Jindal Global Law Review


VOLUME 9, ISSUE 2, 2018

Issue Editors: Debolina Dutta, Adil Hasan Khan, Oishik Sircar

Editor's Introduction : Upendra Baxi in our times: law, life, liminality, Debolina Dutta, Adil Hasan Khan and Oishik Sircar (PDF)


1. For ‘’…those who…lost their Utopias…but…still rebel…’’: taking up Upendra Baxi’s Bequixotements in times of crisis

      Adil Hasan Khan
      Article (PDF) | Abstract

This article offers a biography of Professor Upendra Baxi, as a Southern international lawyer, so as to draw from his conduct a training in how international lawyers could authorize other worlds (and their international laws) amidst these times of crisis.
Hasan Khan, A. Jindal Global Law Review (2018) 9: 155. https://doi.org/10.1007/s41020-018-0075-1.


2. Another story of the open letter: an inheritance of relationship-making
     Debolina Dutta
     Article (PDF) | Abstract

In 1979, four law professors wrote the “Open Letter” to the Chief Justice of India (OL). It was written as a way of registering public protest against a decision of the Supreme Court pertaining to the rape of a young tribal girl, Mathura, in police custody. Within contemporary Indian feminist jurisprudential accounts, this text has attained iconic status. The OL has been hailed for mobilising a nationwide women’s movement around the issue of rape and also for initiating rape law reform. In this paper, I move away from the iconicity attached to the OL in the annals of feminist jurisprudence, without disavowing its importance. By locating my reading in a backdrop of our current climate that is saturated with animosities, I attempt to tell a different story about it. I look at how Baxi’s scholarly practice of co-authoring the OL inhabited a conduct of relations with his co-authors, a judge, the tribal girl, Mathura, and his academic discipline of law in a post-Emergency India. In doing so, I weave a story about the OL as an everyday practice of reciprocal relationship-making, in its own time and place. My account of the OL attends to how, by creating reciprocal relations, we might be able to re-organise our worlds into a place that we desire to inhabit.
Dutta, D. Jindal Global Law Review (2018) 9: 181. https://doi.org/10.1007/s41020-018-0080-4.


3. Professor of pathos: Upendra Baxi’s minor jurisprudence
     Oishik Sircar
     Article (PDF) | Abstract

What is Upendra Baxi’s contribution to jurisprudence in India? Baxi’s single-most important contribution to jurisprudence in India has been to infuse legal scholarship with pathos – the pathos of suffering, resistance, responsibility and care. An apocryphal reading of Baxi’s work might make us consider his passionate heft as a sentimental inflection, but it will not necessarily lead us to consider this as a jurisprudence. Baxi’s pathos endeavors to unmask law’s violence and silence about the suffering of those on the margins (even as he has offered ways of working with law); and in turn Baxi’s pathos has become marginal to the teaching and learning of jurisprudence in India. Indian legal education is marked by a simultaneous presence and absence of Baxi. His work is acclaimed for its rigorous content, but not necessarily for its innovative forms. While his politics is contingently celebrated, his aesthetics is considered removed from jurisprudential insight. It might be well accepted that Baxi writes with pathos, but does that pathos constitute a jurisprudence? In this essay, I offer some illustrations of Baxi’s minor jurisprudence by looking at three particular forms of writings which don’t get counted as part of his jurisprudential oeuvre: his lesser known works in the field of law, acknowledgements and footnotes that appear on the margins of major works, and tributes written by him on the passing of his mentors and comrades. My choice of the selected references has to do particularly with how these writings have helped me think through my own work as a law teacher and scholar.
Sircar, O. Jindal Global Law Review (2018) 9: 203. https://doi.org/10.1007/s41020-018-0066-2.


4. Heard melodies are sweet but those unheard are sweeter’: an unfinished response
     Upendra Baxi
     Article (PDF) | Abstract

This brief response to a symposium discusses some of the themes sounded by Oishik Sircar (pathos, minor literatures, and benign neglect), Adil Hasan Khan (Quixotism in international law from the antechambers of history of interregnums) and Debolina Dutta (relatedness as a virtue of care and responsibility in doing legal pedagogy, and social activism).
Baxi, U. Jindal Global Law Review (2018) 9: 223. https://doi.org/10.1007/s41020-018-0076-0.


