The Influence Of Professor Upendra Baxi's Writings On The Supreme Court Of India

Professor Baxi's writings could be found at the intersection of human rights and constitutional law while arguing for judicial accountability. The Apex Court's decisions are scrutinised the most regarding judicial accountability compared to other constitutional courts. Being the highest constitutional court in India, the Supreme Court must produce judgements that would mould the idea of law without lacunas. In a contemporary legal scenario, especially with ever-growing debates on varied subjects, the Supreme Court has borrowed the understanding of eminent scholars from the field. On this note, it is quintessential to celebrate Professor Upendra Baxi's outstanding contribution–whose writings have shaped law by both – scholarly works and academic activism.

The Supreme Court has often cited Professor Upendra Baxi's writings while deliberating on critical human rights and constitutional law issues. It starts from the Constitution, which in its Preamble states India to be secular without providing the basic definition of secularism in the context of a diverse nation like India – leading the Supreme Court to decide this later. In the landmark ruling of S.R. Bommai v. Union of India (1994), the nine judges Constitution Bench discussing the contours of secularism at length in the Indian Constitution cited Upendra Baxi's jurisprudential works. The Court, while explaining secularism, borrowed what Professor Baxi had to say about secularism in the Constitution. As Professor Baxi's scholarly work 'The Struggle for Re-definition of Secularism in India' explained, secularism is a state of affairs where the public revenue is not used to promote any religion, wherein the State does not espouse or practise any religion.

Even when essential aspects of law-making and delegated legislation are discussed inside the halls of the Apex Court, references were rightly made to Upendra Baxi's scholastic works. In Avinder Singh v. State of Punjab (1978), a bench led by the legendary Justice V.R. Krishna Iyer quoted Professor Baxi's work from a seminar paper explaining delegated legislation. The Court quoted Professor Baxi's essential observation about law-making. He explained the law-making process as an exclusive prerogative of a small cross-section of elites. Professor Baxi emphasised in the seminar paper that there should be a social audit of significant legislation by the beneficiaries or, more generally, the consumers of legal justice. Professor Baxi's idea of social audit could be seen in a new kind of approach adopted by the government, wherein the draft bills are released beforehand for public consultation and serious comments by the stakeholders, thus establishing responsible governance.

In Kapila Hingori v. State of Bihar (2003), the Supreme Court explained the term 'life' as used in Article 21 of the Constitution. It held that life is a comprehensive and far-reaching concept. It includes livelihood and many other facets; it is more than mere animal existence. The inhibition against deprivation of life extends to all those limits and facilities through which life is enjoyed. To ascertain the accountability of the State in this case corresponding to the right to life, the Court took the approach of human rights. In doing so, the Court relied upon Professor Baxi's famous book 'The future of human rights.' In his book, Professor Baxi explained a progressive state gleans on the conception of good governance neither from the histories of struggle against colonisation and imperialism nor from its internal social and human rights movements but the global institutional gurus of globalisation protecting global capital against political instability and market failures.

A Constitution Bench of the Supreme Court in K.S. Puttaswamy v. Union of India (2018), while upholding the Right to privacy as a fundamental right, relied heavily on Professor Baxi's scholarly writings. The Court called upon his works to understand the fundamentals of how a new right could be brought into the constitutional realm, the rule of law, and, most importantly, human rights questions. Identifying privacy as a fundamental right was a progressive decision in a technologically advanced world. However, the question is how rights are born? According to Professor Baxi, the sphere of human rights is widening; he calls it "new rights arise from the womb of the old". On his take on the rule of law, Professor Baxi writes the substantive themes of the Indian Constitution to be four sovereign virtues – rights, justice, development and governance. He notes that they are intertwined and interlocked with the rest and in a contradictory combination with both the constitutional and social past and their future images. Development remains the leading aspect of constitutional vision, not just in economic growth but in the sense that deprivation, destitution and oppression that plagues an individual's life are eradicated. Going into the debate of understanding human dignity as a crucial factor in society and its philosophical approach, the court referred to the explanation given by Upendra Baxi on the relationship between- self, others and society. According to him, dignity is respect for a person based on freedom and the capacity to make choices.

A good or just social order respects dignity by assuring contexts and conditions as the source of free and informed decisions. Another exciting debate that the Court thought of delving into was 'bread versus freedom' – the Right to remain human. Citing his work From Human Rights to the Right to be Human: Some Heresies, the Court concluded that the presumption of choice between bread and freedom is a false antithesis. The ostensible challenge of picking one out of bread or liberty would be solved when balancing used. Professor Baxi deciphers this as not an abstract choice between 'bread' or 'freedom', instead who has how much, for how long and at what cost. For instance, some have freedom but not bread; little bread but no freedom or both freedom or bread. This attempt to decipher this cumbersome debate saved the Court from going in the inexact direction.

