Enacting the Judicial Appointment Commission without consulting the Supreme Court may lead to a Constitutional crisis; Prof. Upendra Baxi

Professor Upendra Baxi, since 1996 Professor of Law in Development, University of Warwick, served as Professor of Law, University of Delhi (1973-1996) and as its Vice Chancellor (1990-1994). He has also served as: Vice Chancellor, University of South Gujarat, Surat (1982-1985), Honorary Director (Research) The Indian Law Institute (1985-1988). He was the President of the Indian Society of International Law (1992-1995).

Professor Baxi graduated from Rajkot (Gujarat University). He read law in University of Bombay, and holds LLM degrees from University of Bombay and University of California at Berkeley, which also awarded him with a Doctorate in Juristic Sciences. He has been awarded Honorary Doctorates in Law by the National Law School of India University, Bangalore, and the University of La Trobe, Melbourne.

Professor Baxi has taught various courses in law and science, comparative constitutionalism and social theory of human rights at Universities of Sydney, Duke University, Washington College of Law, The American University; Global Law Program New York University Law School’ and at the University of Toronto.

He served on the editorial boards of many leading Indian and overseas learned journals and has contributed well over 200 articles. Some of his publications include: The Indian Supreme Court and Politics (1979); The Crisis of the Indian Legal System (1982); Courage, Craft and Contention: The Indian Supreme Court in Mid-Eighties (1985); Towards a Sociology of Indian Law (1986); Liberty and Corruption: The Antulay Case and Beyond (1990); Marx, Law, and Justice: Indian Perspectives (1993); Inhuman Wrongs and Human Rights (1994); Mambrino’s Helmet? Human Rights for a Changing World (1994). He has edited a number of volumes, including the Bhopal Case trilogy, published by the Indian Law Institute and Law and Poverty: Critical Essays (1989).

Professor Baxi was invited to deliver a course of lectures by The Hague Academy of Private International Law, now published as Mass Torts, Multinational Enterprise Liability and Private International Law (2000).

Professor Baxi has innovated social action litigation (called as ‘public interest litigation’) before the Supreme Court of India. He has endeavored to combine human and social rights activism with an active law teaching and research career.In 2011, he was awarded the Padma Shri by the Government of India.

Live Law: Good morning Sir. Thank you for agreeing to meet with live law today. We find great pleasure in interacting with a legal luminary of your stature.To begin with we would like to ask where from your deep drive and passion for the law stems?

Professor Upendra Baxi: Thank you. I must apologize that it has taken me some time to do this (interview). You start with a very difficult question. I was a student of literature in Saurashtra University Rajkot. (At that time) there was no passion for the law but there was passion for literature. Then I moved to Bombay and it was only by accident that I went to study at Government Law College (GLC) there. My first year was a disaster. I did not like studying law. After six months, I started working with a shipping company and there was no literature there. I wrote my first book then and it was called the ‘Saga of Scindia’. It was during my second year at GLC that I really developed what you call passion for the law. I read everything which was there in the library of GLC. It was a rich library.One of the illustrious men, Dr. Ambedkar was at that time the principal of GLC. He used to mark all the books in the library. I did not like marked books. I saw all of them marked and reported the same to the librarian. The librarian said that this had been done by Dr. Ambedkar.Dr. Ambedkar obviously believed in what ‘Karl Marx’ said i.e. ‘Labour creates its value’. If he worked on any books, he thought it was his ownership. He eventually took many books along with him when he retired. But anyway, that is where I developed my passion for the law.As a student, my first writing in college on “Concept of Proof in Literature and Law” was handwritten. At that time there were no wiros, no computers and few typewriters. I brought my understanding of the law on paper. Law was at the back of my mind and blossomed in GLC. Thereafter I pursued my Masters in the Dept. of Law, Bombay itself.I went on to win the gold medal from Rotary Club for the “Best Student of the year”. I broke all records in the group of specialization called jurisprudence. But this was not material. For me law is not just the law, it is much broader. It pertains to the inner order of association. Law is present in every action of human beings. If you remove the law you remove the whole lot. Since then I have never looked back.

Live Law: Did you always want to have a career in teaching law and academic research?

