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Inaugural Function

ILI Golden Jubilee 1956-2006

ACCESS TO JUSTICE IN A GLOBALISED ECONOMY:


SOME REFLECTIONS
Upendra Baxi *

I
It is indeed a very great honour to have been invited to this occasion. To use the idiom of the present
session, I would like to thank all the service providers, independent or otherwise, w h o have given me access to
this session 1 !
However speaking for myself, simply because I may never dare in my finite lifetime to speak for my
distinguished friend Madhava Menon, I must at the outset say that it would be wholly unbecoming for me even
to think that I may in any way represent the community of thinkers and researchers w h o have nourished the
Indian Law Institute, and through it contributed n o t merely to the renaissance of Indian legal education and
research but also of the Indian ways of lawyering, and justicing. Even though the overall conference time was
limited, I cannot help saying outright that we should have found some scope for the dignity of voice and
representation from India's leading women and feminist legal/juristic scholars and for a further richer diversity
of scholarly traditions to symbolize the achievement of the ILI.
I do hope that that the Institute will organize a series of national and regional seminars and symposia on
its Golden Jubilee Year. I also hope that the Institute will find it possible to honour the founding directors,
Professor A.T. Markose, G.S. Sharma, M .P. Jain, and S.N. Jain, among them, by a special commemorative
publication 2 . N o t to do so would be to impede future access to pioneering visions and leadership practices in
regenerating national legal research cultures. Well may we ask: What may we learn in our present failures from
their success stories? And indeed what may we also learn from where they precisely failed to achieve what they
set out to accomplish? Such reflexivity alone remains the best assurance for future renaissance of the Indian
Law Institute. Let it be fully recalled that the Institute was hailed by Drs. Rajendra Prasad and K.M. Munshi in
terms of its future potential; while the Institute provides an inestimable resource of intimate conversation
between academics, lawpersons, and apex Justices, the Golden Jubilee occasion ought to provide scope for a
fuller understanding of the original foundational promise and contemporary peril.

Professor of Law, University of Warwick; formerly Vice-Chancellor and Professor of Law, University of Delhi.
U.Baxi@warwick.ac.uk.
This exigency of a public presentation meant that I had to expunge many parts of the original text, which I now here
reintroduce somewhat, in partial modification of the plenary address delivered on August 5, 2006. I include some
additional extempore remarks, rectify an egregious error in the original presentation, and clarify some points of the
presentation. However, the 'basic structure' of the presentation remains intact.
This volume may also honour others eminent scholars such as Professors R.U. Singh (Lucknow), P.K. Tripathi and
K. Ramaswamy (Delhi) Anandjee, Benaras), T.S. Rama Rao (Madras) and B.S. Murhty (Vizag), S.N. Saraf (Jammu)
and S. K. Agarwala and S.P Sathe (Pune), not here to mention the names of such eminent scholars as J. D. M. Duncan
Derret, Anthony Blackshield, Marc Galanter, Dieter Conrad, Lotika Sarkar, who I had the honour to invite as the
ILI distinguished research fellows

