August 11, 2006
Prof Upendra Baxi (Photo: Wikipedia)
Scholar’s Challenge To Apex Court Globalisation !
By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Carnage witness Zahira Sheikh’s imprisonment reflects ”dual… standards” of access to justice manifest since globalisation, according to an Indian law scholar.
The view was voiced by Prof Upendra Baxi last weekend in a conference where participants were invited by Prime Minister Manmohan Singh to critically examine issues of the day.
Speaking on Access to Justice in a Globalised Economy, Prof Baxi cited half a dozen judicial orders he said erected a ”wall of difference” between ”globalised and de-globalised Indian citizens”.
A former Delhi University Vice Chancellor, Prof Baxi has served as Professor of Law at Delhi University as well as Warwick University in England and authored a large number of professional books and other publications.
The SC orders covered India’s accession to the World Trade Organisation, the $470 million Bhopal Gas disaster settlement, rejection of temps’ bid to regularise jobs, Narmada dam construction, demolitions and Best Bakery case.
Prof Baxi said the ”structural adjustment” of judicial role began with the apex court’s very stance on world trade conditionalities.
It was ”comprehensively urged” before the Court that India’s accession to the WTO ”violated not just Part 111 provisions but also the basic structure of the Constitution.
”The Court, overall, asked the petitioners to return to its powers as and when any such deleterious impact became more manifest!”
It ”did not even seek to match the blood-group of the WTO agreements, especially the TRIPS– Trade-Related Aspects of Intellectual Property Rights– with Parts 111 and IV of the Constitution.
”May I suggest that we read this decisional stance as the first step towards the structural adjustment of judicial review power, process, and activism?”
”A second momentous development towards the structural adjustment of judicial role and activism,” he said, occurred ”through the entirely unconscionable and unconstitutional judicial orders decreeing the infamous Bhopal settlement”– or what he called an instance of victims ”re-victimised”.
He said the Court not merely reduced the compensable amount from the ”Indian government computed US $3 billion to $470” million but also granted the Union Carbide full immunity from criminal proceedings.
It surrogated ”the Indian government as a fully-fledged clone of that multinational, and all its world-wide affine, in regard to all civil action, Indian and world-wide!
”Twenty-one years since, and I cannot speak of this without a lump in my heart, the catastroph(e) victims remain staggeringly re-victimised.”
He said a third story concerned the ”determined reversal of the proud labour jurisprudence of the Supreme Court itself.
”The juristic and juridical labours of” Justices VR Krishna Iyer, D A Desai, O Chinnappa Reddy, M P Thakkar, K Subba Rao, P B Gajendragadkar, Mohammed Hidyatuallah ”are now reversed by many a hurried stroke of insensitive judicial pen!
”A 2006 decision of the Supreme Court even goes so far as to ‘overrule’ without specific naming all prior judicial decisions.
”This judicial adventurism, there is no other appropriate way of naming this after all, remains an entirely unaccountable and rather unprecedented judicial technique in the annals of the Commonwealth judiciary!
”The learned Justice who writes the principal opinion even goes so far as to suggest that his predecessors laboured under a misimpression that ours was a socialist constitution!
”This eminent judge compelled a momentous jurisprudential anxiety for me; I scoured the histories of recent amendments to find whether some recent constitutional amendments had after all deleted this 42nd Amendment insertion to the Preamble to the Constitution!
”Allow me to bring to you the good news that this preambulatory recital has survived the ravages of contemporary Indian globalisation! The bad news is that now for the Supreme Court of India this makes not a tattle of difference!
”I am not saying at all the later Justices may not feel free to dissent from their predecessors. Nor am I saying that the predecessors may claim any prophetic wisdom over the future of constitutional development.
”However, I do wish to suggest with the fullest constitutional sincerity that in doing so they remain fully accountable at the bar of public reason. And in this they seem now altogether to collectively fail.”
Prof Baxi said a fourth instance of structural adjustment of judicial power was furnished by the Supreme Court’s ”meandering jurisprudence” concerning the Narmada Dam construction.