Professor Upendra Baxi: At our ancestral home, when I was of the age of 6-7 years, I used to address the wall as if it were my class. I have always aspired to be a Teacher.I used to tell everyone I want to be a teacher, not specifically of law, but yes I wanted to teach.To me human beings are of two kinds- one kind is bookworm and the other kind is ordinary worms. I am a book worm. I used to read everything. I may not have understood everything but yet I would read it. I was interested in reading as well as speaking. It was not only about law in the beginning; it became about the law after I graduated.To me law is not just for judges and lawyers- it is the philosophy of law, the sociology of law, (as I have mentioned above)- it is very broad.

Live Law: Could you tell us how you came up with the term ‘social action litigation’ which is also referred to as ‘public interest litigation’?

Professor Upendra Baxi: To cut a long story short, I wanted an ‘Indian term’ which would differentiate it from the term ‘Public Interest Litigation’ in the USA.Social action was the obvious term because people believe in social

action (in India). Social action is a distinctive Indian Phenomenon.Social Action Litigation differs from the Public interest litigation in the USA not only in terms of subject matter but also with regard to the fact that a petitioner can appear in person in India while this is not permitted in the USA. In USA only a lawyer can appear in the court but in India anyone can appear in the court- journalists, students and teachers are permitted to appear.Further, in India, anyone can approach the court by simply writing letters to judges which may be converted into writ petitions. So ours (Indian) was a very unique affair and still is a unique affair.Another difference (from the USA Public Interest Litigation) is that there is no grant or organization funding these litigations in India.Hence, I call this as SAL i.e. Social action litigation and not Public Interest Litigation. Judges have acknowledged my intention behind calling it SAL but they nevertheless call it a “PIL”.

My message is that you can borrow labels but you cannot borrow history. If you are concerned with typical Indian nature then you should be concerned about the language (terminology), so you have to speak in the same language. So it is not PIL in the American sense; rather SAL which is a judge sustained litigation (in India).Agra Protective home case [Dr.UpendraBaxi v. State of UP 1981 (3) SCALE 1136 ]marked the beginning of social action litigation. This case was filed in 1980 in my name (later, it was specifically changed to mention also Professor LotikaSarker, a co-petitioner, a colleague, friend, and amongst the pioneers of women’s studies in India from whom I learnt a good deal) and it is pending even now. This case has been transferred to NHRC  [UpendraBaxi v. State of UP (1998) 9 SCC 388] . The case introduced the idea of letter petition; it invented the legal commission since Supreme Court is not a court of fact. All these things were new developments. 

Live Law: Sir, do you think the ‘Social Justice Bench’ is a good improvement in terms of reducing the backlog of cases dealing with important social issues?

Professor Upendra Baxi: I think it is the next step. It is the most recent step. There have been several phases of movement from the charismatic phase where several inventions and innovations of the law were made. The Supreme Court started accepting ‘other regarding cases’ and has virtually done away with the concept of locus standi. This was followed by the phase of institutionalization. The Court appointed a registrar and/or special officers to take care of these cases. There is also a phase of bureaucratization. For example, the Sheela Barse case[AIR 1983 SC 378] was a landmark case which was later ordered to be taken over by the Legal Aid board. The Supreme Court has been resorting to transfer of cases to appropriate forums: be it the NHRC or NCW or appropriate High Courts. The Supreme Court even issues directions to Ministries.Then came the phase when the Supreme Court started making policy. Vishakha [AIR 1997 SC 3011 ] is one such case. Today there are so many issues-whether the Black money issue or the rivers interlinking cases, hence the Social Justice Bench is the recent development of the same thing.It is a good move. It is both a discontinuity and continuity. It is discontinuity in terms of a special bench being set up and continuity, with regard to the fact that Court No. 2 was de facto the social justice bench and

now has been officially so named.The Social Justice Bench is an experiment- what it does and how it manages past arrears are all live questions. It holds great promise in the sense that it will achieve consolidation.However in the long run, it has to end up as a Constitutional Bench of five judges, as interpretation of two judges or three judges bench is not enough. Constitutional Bench is ultimately what is required to make some order out of the chaos. A Constitution Bench or Social Justice Bench should clarify the domain of Article 21 of the Constitution of India (Right to Life): How far can Art. 21 go? Can everything be argued under the guise of being arbitrary? Does the petitioner have to bear the burden and establish reasonable nexus? How far Article 142 of the Constitution can go?Therefore, for these and other questions of importance, I think a five judge bench as a Social Justice Bench is the need of the hour.

Live Law: Sir, you have been a Law Professor for several years and not only teach in India but abroad as well. What is the difference that you encounter in the students abroad and in India?