Inaugural Function

ILI Golden Jubilee 1956-2006

II
Allow me to make one general and extended preliminary remark concerning the overall theme of this
Conference: 'Equity and Equality in a Market Economy.'
This is indeed a puzzling theme because central to the notion of the market itself are two institutions of
law: the right to private property, in all its sacrosanctity, over the means of production and the right of freedom
to contract. Both these notions put together signify the Rule by Capital, not any conception of the Rule of Law
guided by equity and equality, conceived either constitutionally or in terms of basic human rights and fundamental
freedoms. O n c e we accept the right to private property in the means of production, we also accept more or less
the right of the billionaires to remain super-rich and the plight of the most impoverished to be super-poor. We
further accept that both the freedom to own property and freedom of contract implv the right to inflict lawful
harm on others.
T h e elegant expression 'market economy' conceals more than it reveals. To understand it rather fully, we
need to grasp the distinction between production and seduction. T h e French postmodernist thinker Jean
Braudillard, in his small monograph The Mirror of Production, educated us in the meaning of this distinction:
production makes invisible things visible; in contrast seduction makes the previously visible things invisible. We
must surely ask what the Indian Consntution thus produced and the seduction now entailed in the current A g e
of Reforms.'
For one thing, the labours of Indian constitution-makers made fully legible many contradictions between
social, economic, and political life, about which Babasaheb Ambedkar spoke about so movingly at the m o m e n t
of the adoption of the Constitution. His speech concerning the 'life of contradictions' frequently adorns the
discourse of the Supreme Court of India. These contradictions were specifically highlighted by the proclamation
of the values of equitable social development in a postcolonial India paired with a grudging insertion of
Article 31 rights to private property. T h e history of judicial interpretation and constitutional amendments
from the First to the Forty7 Fourth amendmentarchives fully the endeavour to regulate private property in the
means of production in the name of equity and equality offered by state regulation. True, the 44 th amendment
finally abolished the right to property, or rather demoted it to a status of merely a constitutional right. But this
came too late and constituted too little to serve the cause of equality and equity in constitutional development.
I cannot pursue this enormous narrative toda}', save to remind us all that the Indian Supreme Court has now
fully reverted to its adjudicatory policy stance in the first three decades of Indian constitutional interpretation
which entrenched contract and property above all fundamental rights. Five out of the six stories that I present
later fully illustrate this trend.
T h e seduction occurs when the preambulatory values, the fundamental rights of the masses of Indian
impoverished, and the Directive Principles of State Policy, and Fundamental Duties of all Citizens, are rendered
relatively invisible by apex policy-makers and summit Justices alike. The Directives in particular represent a
vision of constitutional development ill-suited to the contemporary era of economic reforms.
We have been asked variously, however, at the inaugural occasion yesterday the ways in which Indian legal
education, research, and profession, even the judiciary, may service the needs of globalised market. The learned
Prime Minister urged us to realize that the 'legal world has become a global village' and that globalisation
signifies vast opportunities for us all to become world-class players in the global 'markets of law' He urged us
to improve 'the quality- of public discourse' to serve the 'needs of the country.' But overall these needs remained
defined and described in terms of India as a global market player. In effect, the learned Prime Minister, and
Honourable Law Minister asked law students, teachers, and professionals, not so much to become soldiers of

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ILI Golden Jubilee 1956-2006

justice but rather to act as the cohorts of global capitalism.


At least, that is how I received their entirely understandable message! I suspect on a close listening of the
speech of the leaned Chief Justice that he may have had some partial caveats to offer but I remain unsure and
request your cooperation in understanding his subtexts a little better.
I sincerely hope that I am entirely wrong in receiving the overall message of the inaugural session that
contained two rather contradictory messages: the rule of law should remain global capital friendly as well as
human rights friendly. I simply do not know, nor cannot tell, how this may ever be accomplished. I will have to
exit this thematic now, given the time-constraints, but I hope that what now follows may perhaps illustrate the
oxymoronic nature of the principal theme of our discussion.