The attempt to find the scope of Article 21 was further initiated in Common Cause v. Union of India (2017). The Court in Common Cause deliberated whether the Right to life includes the Right to die. In doing so, the Court came across a substantial question from the intersection of constitutional law and human rights. Addressing the complex issue of allowing euthanasia – the Court turns to Professor Baxi. The moral, philosophical and religious overtones of the question cannot be solved without discussing the dignity aspect of an individual's life. Professor Baxi notes that dignity is a metaethical idea marked upon rugged terrains. It has to be viewed in the sense of moral agency and autonomy (conveniently referred to as freedom of choice). Dignity must be treated as 'empowerment', which demands respect for one's capacity, choices, and conditions to operate free will. Out of all these revered references to the works of Professor Baxi made by the Supreme Court, some works of his responsible activism are pertinent in the contemporary debate of the humanist approach towards constitutional law.

Professor Baxi showed his heroic activism during the dangerous times of executive impunity. A three-judge bench of the Supreme Court acquitted two police officers accused of rape under Section 375 of the Indian Penal Code in Tukaram v. State of Maharashtra (1979). Mathura, a 16-year-old, was raped by two police officers inside a police station in Maharashtra. With her sheer courage, Mathura fought for seven years of court battle only for the court to acquit the preparators citing the absence of injury marks on her body and alarm by the girl – presuming her consent. Irked by the decision of the Court, Professor Baxi and four eminent legal scholars -Professor Raghunath Kelkar, Professor Lotika Sarkar and Professor Vasudha Dhagamwar wrote an open letter to then Chief Justice of India. The letter articulated the truth unheard of by the Court – languishing the victim of her rights and dignified life. The letter mentioned that it is not necessary for the presence of strong resistance from the victim in a rape case, passive submission of the body can also exist due to circumstances including criminal intimidation presence of intense coercion. This was not the only time when Professor Baxi followed his vision of protecting human rights. In 1983, he and Professor Lotika wrote a letter about the inhuman condition of women in Agra Protective Home. He was asked a considerable number of difficult questions about why he must be heard, along with his co-author raising questions on the inhuman treatment of women and the violation of their human rights.

Arguing that the term 'locus standi' had no mention in the constitutional text and violation of inmates' fundamental rights violated basic features of the Constitution, Professor Baxi mainly emphasised the subject of human rights. He called upon the Preamble – which offers a republican constitution, casting the duty on the judges and courts to protect the fundamental rights of citizens. This set of arguments led to a paradigm shift in how public interest litigations (PIL) were seen. His new kind of jurisprudence making known as 'Social Action Litigation' (SAL) sense of the foundations of the Constitution – justice, liberty, equality and fraternity. The primary distinction between PIL and SAL remains the focus area; SAL is instrumental in social justice, human rights, and most notably in the questions of human dignity.

Finally, Professor Upendra Baxi's remarkable works in the field of law through his scholarly works and responsible activism is top-notch. Most of his works around the Constitution and human rights have remained the cornerstone of Indian constitutional jurisprudence. Many of his works have also been acknowledged by different High Courts in the country to be of considerable value for reaching a conclusion when the pressing issues are about human rights and the constitution. However, it is spectacular to notice that his understanding of the law is unconventional –his methodology includes diversion from popular narrative and carving of new jurisprudence, a rare quality to be cherished. He has been a great source of inspiration for the authors, and his juristic writings have always inspired us a lot to carry on our academic mission. He is an intellectual giant who has humanised the law deeply through his thought-provoking books on issues like law and poverty, human rights, right to development, sociology of law, Bhopal tragedy, the Supreme Court and politics, etc. His columns in the Indian Express and India Legal are very popular. Let us conclude this discussion with these insightful words of Justice A. K. Sikri: "Being a judge of judges is a highly complex task. It is easy to be critical of the judgments of the courts, but critiquing the judgments in a scholarly manner is the prerogative of only a few. Professor Baxi falls in that coveted category, whose critical comments are taken with solemnity as he writes with a sense of responsibility. That is the reason that respectability is attached to whatever he says."

Lokendra Malik, Advocate, Supreme Court of India & Shaileshwar Yadav, 4th Year Law Student, National Law University, Jabalpur