”At one decisional moment, we are told that the height of the dam may not be raised without the most solicitous regard for the human rights, and human futures, of the ousted project affected peoples.
”At another decisional moment stands enacted the unconstitutional pari passu principle under whose auspices submergence may actually occur with some indeterminate regard for relief, rehabilitation, and resettlement.
”At a third moment, the affected peoples stand somehow assured of that the Court is not powerless to render justice to the adversely affected peoples even as submergence occurs.
”Who knows what a fourth moment may after all turn out to be? The present writing on the judicial wall fully suggests the possibility that the Court may terminally declare that the tasks of relief, resettlement, and rehabilitations stand almost fully and magically accomplished!”
Prof Baxi said,”A fifth horrid story of the structurally adjusted judicial role and ‘responsibility’ stands now furnished by the judicially mandated/mediated sanction for the urban demolition drives that cruelly impose themselves on the bloodied bodies of the urban impoverished.
”Some recent judicial performances go so far as to fully suggest a total reversal of human rights to dignity and livelihood, which the Court itself since the Eighties indeed not too long ago so painstaking evolved.
”The enforced evacuees stand denied all rights of constitutional due process, including access to their erstwhile meagre belongings.
”The bulldozers remove the last sight of their existence as documented citizens; all evidence of title and occupation– including the only ‘passport’ they posses by way of pattas, their inchoate ‘title’ deeds, and prominently their ration cards) stand maliciously and wantonly destroyed.
”Not too long ago during the 1975-76 imposition of the internal Emergency, such happenings were poignantly described as emergency excesses.
”Today, these somehow constitute the badges of good governance!”
Prof Baxi said the sixth instance concerned ”the harsh way in which the Indian Supreme Court dealt with the ‘contempt’ committed by Zahira Sheikh.”
Here was ”an eye-witness to the destruction by arson of her own kin… by the Hindutva mobs,” treated ”as news/views ‘commodity’ in hyperglobalising Indian mass media… as a resource appropriated by local politicians and by some activists alike” and as a target of ”human rights and social movement activism.”
Prof Baxi saw Ms Sheikh as ”overall… a deeply traumatised victim of organised political catastrophe” compelled by the force of circumstance to make contradictory statements.
That is what finally decreed ”her fate as a contumacious Indian citizen worthy only of the most severe punishment in the annals of contempt jurisprudence.”
Prof Baxi noted how the same Court had remained ”largely lenient in its regard for Kalyan Singh for an objectively presented far worse egregious contumacious conduct.
”It also remained lenient for Aurundhati Roy, an NBA– Narmada Bachao Andolan– activist marshalling the power of International Union of Journalists, and Shiv Shankar, a former Union Law Minister, for a while marshalling the power of judicial elevation.
”Both of these remained far more contumacious; yet they were thought eligible for the otherwise rather relaxed standards of contempt jurisprudence. Yet, the Supreme Court leaned heavily on Zahira.
”How may we understand this judicial asymmetry in our, or indeed in any access talk save by the fact that that high political status was simply not available to Zahira?”
”To depict the scenario thus is not to present any mean-mouthed mode of attributing any class differential in access to justice.
”I only seek to service with the highest order of responsibility in discharging my citizen responsibility acting under my Part IV-A fundamental duties of Indian citizens, by highlighting differential practices of access to justice under the Indian Constitution.
”In the same spirit, some of us have now approached the President of India for pardoning Zahira; we know that this may not happen, although in a proud 50+year Indian democratic development this, it ought to.
”But this much remains clear: accesses to justice claims remain differentially distributed by the apex Court. Its ire at ‘contumacious’ conduct by public citizens is increasingly met by different standards for some de-globalised compatriots.
”The wall of difference thus erected between globalised and de-globalised Indian citizens seems to enact some contradictory, dual, even multiple, standards of differential access to justice.”
He said ”I sincerely hope… I (am) wrong in saying this. At the same moment, surely, all this should give us some pause in our parrot-like or His Globalising Master’s voice-type talk concerning ‘access to justice’.”
UNI MJ RP DS1110