Ill
Let me at the very outset say that the term 'access to justice' is as mystical as the expression 'globalised
economy.'
Careful readers of the recendy disconcluded W T O Doha Round will surely share this perception. O n e of
the key categories there involved was NAMA'Non-Agricultural Market Access' arming at worldwide
elimination of tariff and non-tariff barriers on free trade. As we know, the US-based Zero Tariff Coalition
chaired bv an executive from D o w Chemical, demanded zero tariffs in a large number of crucial sectors including
even sporting goods, toys, wood machinen-, and w o o d products! As some critics explain this, N A M A 'is a
dream vehicle for corporations seeking a global rollback of taxes and regulations.' As we also know, the G90 (a
grouping of the W T O ' s 9 0 % poorest nations) expressed all kinds of fears concerning the risk that unbridled
global competition may pose to their infant industries and small firms. They articulated apprehensions that
zero tariff would escalate further the crisis of de-industrialization, unemployment and poverty and result in a
kind of 'search and destroy mission' for natural resources inherent in N A M A as promoted by global capital.
They proposed various measures calling for information labelling, export restrictions on natural resources, and
sustainable producers being 'dumped' on by cheap imports and in effect for articulation of 'popular sovereignty'
over the right to regulate market access.
T h e notion of 'globalised economy' then signifies new forms of predation by global capital. Globalisation
here refers to a new form of colonisation without colonisers; put another way, a new form of what I describe
elsewhere as 'conquest globalisation! Its earlier forms consisted in direcdy visible and massive appropriation of
territories, resources, and peoples; the current incarnation remains even more sinister because the similar planned
appropriation is rendered almost invisible.
T h e task of critique concerning so-called globalised economy consists in devising historically accurate
ways that estabHsh a c o m m o n identity' between the East India Company and its lethal lineal descendants, the
contemporary personifications of multinational capital, via the M N C s and their normative cohorts, the
International Financial Institutions . These now use the languages of access and claim that such access remains
essential to achievement of global justice! T h e tasks of human rights and new social movements also thereby
stand defined by the slogan: Justice consists in a resolute denial of such access.
The massive difficulties confronting this task stands posed by what Professor Leslie Sklair names insightfully
as the 'new universal globalising middle class,' a segment of which stands here assembled at this Conference.
We all seem, almost without exception, to believe that the new form of conquest globalisation is a good thing,

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after all. We all use computers, cell phones, the internet, the I-Pod, the DVDs, and related devices. We all
believe that that the digital and biotech revolution remain more emancipative than the 'socialist' revolutions of the
yesteryear. We all have stories to tell about how access to cyberspace facilitates the formation of new human
rights and social action/movement solidarities. And we believe that if contemporary technologies of globalisation
create new problems, these at the same moment remain endowed with the future prowess of techofixes that
will necessarily solve these. In this, we remain consciously or otherwise juristic/ juridical/'judicial technophiles, in
turn promoting forms of techno-politics as a crucial dimension of the so-called 'good governance.' Through all
these, and related moves, uncritically celebrating the 'globalized economy' in everyday action we remain complicit
with conquest globalization.
We all are constantly fed with the propaganda that the 'network society' aided by the digital revolutions
facilitates access to sources of information hitherto previously unimaginable and if there may exist any digital
divides, processes are already under way to bridge or at least abridge it. Like all propaganda, this represents a
kernel of truth3. But also by the same token this also overstates the claims of equal access to knowledge and
information in cyberspace. As the illuminating corpus of Professor Manuel Castells shows, the rise of the
network society may not always favour access tojustice; in fact, it may indeed promote forms of global violence
and injustice. And Professor Peter Drahos alerts us, indwells in the infinite promise of democratisation of
information also the peril o some new orders of 'informationalfeudalism'
Even when lacking the luxury of time on this occasion to elaborate in any detail the promise and the peril
of the new informational capitalism now firmly in place, please allow me to make one remark: the dominant in civil
society and the state in so many domains of the so-called 'globalised economy' simply, starkly, and with vast
orders of politics of cruelty, trump the human rights claims of the dominated; vast masses of human beings
remain condemned to a preoccupation merely with cheating their ways into daily survival. Put simply, they
remain simply, and unconscionably, priced out of the constantly otherwise expansive globalised 'access talk.'
Contemporary globalisation assumes many forms, where legal and judicial globalisation play a major role.
Legal globalisation consists of many 'things.' It signifies the modernization of the metropolitan legal profession,
lending it a competitive edge in the world markets for legal services. In the process, some Vice Chancellors of
the elite national law schools serve important roles in advising on matters of constitutional change, economic
policy and law reform even as they prepare their students for absorption into corporate practice. Legal
globalisation also refers to new law reform agenda shaping the course of the three 'Ds' of economic globalisation:
de-nationalization, disinvestment, and deregulation. Prominent on this agenda remain the shaping of new
regulatory institutions, processes, and cultures; increased emphasis on alternate dispute resolution; simplification
of investment and commercial law; and tendency towards accelerated growth of 'flexible labour markets.' Law
reform, especially the efficiency of the aclrninistration of justice, becomes more visibly the instrument of the
new economic policy. A process curiously named as 'far globalisation' generates some important legal changes
such as the employment guarantee scheme act, the more vigorous enforcement of child labour laws, regime of
protection of consumer rights, and of the right to information. Legal globalisation, overall, serves and promotes
the needs of the new globalising middle classes of India.

