Download - 2010. THE JUDICIARY AS A RESOURCE FOR INDIAN DEMOCRACY

Upendra Baxi, Article for Seminar, October 2010.

THE JUDICIARY AS A RESOURCE FOR INDIAN DEMOCRACY

UPENDRA BAXI

Towards Rudimentary Understanding of the Indian Constitution

A celebratory understanding Indian constitution as a robust text or entity that has worked

and survived for sixty plus years suggests the world-historic importance of the Indian

Constitution as the modern world’s first postcolonial constitution which has impacted on

many other forms that emerged later. It also extols the fact that the Constitution has found

general acceptance with the political classes, though often grudging the interpretive

supremacy of the Supreme Court of Indian (SCI) and, as compared with constitutional

experiences in South Asia and global South generally, the Indian armed forces have never

questioned the constitutional idea of India.

There are indeed many good reasons for describing the Indian Constitution [IC, hereafter] as

an inaugural postcolonial form. First, even as it replicates many aspects of the Government

of Indian Act, 1935, the IC creatively modifies the idea of constitutionalism by combining

four key ideas. The Constitution is about governance but it is also about social development

and further it is about the pursuit of rights and justice. These four ideas remain in dynamic

tension, at times even in contradiction, with each other. Governance is grounded in the

right of the people to adult suffrage (to contest and to vote at elections); representation is

the key to the idea of just governance. The idea of human and social development stands

enunciated in the founding values of the Preamble, the Part IV Directive Principles of State

Policy, and now Part IV-A enshrining fundamental duties of all citizens: the IC simply insists

on the understanding development as those plans, processes, and policies that

disproportionately benefit the worst- off Indian citizen–peoples.

Second, the IC describes Part 111 fundamental rights as rights to freedom—a right to state

and law free spaces. Yet Parliament may by law reasonably regulate or limit these rights

and this may not be done without the reasoned cooperation of the Supreme Court.

Constitutional reason often differs crucially from political reason influencing the decision to

restrict basic human rights. A rights- culture thus instituted is always crisis-ridden putting

Parliament often in opposition to the SCI and the peoples of India in opposition, at times,

against the Executive/Judicial combine. The question here does not concern merely the

distribution of the law-saying power of legislatures and courts but entails the contestation

about the justness of rights (Baxi, 2010) especially when the constitutional–haves claim all

the rights and have-nots not even a tattle of basic human rights and freedoms.

Third, the IC innovates the distinction between rights here-and –now enforceable and those

left to the ‘tender’ care of elected public officials. In the debate over parcelling rights into

Part 111 and Part IV (the social and economic rights named as Directive Principles), the

confounding fathers (since there were few founding mothers!) battled endlessly to enact a


wish –list for Part IV rights, leading T. T. Krishnamachari to warn the Constituent Assembly

not to convert Indian ‘social revolution into a dustbin’ (see, Austin, 1966; Baxi, 1967.) This

divide between two kinds of human rights anticipate the development of the International

Bill of Human Rights via the regimes of the covenant on civil and political rights and the

covenant on social, economic, cultural rights.

The SCI, and the High Courts, have over time chipped away this constitutional ‘Berlin Wall!’

Adjudicatory leadership now steadily transfers Part IV rights to Part 111 enforceable rights—

the most notable examples being the rights to livelihood, shelter, literacy and education,

and to environment, as integral aspects of the Article 21 rights to life and liberty (See, Sathe,

2002; Baxi, 2001; Fredman, 2008.)

Fourth, no serious-minded assessment of constitutional experience and development may

ignore the fact that the IC was written in the Holocaust of the Indian Partition.

Understandably then rights of cultural, religious, and educational minorities, often acquire

the visage of near-absolute rights. The normative concern for the human rights of the

indigenous peoples is indeed remarkable: the 6th Schedule of the IC even goes so far as to

suspend state and national legislation in favour of persevering the integrity of indigenous

law and custom. All this now stands re-contemplated by the insistence on women’s rights as

human rights.

The Right to Complex Equality

Fifth, and using here Michel Walzer’s notion of ‘complex’ (rather than Marc Galanter’s

‘competing’) equalities, one may note briefly the ways in which the IC (and adjudicative

leadership) seeks to render the ideas about equality before of law compatible with equal

opportunity of access as well as result for all.

