned that India was going to enter into a life of contradictions. In politics, we will have equality and in social and economic life, we’ll have inequality. In politics, we’ll be recognizing the principle of one man, one vote and one vote, one value. And in our social and economic life, we shall by reason of our social and economic structure, continue to deny the principle of one man, one value. How long shall we continue to lead this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove these contradictions at the earliest possible moment or else those who suffer from inequality will block the structure of political democracy which assembly has to labouriously build up. This is how he has concluded.

Thank you very much for giving me a very patient hearing and I will say just a few words lastly, before I take my seat. I must thank Arvind Narrain again for inviting me here and secondly, I read Professor Baxi’s writings extensively, but I had no opportunity to interact with him until today. But, because of this invitation, I got a chance to meet him. Thank you.

Professor 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.

These proceedings have been transcribed by Megan Hjelle, Meghan Cowan, Smitha Prasad, and Ganesh R. - all of who were interns at the Alternative Law Forum at the time of this event.