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Bringing Baxi to the Fore

Abhinav Sekhri

 

I do not belong to a family of lawyers. Nor did I spend my student years dreaming about a pursuit of the legal profession in any manner. So, I would be lying if I said that I knew all about Professor Upendra Baxi when, as a first-year law student in 2009-10, I was part of an assemblage gathered for him to address one afternoon at NLSIU. I would also be lying if I said that this lecture gripped my imagination with a frenzy and pushed me to become a serious law student, striving to make good on the promises to society that my university supposedly stood for.


Just as sudden as his appearance was Professor Baxi’s disappearance from our life in law school. I do not recall any further lectures of his. More importantly, I do not recall more than a handful of his works being prescribed by professors in our courses after the initial introductions to Sociology and Legal Methods, and the obligatory reference while reading about the Bhopal Disaster during environmental law classes.


It was only much later, while reading for my LLM outside India, that I picked up a copy of Crisis of the Indian Legal System (‘Crisis’) (1982) while working on a paper about delays in the process, and its effect upon me was indescribable. While the lecture in 2009-10 did not grip my imagination, Crisis certainly did and led me to The Indian Supreme Court and Politics (1980), Liberty and Corruption (1989), and so on, such that I had read much of the 1980 to 2000s writing within the space of a few months. Since then, the encounters with Professor Baxi have been itinerant, occurring across a variety of settings. Most recently, I stumbled upon him in the most unexpected of places—the Letters to the Editor section in The Times of India from 31 May 1961, where Professor Baxi was criticising the Bombay High Court’s decision to uphold the booksellers’ conviction in the Lady Chatterley’s Lover prosecution!


Why was this name, always hallowed and revered, not part of our intellectual development as students of law, beyond this spectral presence? Where was this kind of critical perspective about the legal system throughout our undergraduate studies? Has anything changed for undergraduate students today, fifteen years later? These thoughts came to me as I began to read Of Law and Life, prompted by the unexpected invitation to contribute to this ongoing discussion of what is truly a remarkable collection of conversations with Professor Baxi first recorded in 2008 but updated prior to this volume’s publication in 2024.


The conversations are as wide-ranging, eclectic, and thoroughly insightful as one would expect in such a volume, and it is fair to say that the chapter titles are, at best, illustrative, and by no means conclusive of the scope of their contents. They demonstrate Professor Baxi’s unparalleled ability to connect seemingly disparate ideas, themes, and disciplines, coming from the many lives he has led, which has set apart his contributions to jurisprudence, especially within the Indian context. The conversations also were fascinating reading simply because of the insight they gave into the many lives that this remarkable individual has led. Thus, while my brief was limited to two chapters (Chapters 8 and 12), the conversations spill over from various places, and I ended up reading a fair bit more as a result.


It is difficult to “comment” as such on these conversations, given all that a person of my standing took away were notes, citations, and a trove of ideas for the future. Nevertheless, considering the assignment, I have tried to comment upon two themes that the editors identified as binding the conversations which I was tasked with reading—Chapter 8 titled “Emergency, Collective Political Violence and Balagopal” and Chapter 12 titled “Social Action Litigation, Judicial Accountability, and Bhopal.”


The Emergency and Political Violence


Professor Baxi laments the failure to properly memorialise and learn from the Emergency. It is a failure that continues to this day, with most law school curricula rarely exploring the many periods of Emergency, not just 1975-77, that India has witnessed since independence. Indeed, the law school has reduced learning about the Emergency to little more than an incantation of the clauses, a condemning of A.D.M Jabalpur, and a presentation of the post-Emergency era Supreme Court as a phoenix-like resurrection of the institution.


The conversations in Chapter 12 are all-encompassing and focus more on the themes that underlie the idea of an Emergency Power being vested with a nation-state, rather than the Emergency of 1975 itself. As a result, while we learn a great deal about Schmitt and the genealogy of political violence, we do not get Professor Baxi’s insights into some of the more specific legal issues presented in that period by all branches of the Indian State. Given his extensive work on preventive detention, with him contending that there are two models of coercive power working in India — the Preventive Detention System and the Criminal Justice System—it would have been fascinating to learn more about how he connected these dots.


One facet of the conversation that was particularly enriching was its focus on the life and contributions of K. Balagopal. The interlude reminded me of a documentary on Balagopal’s illustrious contemporary, K.G. Kannabiran (The Advocate), and specifically Kannabiran’s remarks that the Indian State has always failed to accept political solutions for political problems. To use Balagopal as an example for understanding the legitimacy of the State, its monopoly over violence, and the ideas of Emergency, shows us how little the classroom today exposes us to critical perspectives. Much like the discussants, I could not agree more that the writing, and frankly the very lives of persons such as Balagopal and Kannabiran, are key to understanding the different facets of the idea of legitimacy that we associate with law.


Social Action Litigation


Professor Baxi’s contributions to securing justice in various causes, as well as providing a nuanced critique of the discourse surrounding the court’s expansion of “epistolary” jurisdiction, are both well-known. Chapter 12 gives us various insights on this front, both in terms of giving a ringside view of the many events that Professor Baxi played a part in, as well as giving us his views about this shift in the legal process with which he was so closely involved.


The sense of near monastic duty with which Professor Baxi viewed the entire enterprise of SAL was riveting to read about. But thereafter one is left with two strands of thought. On the face of it, the text would make us think that Professor Baxi attempts to dissociate his idealised notions of “SAL” from their corrupt present-day avatar of the PIL. But at the same time, beneath this surface lies the clear, and almost tragic recognition in him, that even as the SAL enterprise was in its heyday, it always carried within itself the potential to morph into something quite different from what its progenitors intended. It was as if even while working on SAL, Professor Baxi always knew that the seeds being sown could very well ripen into a fruit like the PIL regime we see today which he does not appear to be as enamoured with, arguing that it has been captured by interest groups (for instance, PILs on land ceiling / urban land usage in the NCT of Delhi).


Where I felt the conversation did not probe enough was the Supreme Court’s active role in allowing that drift through judgments, rather than only looking at it from an institutional sense. What could have been done to shape the course of history? Professor Baxi cites the early concerns of Justice Venkataramaiah in Sudipto Mazumdar (1983) and how it was imperative that those be skirted to ensure that SAL was not quelled before it was even born (the Bench posed ten issues on PILs and referred the matter to the Chief Justice for placing it before a Constitution Bench to frame guidelines, but that never happened because of the immense number of representations sent in the meanwhile). But what about the many roads not taken thereafter by the Court? What about the active weaponisation of the PIL route to throttle constitutional rights? A more probing discussion would have certainly yielded fascinating answers.


Conclusion


Of Law and Life offers a fantastic model for creating a repository of knowledge and the exercise deserves to be replicated across settings with the handful of luminaries who occupy the firmament in which Professor Baxi resides. A parting thought: considering the national importance of his work, one can only hope that all concerned make necessary efforts to make his writing — especially what is my personal favourite period from 1980 to 2000 — available to the public at large through digitising and open access licensing. What is the point otherwise of having the privilege of such a generational scholar in our midst if one cannot read his works at will in the country of his birth?

 



Abhinav Sekhri is a lawyer practising in New Delhi.







Feature Image: Supreme Court of India by Subhashish Panigrahi. Source: Wikimedia Commons.


This is part of a book round-table on Of Law and Life: Upendra Baxi in Conversation with Arvind Narrain, Lawrence Liang, Sitharamam Kakarala, and Sruti Chaganti (Orient BlackSwan 2024). Read the other posts here.

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