5. Reciprocal relations: formations of the office of legal scholar
     Shaun McVeigh
     Article (PDF) | Abstract

Professor Upendra Baxi has flourished in many different offices or roles—as scholar, teacher, advisor, administrator and as an executive officer of the university. This article comments on the ways in which a training in conduct as a legal scholar might be inherited and reciprocated. It does by so considering the ways in which Debolina Dutta, Adil Hasan Khan and Oishik Sircar have responded to Baxi’s teaching in terms of both a training in the conduct of lawful relations, and as an exemplary performance in the cultivation of the persona and office of scholar, in time and place.
McVeigh, S. Jindal Global Law Review (2018) 9: 231. https://doi.org/10.1007/s41020-018-0077-z.


6. Letters to Kaka: post-card-images of Upendra Baxi
     Pratiksha Baxi and Viplav Baxi
     Article (PDF) | Abstract

This essay weaves together post-card images of Upendra Baxi’s formative life as a student at Berkeley, California in the 1960s. As a law student in Berkeley from 1964–1966, Upen wrote long letters every other week to his father, Vishnuprasad Venilal Baxi (1905–1990) whom everyone called Kaka. Through these letters we represent fragments of his life as a student, catalogue the courses he read and chronicle his first meeting with the Austrian jurist, Professor Hans Kelsen. The first part of the essay brings together fragments of the letters Upen wrote to his father. The second part of this essay turns to Upen’s use of the form of letters as crafting a specific tactic of speaking against power. We reflect on the link between the biographical and the intellectual. The link between the two parts of this essay—life and law—is liminal. To the many insightful analyses of the Mathura Open Letter and the birth of epistolary jurisdiction, we add a biographical footnote that privileges letter writing as a form of relatedness in critical solidarity. Upen’s literary inheritance, especially of writing letters as a form of forging kinship and relatedness inflects how he writes of law and life.
Baxi, P. & Baxi, V. Jindal Global Law Review (2018) 9: 239. https://doi.org/10.1007/s41020-018-0071-5.


7. Teaching Baxi and learning from him: the symbiotic relationship between learning and teaching
     Amita Dhanda
    Article (PDF) | Abstract

Reflective teaching devises methodology for transacting the learning process. The creation of this methodology is largely an unspoken enterprise in India. This piece breaks that silence in tribute to Upendra Baxi, one of the most charismatic law teachers in the country. The purpose of sharing Baxi’s methodology of learning and teaching is to show how non-hierarchical learning happens and why such learning is sine qua non to mentoring students and nurturing scholarship. Good teaching practices can be replicated only if they are documented and disseminated. Such documentation can enable the institutionalisation of robust learning methods. Institutional incorporation will bring home the symbiotic relationship between learning and teaching, as well as teaching and research. This piece on Baxian teaching practices, and the lessons they impart, is an effort in that direction.
Dhanda, A. Jindal Global Law Review (2018) 9: 257. https://doi.org/10.1007/s41020-018-0069-z.


8. Fragments on reading and teaching Baxi: pedagogy, deconstruction, style
    Arun Sagar
    Article (PDF) | Abstract

In this article I reflect on some aspects of Baxi’s essay “Law and State-Regulated Capitalism in India” (1991). I wish to evoke, firstly, how Baxi’s critique of Indian law allows students to experience ‘negative thinking’ through its undermining of basic assumptions about law and the State. Secondly, I attempt to make sense of Baxi’s reference to ‘law’s illegalities’ by using Derrida’s conception of the impossibility of fixing the limit between the legal and the illegal, which is associated with the impossibility of justice itself. Finally, I offer a brief analysis of some technical aspects of Baxi’s writing style to show how the text’s powerful literary properties shape our experience of its argument.
Sagar, A. Jindal Global Law Review (2018) 9: 267. https://doi.org/10.1007/s41020-018-0068-0.


