Cockroaches? India’s judges pursue ‘foolish excellence’ of Constitution: Upendra Baxi
In a controversial assertion, top legal expert Upendra Baxi has sought to question India’s Constitution makers for neglecting human rights and social justice. Addressing an elite audience in Ahmedabad, Prof Baxi said, the constitutional idea of India enunciated by the Constituent Assembly tried to resolve four key conflicting concepts: governance, development, rights and justice.
By Rajiv Shah
However, he regretted, there has been a disproportionate emphasis on governance and development, even as undermining the two other key factors, rights and justice. According to him, while 90% of the Indian Constitution is about governance and development, only 10% of it is about rights and justice.
Prof Baxi’s strong words on India’s Constitution makers, though without naming them, crucially come at a time when a new wave of appears to have engulfed India in defence of the Constitution against the backdrop of the Government of India’s new Citizenship Amendment Act (CAA) and the proposed National Citizens Register (NCR), which allegedly seek to make religion as the basis of granting citizenship.
Those protesting against CAA and NRC are found to be strongly “defending” the Constitution, especially Article 14, which promises equality before law irrespective of religion, caste, creed, sex, race or region, even as swearing by Gandhiji and Dr BR Ambedkar. They are facing stiff resistance from country’s top BJP rulers. Nearly 25 persons demonstrating against CAA-NCR have died, while scores have been injured.
Prof Baxi, 81, who is professor of law at the University of Warwick, United Kingdom, and has been vice-chancellor of Delhi University, was delivering the Dr Ashok Hirway Memorial Lecture, organised by the Centre for Development Alternatives (CFDA), Ahmedabad, on December 23. Husband of well-known economist, Indira Hirway, director, CFDA, late Dr Ashok Hirway did his PhD in law at the age of 75.
Prof Baxi’s statement comes at a time when those protesting against CAA-NRC are opposing ‘dilution’ of Indian Constitution
Titled “The Directive Principles of State Policy, Fundamental Duties of Citizens, and Human Rights: Fools Rush in Where Angels Fear to Tread”, Prof Baxi sought to “suggest” during the 45-minute lecture that India’s constitution-making “preceded at least by six decades of the Indian freedom struggle”, which is ushered in a new India, “an era of foolish excellence.”
Wondering as to why human rights and justice are mainly a part of the Directive Principles of the State Policy, which are legally not enforceable but are merely a moral binding, Prof Baxi, indicated, very few duties had been made legally obligatory in the Directive Principles, one of them being being making Right to Education (RTE) compulsory.
Prof Baxi took referred to Nobel laureate in economics and a strong critic of the present BJP dispensation in India, Prof Amartya Sen, who developed the notion of “rational fools” in the context of the “economic man”, which in turn is analogous to a similar term floated by a wel-known philosopher of the last century, Emmanuel Levinas. Levinas, said Prof Baxi, “reminded us of the virtue of ‘foolish excellence’.”
According to Prof Baxi, “If Amartya Sen was questioning the model of the ‘economic man’ as an egoistic being always intent on maximizing his or her preferences devoid entirely of sympathy or commitment to the plight of others, Emmanuel Levinas was concerned with development of an ethical philosophy that accorded non-negotiable responsibility towards the vulnerable other.”
Given this framework, the top legal expert said, what we have today in India are judges as “constitutional cockroaches”, who pursue “foolish excellence”, as they allegedly seek to defend the owners of the capital, who are “rational fools”, not caring for anything but profit and the present, but neither the past nor the future.
Stating that judges are part of the hierarchical structure, in which, as Brahmins, they are among those who sit at the very top, Prof Baxi said, instead of providing access of justice, what they actually do is to “empower the already empowered”.
Offering the example of Gujarat in this context, where judges allow defamation suits filed for a mere Rs 75,000, which is peanuts for the corporates, one reason why they all rush for it in the state, he underlined, this significantly helps “suppress dissent.”