This occurs in three broad ways. The first mode is the system of reservations which

prescribe numerical quotas for access to education and state employment not just for the

Scheduled Castes and Tribes but also for socially and educationally backward classes and

‘other backward classes.’ While the political state proceeds to identify ‘class’ with ‘castes,’

the constitutional state , especially as represented by the appellate judiciary, has had

considerable difficulties with this conflation. The SCI has thus found it necessary both to

limit the overall quotas to no more than 50% and to progressively exclude the creamy

layers, an act of adjudicative leadership fully contested by the political state.

The second mode is that of constitutional secularism (see generally Jacobsohn, 2003; Sen,

2007) which while providing all citizens with an equal right to freedom of religious belief and

practice, restricts it in relation to the dominant religious Hindu tradition. ‘Untouchability’ is

declared by the IC as violative of the right to equality of all citizens.’ The term is left

intentionally undefined but derives its core meaning from the freedom of temple-entry and

worship by the untouchables-- a main plank of freedom struggle as led by Mohandas


Gandhi. Over the years, the Indian judiciary has interpreted non-discrimination of the

grounds of ‘untouchability’ as inclusive of right to access to the sanctum sanctorum as well

as to sustain the claims of Dalit appointment of head presents in Hindu temples. The

exclusion of menstruating women from entering certain Hindu religious shrines (such as the

Sabri Mala temple) has been judicially held to violate the IC prohibition of immunity from

discrimination on the ground of gender and untouchability.

Babasaheb Bhim Rao Ambedkar conceived equality of opportunity beyond the ritual to

violent social exclusion. The IC as it emerges from the labours of the Constituent Assembly

attacks both forms of exclusion. The audacious normativity of the IC not merely declares the

practices of discrimination on the ground untouchability as constitutionally illegitimate but

also, for the first time in world constitutional annals, enacts constitutional criminal law

(Article 17.). The Constitution makes it an offence to recourse to such practices (as well as

those offending ‘rights against exploitation’ in Articles 23 and 24.) The concern about the

empirical efficacy surely remains important, even as I highlight the normative audacity see,

as regards the pollution-purity enforcing role of the dominant castes, Rao, 2009; and

Pratiksha Baxi, 2005.) Articles 17, 23, and 24 constitute the bleeding heart of the Indian

constitutionalism.

The third mode was Ambedkar’s imagination of participation as vehicle of complex

equality beyond ‘reservations’ in public services as such away; he sculpted the principles of

reservations of SC/ST communities in the representation principle. The constitutional right

of adult suffrage was qualified as regards the right to contest (only designated citizens

belonging to the scheduled castes and tribes may contest elections at which all may vote.)

Although Ambedkar thought of this as a temporary measure, this has now become an

essential feature of the IC, and even a part of the basic structure! Studies indicate different

perspectives on how far legislative reservations have worked to the advantage of the worst-

off among these communities; and successive efforts at creating 33% legislative reservations

for women in Parliament and State legislatures remain mired ( justifiably, in my view) over

whether this should not privilege the most disadvantaged women belonging to the most

depressed strata of Indian society.

Multilevel and Multicultural Ways of Governance

Lawpersons, and even political theorists, study the federal principle, design and detail in

terms of power-sharing between the Centre (the Union of India) and the constituent units of

the federation. Although constitutional studies constantly explore aspects of the federal

design, detail, and principle in terms of distribution of legislative and executive powers,

understanding this in terms of multilevel and multicultural governance has yet to fully

emerge.

Like most postcolonial constitutions, the IC furnishes patterns of asymmetrical federalism.

On this register, changes in the political state have meant a more genuine respect towards


the federal principle. For a long while the dominance of a single political party at the federal

level (the Congress Party of India) signified an excessive invocation of the (Article 356)

power to declare the President’s Rule—by dissolving or suspending state legislatures. The

growth of regional parties at the state levels led to a strident demand for constitutional

reform displaying a more sincere respect to states within the Indian Union. It is only the rise

of coalitional form of federal governance that now compels this deference. Noteworthy

remains of course the subjection of Article 326 power to the discipline of the Constitution in

the Bommai Case – federalism being declared as an essential feature of the democratic

republican Indian constitutional State.