Professor Upendra Baxi: Well, in India (particularly in Delhi) there are a large number of students from Nepal, while abroad in USA or in Warwick University, there are students from Latin America, Former Soviet Union, the EU, Africa and the so called transitional societies.The main difference is that, abroad I had to adapt to quick changes and make certain pedagogic decisions. For instance, I had a student from Moldova and I didn’t know much about the country. Similarly she too would not understand references that I took for granted and were common knowledge to all students. Hence it was necessary to adapt and find examples that were common to the culture and language of that student.Teaching is multicultural. A teacher has to ensure that the student understands; it is communicated, that is key in teaching. So, the education of teachers must be continuing, they must learn from their students. I have learnt from my students more than perhaps I have taught them.I learnt how to communicate from my students and also how not to communicate. Similarly what one does in the practice of the law is also to communicate. It is very important for a teacher to learn something from everything. This is true law in action. I think that was a long answer to a short question or no answer at all (laughs).

Live Law: Do you think National Law Universities have served the purpose for which they were started to fulfil? How has the goal of National Law Universities been affected by majority of their alumni working in corporate firms?

Professor Upendra Baxi: I do not know what the purpose of National Law Universities is today. I saw the purpose

of National Law Universities as creating soldiers of justice. I never wanted to supplant but only to supplement liberal education. My idea was a fusion of pre law and post law. For example a Sociologist will teach Torts and a Torts teacher will teach a bit of sociology; but this has not happened. I worked for this curriculum along with Prof. Menon, founder of the five year law school program.The present legal education at the National Law Universities is certainly very good; it has justified promoting professional education. However, the question remains has it served a wider and constitutional social purpose?One of the purposes (according to me) of these Universities should be social reproduction of good law teachers. There is certainly a lack of good teachers today. The National Law Universities cater to creating good lawyers and judges, but what about teachers? If there are no good professors (teachers) then how will Universities function? I have found that most of the Indian Journals are filled with contributors from abroad, so where is the Indian share? Where is the writing by teachers? Therefore, we need to cater to this as well.The biggest problem is the lack of interaction with other faculties in National Law Universities. There is a great deal of isolation. These Universities may be single subject faculty but it should integrate with other faculties such as History, Arts, and Sociology etc. Creation of Centres in the Universities can be one of the solutions but it is certainly not the only solution to the lack of interaction. So the integration of law with non-law is very important. My vision was to have a fusion of disciplines not creating a wall separating disciplines. The idea should be of interaction- a constant dialogue- which is not happening.The issue of the graduates joining corporate law- I do not think there is anything wrong with it. But, yes, these Universities ought to not only create lawyers but cater to other professions such as teachers, IAS etc.

These Universities seem to be based on a management logic. Its function seems to be to produce good lawyers; however the idea of law school must be justice.  The goal should not be akin to management institutes of producing managers, CEOs etc. This was not my idea. Law is a social tool. There should be some sort of social services provided by these National Law Universities, so that lawyers can become better lawyers. My idea was to combine lawyers with soldiers of justice- two tasks to be executed together.It is a very difficult task but it is important to stay with the difficulty.

Live Law: Once your name was considered for the appointment of Judge in the Supreme Court of India. What are your views on appointing academicians as Judges?

Professor Upendra Baxi: In 67 years of Independence, the Presidents of India have been looking with a telescope and have not found any jurist worth appointing as a Supreme Court Judge!So obviously jurists don’t exist in India. Hence, I think this is a dead issue. I had received a letter from Buffalo University when I was in Duke University saying Judge Baxi- you are invited for so and so seminar. I went there for a seminar and inquired from the professor concerned who informed me that I was a judge; he said that Justice P. N. Bhagwati said that I will be appointed as a judge in four months and hence he thought I was a judge! Many Judges such as Justice Chinnapa Reddy, Justice

Desai used to call me Brother Baxi. I was a de facto judge.Our country produces academic law eg. Hindu and Islamic law are academic law. Academic lawyers don’t have to be judges. Academic law is a distinct branch of common law and it requires due recognition. Academic lawyers produce judges. They produce non state law, the natural law on which ultimately much of the state positive law is built or rests.

Live Law: What are your thoughts on appointment of Chief Justice of India on the basis of seniority instead of merit?Krishna Iyer J. would not have become a Judge if seniority was the criteria.