9. Teacher provocateur: Hedonism and the humanities
     Brinda Bose
     Article (PDF) | Abstract

This intense engagement with Upendra Baxi’s essay, “Teaching as Provocation” (1990) reads it as an exemplar both for, and of, the humanities. Baxi’s exhortation that a teacher must be a ‘hedonist’ (rather than a ‘rationalist’ who, opposed to risk, is dull and reasonable), is one that looks to life and the arts for its inspiration, as the humanities must; it is also an essay that exemplifies humanities methods that make it deliberately conversational and argumentative at once, given to detours and asides, joyful and tentative in turn, hailing literary references via inexact memory: proposing a method of teaching by enacting it. Parsing Baxi’s extended proposition to ‘teach by provocation’ as a ‘hedonist’ in a democratic classroom, this response looks to the poetry of TS Eliot, which Baxi quotes, for parallels between the teacher and the poet. Like poets, the hedonist teacher dreams of freedom to dare–here in the classroom, where teachers and students are equals. The hedonist experiences life in its fullness and its excess, and this encounter with Baxi’s hedonist teacher-learner takes pleasure in appropriating such an adventure for the humanities classroom, as well as in suggesting that Baxi deploys what could be claimed as humanities methods in laying out his provocations in the essay.
Bose, B. Jindal Global Law Review (2018) 9: 279. https://doi.org/10.1007/s41020-018-0067-1.


10. Human rights and its future: some reflections
      Saumya Uma and Arvind Narrain
      Article (PDF) | Abstract

This article seeks to explore some of the key ideas of Upendra Baxi’s only book length study of human rights, namely The Future of Human Rights, and its relevance to the contemporary human rights context in India. In particular, this article explores the implications of seeing human rights as the product of ‘communities of resistance and people in struggle’. In a highly original intervention on the question of the ‘origins of human rights’, Baxi moves away from the state as the originator of human rights to center people’s resistance movements as articulators and developers of the language of human rights. This is a powerful critique of the idea that human rights are a ‘gift from the West to the rest’.
Uma, S. & Narrain, A. Jindal Global Law Review (2018) 9: 287. https://doi.org/10.1007/s41020-018-0070-6.


11. A Co-traveler in the long road to decriminalisation: Upendra Baxi’s engagement with the queer movement in India
      Siddharth Narrain
       Article (PDF) | Abstract

Upendra Baxi is one of the few legal scholars of his generation to have consistently engaged with the queer movement and the legal struggle for decriminalisation of homosexuality in India. In this article, I outline three key moments in Baxi’s engagement with queer politics—his foreword to the groundbreaking 2003 PUCL-K report on human rights violations against the transgender community in Karnataka, his public responses to the Delhi High Court’s Naz Foundation decision in 2009, and its overruling by the Supreme Court in the Koushal judgment in 2013. I conclude by selecting parts of the Supreme Court’s recent decision in Navtej Singh Johar overturning Koushal, that resonate strongly with Baxi’s writing on this theme.
Narrain, S. Jindal Global Law Review (2018) 9: 299. https://doi.org/10.1007/s41020-018-0072-4.


12. Upendra Baxi: feminism, law, and the human
       Shirin M. Rai
       Article (PDF) | Abstract

This short tribute to Upendra Baxi’s work builds a conversation between his insights and my own work. I show how Baxi’s oeuvre inspires me to think through some of the key feminist debates, ranging from what it means to be human to the politics of solidarity. I do this by discussing Baxi’s intellectual as well as activist work, which has inspired scholars and those engaged in social movement campaigns for gender justice. This continuing solidarity across borders of thinking and acting is truly inspirational.
Rai, S.M. Jindal Global Law Review (2018) 9: 307. https://doi.org/10.1007/s41020-018-0078-y.


13. Voicing suffering and commitment of the intellectual
       Sam Adelman and Abdul Paliwala
       Article (PDF) | Abstract

How can we explain the complexities of Upendra Baxi’s lifework? He is committed to activism yet is attached to complex theorising; he is committed to the Global South yet has a deep engagement with Northern thinking; he makes a trenchant critique of human rights and law while asserting the importance of human rights and the rule of law; he is committed to human social justice while asserting the importance of climate justice. This article explores Baxi’s approach to the relationship between activism and theory, to constitutionalism and the rule of law, to human rights and to climate justice and suggests that any perplexity is resolved through his commitment to giving voice to and alleviating the plight of the impoverished, the disempowered, the suffering, and the rightless in his native India and elsewhere.
Adelman, S. & Paliwala, A. Jindal Global Law Review (2018) 9: 315. https://doi.org/10.1007/s41020-018-0074-2.