The re-democratizing role of the SCI has not fully addressed the dimensions of economic

federalism. Neither the constitutional nor the political state has been able to address

adequately a just distribution of natural resource use. Revenues from ‘oil’ rich Indian States

have not been equitably shared; nor have been the regimes of exploration and exploitation

of other resources such as coal, iron ore, precious metals, and forest wealth. This is a large

story which I may not narrate here; yet this planned failure at equitable resource sharing

has not led to the indictment of the Indian Union as causing/fostering distinctive practices

of ‘internal colonization’ but has also led to the movements for self-determination, fuelling

the fire of insurgent counter-politics.

Even so, the success story of the linguistic reorganization of the constituent states is always

worth revisiting, because outside this India would have ceased to exist altogether, if the

suppression of linguistic and cultural identity was elevated as a master governance

principle. In this sense, the question of federalism emerges at a deeper level in terms of

encoding multicultural governance. Multilevel governance, now restoring constitutional

deference to urban and village level self governance, imbues a new future for the IC.

All this fully said, we need to grasp a whole lot better than seems the case the features of

asymmetrical federalism. This may not be achieved by any insistence requiring us to

understand the IC as a monolithic edifice. We need to pluralize the idea of the IC itself!

The Many Indian Constitutions

India has from the beginning a dual constitution —the civil and the military. Both are born

together and have coequally developed since the Independence. The states of insurgency in

the North- East and Jammu and Kashmir, and for short long while in Punjab– for example—

have continued to haunt the spirit and the letter of Indian constitutionalism. This has been

further aggravated by the steady, even exponential, rise of armed opposition groups (by

whatever name) that now constitute de facto extra-constitutional political formation in one-

third of India’s districts opposed to the de jure Indian constitutional State.

Without any further elaboration here, it needs saying that the Indian constitutional

development may not be understood outside the multitudinous Grounds Zero thus


perennially constituted and the specific practices of the Indian wars on, and of, terror. The

militarization of India governance and politics is a larger story and it is a mistake to think

that the 1975-76 Internal Emergency experience marked the beginning and end of the

narrative of constitutional authoritarianism in India. Question-marks continue to surround

the judicial and juridical re-democratizing potential of the Indian adjudicative leadership, if

only because the SCI has sustained constitutionality of dragnet prevention detention,

security, and now the anti-terrorism laws (Singh, 2009.) May be, one would wish to say that

the Indian Constitution and its ways distinguish themselves from some related postcolonial

experiences in Asia, Africa, and Latin America; if so, at the very least, we need to essay a

further comparative understanding, as yet not in sight.

The Seven Constitutions

Further alongside with this ling-standing conflict between the civil and military

constitutionalism, one needs to trace the seismic shifts that the Constitution has undergone,

so much so that we may not speak of a single Indian Constitution but have to address a

multiplicity of constitutions of India.

On my count there are at least seven Indian constitutions: [1] the text adopted in 1950; [2]

The Nehruvian Constitution, demanding a compelling respect by the SCI for parliamentary

sovereignty; [3] the 1973 Kesvananda Bharathi Constitution, a decision that confers

constituent power on the SCI, including the power to annul a constitutional amendment

otherwise duly made by Parliament; [4] the State Finance Capitalist Constitution presaged

by Indira Nehru Gandhi Constitution, via the nationalization of banks and insurance

industries and the abolition of the privy purses; [5] the Emergency Constitution of 1975-76;

[6] Post-emergency Constitution with marks both judicial populism as well as the emergence

of expansive judicial activism; and [7] the Neoliberal Constitution which redefines India as

vast global market fully at odds with the first, second, third, fourth, and the sixth

constitutions.

You may wish to say that these are distinct constitutional ‘moments,’ not by any means

many avatars of the IC. However, the languages of many constitutions alert us more sharply

to the nature of discontinuities, within which judicial and citizen interpretation of the IC

must occur.