Thus, no doubt there exists vasdy improved access to information now concerning the Darfur situation in the Sudan,
the current situation in Iraq, or the most recent Israeli incursions into Lebanon than was available, or imaginable,
during the first war of Indian Independence in 1857, described by colonial historiography merely as a 'Mutiny' or the
myriad wars against an Age of Empire.

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I believe that we must raise a related question concerning the global social origins of all this newly
fangled access to justice talk. Who/which are the forces, managers, and agents of the globalised access to
justice talk? And how may we characterize their Original intent?' To put the matter rather summarily, it seems
to me crystal-clear that the manifold labours of the international and regional financial institutions, the
triadic communities of statesthe United States, the European Union and Japan and the now deeply
fractured WTO signify by 'access' simply the potential for penetration of third world markets of labour
and capital in modes that make these safer for the community of multinational corporations and direct
foreign investors. In this vision, postcolonial national constitutions and its laws, manifest themselves as
obstacles to access to the flows of global capitalism. Thus, these now remain heavily subject (as Professors
Stephen Gill and David Schneiderman painstakingly remind us) to the newly minted prowess of the newly
emergent yet fully robust 'new economic constitutionalism.'

IV
Allow me to bring home the tragedy of all our access talk in the context of judicial globalisation. In the
sparse but important literature on the subject, judicial globalisation suggests a new order of comity and
cooperation among the world's apex courts and justices. At the first sight, there is little objectionable with the
idea that apex justices of different jurisdictions ought to meet with each other and learn from each other's
achievements and dilemmas, or that they become a cooperative 'community' pursuing the tasks of national
and global justice. But often these simple-looking ideas carry some hidden agenda. Judicial comity is often
tinged with hegemony, and at times simple domination.
Thus, for example, Judge Keenan in the Chopal Case deferred to the competence of the Indian courts to
decide the complex situation of mass disaster caused by the Union Carbide Corporation; Keenan went so far
as to register a desire that he wished the Indian judiciary to stand tall in complex mass torts adjudication! The
sting in the tail was this: any damage award remained subject to 'due process' requirement and it was left
completely open to a New York equivalent of Indian Small Causes Court to decide finally whether the Indian
Supreme Court was capable of any correct understanding of this requirement! Judicial globalisation, in sum,
means subservience of the South apex courts by the hegemonic North judicial fora. I have in my Hague
Academy Lecture (2000) more fully illustrated this dimension of judicial globalisation.
Judicial globalisation further occurs in the name of 'good governance' which requires an intense reform
of justicing under the auspices of governmental and intergovernmental aid and development agencies. Again
in principle un-objectionable, such auspices often take over the agenda of law reform and reform of judicial
administration, and shape them in accordance with their economic and strategic needs. In particular stands
promoted the idea of judicial self-restraint in policy matters of trade liberalization, direct foreign investment,
the establishment of company towns, free trade economic zones, and flexible labour markets.
Although 'structural adjustment' is a notion that primarily extends to International Financial Institutions
induced conditionalities that swallow the hard-won independence of postcolonial nations4, and this notion is
not thus far coverty extended to apex adjudicatory power, prowess, and process. I here suggest that the World
Bank/IMF/UNDP, and related, programs of 'good governance' understandably, if notjustifiably, promote structural
adjustment of judicial activism. These covertly address, as well as overall seek to entrench, market-friendly,
trade-related forms of judicial interpretation and governance. Judicial self-restraint concerning macro-economic

Professor Stephen Gill insightfully names this as a process of 'disciplinary globalization.'