Professor Upendra Baxi: I think the only basis of appointment is excellence and there is no other way. I speak as a

citizen of India. I am a part IVA (Constitution of India) citizen. One of the fundamental duties of a citizen is to develop scientific temper, spirit of inquiry and reform and excellence in all walks of life.Therefore excellence can be the only basis of appointment and mediocrity is an enemy of excellence. All Judges, any judge, must be outstanding. He/she must dread mediocrity and pursue excellence at the command of the constitution. Judges should never be allowed to be mediocre. They should be the best citizens of the Country.

Live Law: Who according to you is the best Chief Justice of India and why?

Professor Upendra Baxi: Oh!! That is a naughty question (laughs). I will not answer this question but I will say who is a good judge has been defined by the Supreme Court of India. The Supreme Court has defined values of Judges and Conduct of Judges. There is also the Judicial Accountability Bill which says what judges should do and what

they cannot do. The Important question here is how long a judge is a former judge after retirement. (According to me) Designation ought to end with the end of term of office one holds i.e. after retirement. However, in India, the presumption seems to be once a judge always a judge. I think you cannot be former judge for a long time and this should also be assessed vis-à-vis who is a good judge.

(To answer your question) Every person has a list of his/her own favourite/best judges and lawyers. However, academicians are like botanists, for them the whole plant is important not a particular part. Academicians are the judges of judges.I am fond of several judges who is the best I do not know. For me the ‘best’ judge is one who knows not just merely the lawyer’s law but knows also, what the love for justice is.  I am fond of Justice Krishna Iyer, Justice K.T. Thomas, Justice Bhagwati, Justice Desai, Justice Chinappa Reddy, Justice K Ramaswami, Justice Jeevan Reddy and several others. I have the privilege of calling many of them by their first name.

Live Law: What are your thoughts on the National Judicial Appointments Commission? Do you think it will be an improvement over the old Collegium system?

Professor Upendra Baxi: Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the “system” are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law.In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) Justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word “consultation” shall mean the “consent” of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary’s affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change? The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable

conflict between Parliament and the Supreme Court. The basic structure here is the independence of the judiciary and judicial review. Even under KesavanandaBharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution.However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis. (For more information, please refer to my article)

Live Law: How do you react to Fali S. Nariman’s suggestion that two Judge Benches judgment shouldnot be considered as precedents under Article 141 of the Constitution of India, in view of increasing number of inconsistent judgments?

Professor Upendra Baxi: Yes, some say two-judge bench and some say three-judge bench is better for precedential value. I think the ultimate answer is that a proper bench of five judges on fundamental issues is required (as mentioned above). It is an evolving process. The idea that a two judge bench may refer an issue to a larger bench is not an adequate measure. It is better that a larger bench decides.

Live Law:  Justice K.T.Thomas in an interview to Live law said Prof. UpendraBaxi’s view that “ a most constitutional  way of sincerely respecting human right to life lies in Supreme Court mandating a  practice requiring that the Court sits in its entirety and proceed to award death sentence even in the ‘rarest of rare cases’ by a unanimous verdict” requires serious consideration.. Do you think that life of a citizen is vital and before depriving him of his life, it has to be decided at least by a Constitution Bench?

Professor Upendra Baxi: I am grateful to Justice Thomas, whose opinions I am fond of for taking notice of my views. It has always been my view that if you cannot abolish Capital punishment then you must restrict it. I am in favour of abolishing capital punishment.Rarest of rare case does not mean a two judge or a three judge bench decides the matter. This doctrine has become judge centric. If you look at the law report, you will see a bench of three judges and each judge writes facts differently- the Kehar Singh case is a famous example. Rarest of rare case should mean that the whole court should meet and decide. Why can’t all judges sit and decide with unanimity. It is the highest decision you can take and hence the whole court should meet. In a property case such as GolakNath Case and KesavanandaBharati Case the whole court sat and decided the matters. When one is deciding on the question of life, the whole court should sit and pass the decision with unanimity and not majority. Then it becomes the rarest of rarest case.The decision on life of someone is the highest decision a Supreme Court can take. It should be decided by the whole Court. It will eliminate arbitrary discretion.

We are grateful and thank you for your time Sir. We wish you best of health and happiness.

T.Mohan and Live Law would like to thank our student reporters Shobhit Batta and Nikita Hora for their valuable assistance in doing this interview