For example, the post-emergency (sixth) constitution may not have occurred outside the

legacy of Jay Prakasah Narain’s total revolution movement which mobilized a distinctly pro-

people understanding of participatory reform of constitution and governance such as the

demand for proportional representation, renovation of Indian police as human rights

friendly structure and process, and a right to recall errant and corrupt legislators; however


such movements are difficult (to say the least) in the seventh constitution of a neoliberal,

hyperglobalizing India1 .

Apex Justices as Mediators of Executive Supremacy

In any event, underlying the seven forms are the ways of doing Indian constitutional, and

extra-constitutional, politics. To grasp this more conceptually, one needs to explicate

distinctions between the constitutional and political state forms. The constitutional State

(the normative and aspirational framework enunciating the desired social order) is almost

always heavily at odds with the political State (as framework of competition for political

power, or even the struggle to capture the constitutional State.) In a profound sense, then,

Justices as primary articulators of the constitutional state must always be in confrontation

with the leaders, agents, and managers of the political state. The latter has always insisted

on some or other notion of the ‘committed judiciary.’

With Jawaharlal Nehru, Parliamentary sovereignty was the norm, by which the judges were

judged; indeed, the very First Amendment that he initiated in so many words excluded

judicial scrutiny of laws included in the Ninth Schedule even when they violated

fundamental rights. Justice Hidayatuallah was later to describe ours as the only constitution

that ‘needs protection against itself!’

With Indira Nehru Gandhi what mattered was the language of the ‘committed judiciary’ --

the idea was much the same: the apex Justices may not contest the interpretation of the

constitution offered by the Supreme Executive. When pushed to the wall, as it were, Indira

Gandhi (and her arch-advisers) said that that ‘commitment’ after all meant commitment to

the constitution as established by law ( see Austin, 1999.) This shred to pieces the very idea

of IC as a ‘higher law.’ Indeed, the situation of this sort of commitment was well delineated

by a ‘underground’ Emergency- period cartoon which depicts a haughty disdain by a

bookseller who when asked for the copy of the latest IC admonished the customer to go

next door saying: ‘Sir, we do not sell periodicals here2!’

In case you were to find the distinction still unclear, it needs saying that it is the IC which

determines the validity of laws and executive action, and not the other way around! Like it

or leave it, the fact remains that the Constitution is what the Justice say what it is! And

what matters decisively here (for the future of Indian democracy and of human rights in

India) is the powerful idea that Justices may not, in deciding the meaning of the IC, follow

the election returns!

Put another way, holders of high judicial powers ought always to elevate the constitutional

idea of India beyond its regime-sponsored and expedient versions. Justices may they

1 See for a comparative description of the impact of globalization on constitutionalism, Schniderman,2009.

2 Indeed, for a long while after the Emergency, the Indian print media continued to refer to the IC as a

‘statue!’ This habit unfortunately still prevails in the globalizing 24/7 electronic media!


occasionally fail to so do; were they to systematically fail to translate high judicial power

into a fiduciary power (as form of social trust) the very idea of constitutional India would

disappear.

Still, in the Seventh Constitution, the languages of committed judiciary assume a new

visage. In the neoliberal India today Manmohan Singh constantly urges Justices not to cross

the ‘Lakhsman-Rekha’ between making of ‘policy’ and ‘applying’ law. When we recall that

this phrase is also the brand name for killing cockroaches as well, we realize that this Rekha

[bright -line]metaphor is also intended as a remedial pest control measure for judicial

activism!

Prime Ministers often tend to think that they are the embodiments of constitutional

patriotism, such that the Chief Justices of India (and the companion Justices) ought always

to follow their very own understanding of the meaning of constitutional commitment.

Fortunately, barring a handful of pusillanimous personages, the Indian Chief Justices have

steadfastly maintained that even when the interpretations offered by the Supreme

Executive remain eligible for the highest regard, this may not displace the constitutional

power and obligation of Justices to say what ‘rights’ and ‘justice’ require. In no event, is this

power coupled with a duty exhausted by judicial subservience to regime-favouring/fawning

adjudicatory leadership, as unfortunately happened during the days of the Internal-

Emergency of 1965-76.

Put summarily, if the Prime Ministers are leaders of the political state, the apex justices

ought always to remain the custodians of the constitutional state. And it has been India’s

good fortune, overall, that the latter have internalized this obligation.

