When Professor upendra Baxi cracks his whiplash in a chivalrous defence of the judiciary (‘Unfair to Justices’, IE, December 9) he should have the last word. His decades of towering scholarship has said all that can be potentially said about the Indian judiciary. So I don’t intend to cross swords with him. But the booming power of his ideas weighs upon us. I wonder how the Professor Baxi from whom, even if we were not formally his students, learnt jurisprudence and demosprudence, would have reacted to this moment in judicial history. The Professor Baxi who responded to the column, “Unconstitutional Patriotism” (IE, December 3), looms large; but the Professor Baxi of our student notes looms larger still. And he might have said a thing or two different about the judiciary. Since in the end, either way, Professor Baxi will be right, it is worth reminding us of how the other Professor Baxi would have reacted.
The Professor Baxi of my notes would have been surprised by Professor Baxi’s response to ‘Unconstitutional Patriotism’. He would have been surprised to see Professor Baxi take recourse to an arid formalism. Of course, the Supreme Court grants us the opportunities to file curative petitions. But surely that cannot pre-empt or do away with the need for criticism and sometimes harsh criticism of the Court’s judgement. Criticism in no way does away with the Court’s authority or its formal processes. It is actually necessary for those processes and curative petitions to be infused with argument, and life itself. After all the Professor Baxi of my notes had in 1979, in Tukaram v/s State of Maharashtra, signed a letter to put public pressure on the Court which said “a case like this with its cold-blooded legalism snuffs out all aspirations for the protection of human rights of millions of Mathuras in the Indian countryside”. That Professor Baxi did not hide behind the possibility of a curative petition; he rightly thought severe public argument could potentially help the Court. Of course, the Court will have the final say.
Of course it would be foolish to indict the Court on the basis of one judgment. But that judgment is an example, not the full evidence. The Professor Baxi of my notes would have told me that the Court has not always drawn the sword on behalf of democracy and liberty. We just passed the anniversary of Rajbala v/s State of Haryana that disenfranchised Indian voters, hoary references to democracy as part of basic structure notwithstanding. The Court’s record on freedom of expression, the great judgment on 66A notwithstanding, is mixed. The issues in Naz are taking far too long to settle and yet another generation has to go through discrimination. I am sure the Professor Baxi of my notes would have used a generous dollop of Derrida to decode the performative side of the Court. What does it say of the Court when it caricatures itself by sending a contempt notice to one of their own former colleagues, but sits blithely on cases where its own orders in the Aadhar petition are not being enforced? One can go and draw up a balance sheet: Sometimes the Court will look good, sometimes bad.
But drawing up a balance sheet is not the point; it cannot be done in a column. I am surprised Professor Baxi would use the numerical argument that the nationalism case is only one case. This kind of reasoning, that rights are made insignificant by numbers, is exactly what led the Court astray in Naz. A few drops of poison are always numerically insignificant, but they can vitiate the whole drink. One book unjustly banned vitiates the meaning of freedom of expression, thousands of voters unconstitutionally disenfranchised vitiate the meaning of democracy, nationalism with the imprimatur of coercion vitiates both nationalism and freedom, privacy rights denied to sexual minorities damage the meaning of privacy, any autonomous institution taken over is a potential legal threat to all autonomous institutions. The Professor Baxi of my notes would have reminded me that one case is never just about one case. Liberty cannot be doled out in small chunks as and when it pleases a particular judge. Liberty is a whole, an atmosphere where one can go about one’s business with the assurance that the law will protect just claims to liberty. The rule of law requires reliability, not the lottery of a curative petition. Even one significant judgment can dent that reliability.
The Professor Baxi of my notes would have made a distinction between two kinds of impracticality. Sometimes an impractical order can point the direction in which we should head. There are uses of those kinds of impractical articulation. But it is important to remember that if the Court positions itself as an institution of governance, not just a court of law, it will be judged by those standards. It cannot have it both ways: Meddle in governance and the economy, then say that all that is doing is symbolic articulation for the future. This will generate scepticism. Let us grant the Court its right to impracticality. But the impracticality of the nationalism order is of the more insidious kind: It is not enunciating a distant ideal. It threatens to unleash conformity, vigilantism, and a counterproductively expanded role for state coercion. Surely the Gandhian anarchist, Professor Baxi of my notes, would have objected.
The Professor Baxi of my notes would have used J.L. Austin to decode the kind of speech act ‘Unconstitutional Patriotism’ was. It was a warning as much as a description. The judiciary is fighting for its independence. It is even more important for an independent judiciary to establish its authority by the quality of its reasoning, the transparency of its norms, and a general reputation that it will be on the side of liberty, democracy and justice. There is no point denying there are question marks over this. As political despotism looms, the judiciary will have to hold itself to an even higher standard to rally the people behind it. Criticism of public institutions is not an indictment as much as it is an act of love. As we are seeing in the US, when a constitutional culture becomes self satisfied, it ignores the rot within. Rather than putting a defensive cloak, the Professor Baxi of my notes would have criticised the judiciary as an act of love. For us, Professor Baxi will always have the last word. But we should not assume that at this juncture, liberty and democracy will have the last laugh. The courts will have to raise their game.