14. Reading Upendra Baxi as a guide to the study Indian constitutionalism: a comment
      Matthew John
      Article (PDF) | Abstract

This short comment is an attempt to zero in on the prodigious work of Professor Upendra Baxi, to locate him as a scholar of the material and contextual constitution. Having done so, it attempts to illustrate the power of the material constitution through my work and interests in Indian constitutional practice. Broadly, it plots a rough and idiosyncratic outline of the imprint of Baxi’s work on the study of Indian constitutionalism.
John, M. Jindal Global Law Review (2018) 9: 327. https://doi.org/10.1007/s41020-018-0073-3.


15. A republic of petty bureaucrats: Upendra Baxi and the pathologies of civil service jurisprudence
      Rohit De
      Article (PDF) | Abstract

The enactment of the Indian Constitution witnessed an explosion of litigation by civil servants successfully suing the state over questions of appointment, transfers, promotion and benefits. Public service law has generated a voluminous body of jurisprudence and sustained the practice of several lawyers. Upendra Baxi was the first scholar to point out that this jurisprudence poses a fundamental ‘identity crisis’ of the Indian state, where civil servants as allies of their political leaders have no hesitation riding over the rights of citizens but as adversaries come to courts attacking the political leadership for denying them their rights. This paper situates Upendra Baxi’s introduction to Justice Rama Jois’s book on service laws as the basis to understand the pathologies of power within the Indian Republic arguing that civil service litigation demonstrates both the intransigence of postcolonial state power and constructs the autonomy of the judiciary and the legal profession. Civil servants are simultaneously the arm of the state but also provide the labour of the state. To understand Baxi’s intervention, the paper argues, one has to historicize the ‘government job’ in India as a property resource and rethink the bureaucracy as simultaneously embodying the state and being a form of labour for the state.
De, R. Jindal Global Law Review (2018) 9: 335. https://doi.org/10.1007/s41020-018-0079-x.


16. Human rights and its future: some reflections
       Saumya Uma and Arvind Narrain
       Article (PDF) | Abstract

This article seeks to explore some of the key ideas of Upendra Baxi’s only book length study of human rights, namely The Future of Human Rights, and its relevance to the contemporary human rights context in India. In particular, this article explores the implications of seeing human rights as the product of ‘communities of resistance and people in struggle’. In a highly original intervention on the question of the ‘origins of human rights’, Baxi moves away from the state as the originator of human rights to center people’s resistance movements as articulators and developers of the language of human rights. This is a powerful critique of the idea that human rights are a ‘gift from the West to the rest’.
Uma, S. & Narrain, A. Jindal Global Law Review (2018) 9: 287. https://doi.org/10.1007/s41020-018-0070-6.


17. The southern jurist as a teacher of laws: an interview with Upendra Baxi
       Sundhya Pahuja, Adil Hasan Khan
       Article (PDF) | Abstract

This interview was conducted with Upendra Baxi in early October, 2015 as part of the authors’ Eminent Jurists Video Archive Project. The interview covers Baxi’s formative early years in Rajkot, his education and taking up of a life of a legal scholar, including his basic legal training at the Government Law College in Bombay, graduate education at Berkeley (California), and his early career as a lecturer at the University of Sydney. In a wide ranging discussion, with his usual mixture of intellectual dexterity, endless generosity and good humour, Baxi illuminatingly discusses his understanding of the significant notions of normative expectations, eurocentrism, self-determination, along with the ongoing significance and legacies of B.R. Ambedkar and M.K. Gandhi, the experience of proposing (and eventually teaching) a course on aboriginal peoples’ rights in a setter-colony, and the duties and responsibilities that come with inhabiting the roles of being teachers and students of law, amongst other things.
Pahuja, S. & Hasan Khan, A. Jindal Global Law Review (2018) 9: 351. https://doi.org/10.1007/s41020-018-0081-3.