The Achievements of Adjudicatory Leadership

Adjudicatory leadership is of course interpretive leadership but in my view also includes

organizational and managerial leadership of the judicial system as a whole3. The interpretive

leadership of the SCI and the Indian High Courts is of a very high order and has impacted on

3 I do not address this aspect here save to say the following: [1] the District Judiciary , not the ‘subordinate

judiciary’ is the more apt description because no judge acting within her jurisdiction may be subordinate to any other; [2] the in-visibalization of the district judiciary by the appellate jurisdictions is an unfortunate tendency, because the former bears the brunt of justice administration at the grassroots levels; [3] most eminent Justices of the SCI-- Justices H.R. Khanna and D.A. Desai (among significant others) -- have brought their vast experience district Justicing to the High Bench; and [4] for the most part, convictions ordered by the District Courts and reversed by the High Courts have been restored by the SCI. The Administrative Judge assigned by the Chief Justices of High Courts has considerable role in management and administration of the District judiciary; unfortunately we have no empirical assessment of how successful this ‘project’ is!

Most recent advances in pre-service and in-service education at various Judicial Academies do not seem to provide a learning experience for the appellate Justices, who instead (on my experience) speak to them, rather than with them.


the South Asian and some other Global South jurisdictions. The third and the sixth Indian

constitutions mark world- historic contributions. The doctrine of the basic structure of the

constitution whose essential features may not be amended away even by a unanimous

Parliament (the third constitution) has travelled well to Pakistan, Bangla Desh, and Nepal

contributing to a renaissance of the constitutional state over the intransigent political

state. The SCI has extended the doctrine beyond its original purpose: it has been held to

apply to exercises of constitutional powers (such as the powers to declare the President’s

Rule over the States) and even as a canon of constitutional interpretation (Krishnaswamy,

2009.)

It is in the sixth constitution that we find an implosion of judicial activism, most notably via

social action litigation---SAL (still miscalled public interest litigation- PIL.) The SCI creates a

new jurisdiction—the epistolary jurisdiction ( a process where citizens may write letters to

SCI which stand treated as a writ petitions for the enforcement of fundamental rights.) The

SCI not merely relaxes the concept of standing but radically democratizes; no longer has one

to show that one’s fundamental rights are affected to move the Supreme Court or the High

Courts, but it remains sufficient to show that one argues for the violations of the worst-ff

Indian citizens and persons within India’s jurisdiction. Other-regarding concern for human

rights has now become the order of the day and this concern has prompted a creative

partnership between active citizens and activist justices (see Sathe, 2002; Baxi, 2001.)

New human rights norms and standards not explicitly envisaged by the first constitution

stand judicially invented such as the right to privacy and dignity, the combined reading of

which gives us the recent Delhi High Court Naz Foundation decision, by Chief Justice A.P.

Shah and Justice Muralidhar, which declares as unconstitutional the criminalization of the

right to sexual orientation and conduct among consenting adults. Further, the SCI brings

back into the realm of the constitutional state declared to be unsuitable by the emerging

political state (such as the right to speedy trial, bail, compensation for injurious state action

or conduct.) This is scarcely an occasion to narrate the achievements any further (see Baxi,

2001, and literature therein referred; and Fredman, 2008.)

There is no question that judicial pronouncements of the SCI and High Courts have often

been ignored by the political State; indeed, how may it be otherwise? Yet, the SCI has

variously deployed its ‘hope and trust’ jurisdiction to persuade the recalcitrant executive;

and when this rhetoric has failed, taken some determined steps to discipline and punish an

errant executive.

Even more crucial remains the constitutional space provided by the SCI and High Courts for

the practices of human rights and social movement activism; this judicial creation of space-

time for activism has contributed to the growth of staying power of civil society

interventions against the sovereign prowess of the Indian State which transforms itself from

the ‘post’ to the ‘neo’ colonial formation, the latter so acutely described by Kwame

Nkrumah as ‘power without responsibility, and exploitation without redress.’ In a sense,


when the SCI and High Courts take cognizance via SAL of activist petitioners, and as much

time they take to finally decide on contestations, they also bestow on them a measure of

immunity from the repressive powers of the local political state. This aspect is often

unfortunately obscured by studies engaging judicial outcomes concerning contested

developmentalist projects

The Structural Adjustment of Indian Judicial Activism

The Seventh neo-liberal Constitution may ‘best’ be described as achieving this systemic

result. The fierce essence of the neoliberalism, Indian –style, means a near-complete

adjudicative reversal of the Sixth Constitution , in which form taking human and social

suffering seriously was understood as a necessary condition for taking human rights

seriously. This is no longer the case, and one has only to consider the quarter century old

underdressed sufferings of the Bhopal–violated (see, Baxi, 2010a.) The complete

cancellation by the SCI of its own proud record of protecting minimal human rights of

organized and disorganized ( a more accurate expression than the ‘un-organized) workers

provides another sphere of structural adjustment of Indian judicial activism. So do, despite

some rare surviving displays of judicial valour in Indian High Courts, and even the SCI aided

forms of physical exile and the symbolic in-visibalization of Indian’s impoverished (in India’s

Global Cities, poignantly testified by judicial indifference to these in the run-up to the

Commonwealth Games, 2010.)

At the same moment, the SCI has made some valiant strikes against the regimes of

governance corruption and regime –sponsored mass atrocities (as in Gujarat, 2002.) It has in

both the situations insisted on human rights-based governance. The SCI has displayed, on

some recent narratives, a judicial will to power to combat governance corruption. More

may be said concerning this but I must here desist because of space-constraints, save saying

that a new form of partnership between Justices and human rights and social movements

activists is at display under the Seventh Constitution.

Demosprudence and Our ways of Judging the Judges

As one historically privileged to initiate the SAL, and before this term was coined, I insisted

on saying that the SAL has converted the Supreme Court of India into a Court for the worst-

off Indian-citizen peoples.

‘Demosprudence’ is an emergent and fully contested term of art in the US constitutional

theory. This rubric at last takes more seriously the finite yet complex ‘dialogic relationship

between the courts and the people’ (Guinier, 2008.) As happens always with hegemonic

modes of production of constitutional knowledges, the notion remains entirely US-centric.

Its proponents see no comparative advantage in making any reference to the imagination

and experience of transformative constitution-making and development in the Global South

(Baxi, 2001,Baxi, 1989; see also, Ray, 2010.) In my view this new discursive term needs to


situate respect for the non- Euro American others as worth of worthy of dignity of

discourse. Until the comparative constitutional theorists begin to lisp the legendary name of

Justice Krishna Iyer, their understanding of ‘demosprudence’ may not even begin its

itinerary!

Judging the judges is a favourite pastime in India today: everyone has something unkind to

say about our justices and in the full knowledge that they may not respond back to such

criticism, outside a difficult recourse to the contempt of courts law and jurisprudence. How

far such criticism contributes to judicial accountability and autonomy is an important

question which should engage us all.

Episodic criticism is plentiful in many public fora: Parliamentary debates on judicial conduct

and decisions, fully protected by the privileges of Parliament; 24/7 mass media, newspaper

editorials and articles; party ‘intellectuals’; social movement and human rights activist

constituencies, and the Bar. Critics of justices rarely articulate standards by which we may

arrive at a socially responsible criticism of justices at work—a task presumably reserved only

for the law academics. So, we end up with plenty of criticism but no real critique. Some

recent outpouring on the Allahabad high Court decision on the Ayodhya case illustrates this

poignantly, where critics rush to print or television, while acknowledging that they have yet

not had the time to read the entire judgment!

The Indian Bar claims to be a judge of judges, an inheritor of the English tradition. However,

it may only fulfil this vaunted role were the Bar were to recover its character as a learned

profession (marked by self-regulation and rectitude) and incrementally shed the acquired

paradoxical traits of business and trade union of sorts. Thus means that the market for legal

services convert itself away from being a seller’s market and further that the profession

cease to be a very striking ‘profession’- in the sense that it recourses to strikes, often of long

duration, for all kinds of causes and often in the process lowering the dignity of the

profession and of courts by acts of verbal and even physical violence and intimidation. No

doubt, the leaders of the Bar condemn such incidents but neither they nor justices remain

able to ameliorate the situation in the long run.

Overall, the Indian Bar may not claim to the best ‘judge of judges’ without addressing its

own pathologies—the endless manipulation of adjudicative time via adjournments,

practices of tutoring ‘witnesses’ (witness-proofing), converting sworn affidavits as forms of

client-favouring tissue of falsehoods, setting thus at naught the law against perjury, and

weak self-regulation. The Indian Bar has no doubt has been in the forefront of the exposé

of judicial corruptibility, yet it has never found a right moment to cleanse its own Aegean

Stables! Judicial corruptibility is an evil that needs combating; but how may this be ever fully

accomplished outside an ethical cleansing of the Indian legal profession?

In sum then the tasks that lie ahead suggest that we all develop articulate public standards

for judging our judges; the public sphere cannot be constituted only by traffic of ad hoc


opinions. And no judicial reform agenda will ever fructify until the asymmetries of power

between justices and the legal profession are at least minimized.

Criticism of judicial performance is no doubt an inestimable democratic virtue but it is also

hard work. Easy-minded criticisms of justices at work do not replenish either the Indian

democratic future or the future of human rights in India.

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REFERENCES

Austin Granville (1999), Working a Democratic Constitution (Delhi, Oxford University Press.)

Austin, Granville (1966), The Indian Constitution: Cornerstone of a Nation (Delhi, Oxford University Press.) Baxi, Pratiksha (2005) The Social and Juridical Framework of Rape in India: Case Studies in

Gujarat.(Delhi School of Economics, University of Delhi, Unpublished Ph.D. Thesis;

forthcoming Delhi, Oxford University Press, 2011.)

Baxi, Upendra (1967) “‘The Little Done, The Vast Undone’: Reflections on Reading Granville Austin’s The Indian Constitution,’ Journal of the Indian Law Institute 9: 323- 430 . Baxi, Upendra (1989) The Indian Supreme Court and Politics (Lucknow, The Eastern Book Co.)

Baxi, Upendra (2001) ‘The Avatars of Judicial Activism: Explorations in the Geography of (In)

Justice’, in S.K. Verma and Kusum (eds.), Fifty Years of the Supreme Court of India: Its Grasp

and Reach, 156–209 (Delhi: Oxford University Press and Indian Law Institute.)

Baxi, Upendra (2010a), ‘Writing About Impunity and Environment: the ‘Silver Jubilee’ of the

Bhopal Catastrophe,’ Journal of Human Rights and the Environment, 1:1, pp. 23–44

Baxi, Upendra (2010), ‘The Justice of Human Rights in Indian Constitutionalism,’ in Akash

Singh and Silika Mohapatra (Ed.), Indian Political Thought: A Reader (Chapter 17; London &

New York: Routledge.)

Fredman, Sandra (2008) Human Rights Transformed: Positive Rights and Positive Duties (

Oxford, Oxford University Press.)

Guinier, Lani (2007) ‘The Supreme Court 2007: Foreword: Demosprudence Through Dissent,‘ 22 Harvard Law Review 4 – 138. Jacobsohn, Gary (2003) The Wheel of Law: Indian Secularism in a Comparative Context (Delhi, Oxford University Press.)


Krishnaswamy, Sudhir (2009) Democracy and Constitutionalism (Delhi, Oxford University

Press.

Rao, Anupama (2009) The Caste Question: Dalits and the Politics of Modern Asia, (Berkeley,

University of California Press.)

Ray, Brian (2010) ‘Demosprudence in Comparative Perspective,’ (forthcoming.)

Sathe, S. P. (2002) Judicial Activism in India: Transgressing Borders and Enforcing Limits (

Delhi, Oxford University Press.)

Schneiderman, David (2008) Constitutionalizing Economic Globalization: Investment Rules

and Democracy’s Promise (Cambridge, Cambridge University Press.)

Sen, Ronojoy (2007) Legalizing Religion (with commentary by Upendra Baxi) Policy Studies 30 ( Washington DC, East West Centre.) Singh, Ujjwal Kumar (2007) The State, Democracy, and Anti-Terror Laws in India (New Delhi,

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