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policy as the basis of adjudicatory policy stands proselytized by the already hyper-globalised Indian appellate
Bar. Understandably, the processes of judicial appointment preclude any serious regard for the elevation of
noticeably outspoken judicial critics of Indian globalisation. N o longer may the judicial collegium already in
place dare nominate a potential Krishna Iyer, D.A. Desai, Chinnappa Reddy, or even a Bhagwati!
Before I proceed with six stories, please allow me to say that I remain an unabashed votary of judicial
activism, Indian-style, which it remained my privilege to foster and further via social action litigation. In word
(in my writings) and in deed (in my interventions/appearances before the Supreme Court of India), I have
celebrated the many avatars of Indian judicial activism variously. For example, I have described judicial activism
as transforming the Supreme Court of India as the Supreme Court for the impoverished masses of Indiancitizens; I have celebrated judicial activism as an essential chemotherapy for the cancerous Indian body politic
I have described in vivid detail, and applauded, the wavs in which activist Indian Justices have proceeded to
invent a new jurisdiction (which I name as the 'epistolary' jurisdiction), established new forms of appellate factfinding (notably via the device of socio-legal citizen commissions of enquiry), re-scripted fundamental rights
considered and rejected by constitution-makers for inclusion in Part III (such as 'due process,' right to speedy
trial and to bail) and enunciated new galaxies of human rights (such as the right to privacy and dignity, livelihood,
environmental integrity, information and participation.) The manv-splendoured distinctive achievements of
social action litigation have already, and continue to, fully assist the processes of re-democratisation of the
Indian constitutional polity'.
I need to reiterate all this out of any naive authorial vanity but as an act of resistance to the forms of legal
and judicial globalisation, which now foster the art of organized public amnesia, even concerning the new
styles and habits of the now-taken-for-granted ways of judicial governance of India. At the same moment, it
also needs to be said that celebration differs from panegyric orgies, rituals that serve n o worthwhile ends than
those pandering narcissisms of the moment.
I have been critical of some adjudicatory polices and outcomes. In this, I am not in any way singular.
Activist scholarship everywhere, but more poignantly in the Indian conjuncture, serves its cause well by abstaining
from performances of judicial sycophancy, in any case prohibited by Article 51-A of the Constitution that
urges all Indian citizens to develop 'scientific temper,' 'spirit' of critical enquiry and social reform', and above
all the virtue of 'excellence' in all 'walks of life.' In sum, this virtue casts a responsibility 7 on all Indian citizens
to expose mediocrity in adjudicative policy and performance. T h e Constitution then requires of both apex judicial
actors and their critics to shun mediocrity and pursue excellence; these remain in real life, I acknowledge,
difficult virtues to practice.

V
Allow me, in this milieu, to proceed with my six stories!
The first story relates to the constitutionality of some globalisation induced trade/aid/grant conditionalities.
T h e Supreme Court had indeed developed the doctrine of 'unconstitutional conditions' (notablv by the exertions
of Justice Mathew) and the later doctrines concerning unconstitutional disappointment of legitimate expectations
and of prohibition of unjust enrichment. All these doctrines, in sum, signified strict judicial scrutiny of macro

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Inaugural I'unction

and micro economic/development policies that adversely impacted on equality/equity or human rights and
fundamental freedoms of the most vulnerable classes of Indian citizens. These doctrines now He buried five
fathoms deep.
My first story concerns the activist challenge to India's accession to the W T O impugned on the ground
that it violated not just Part III provisions but also the basic structure of the Constitution, an eminently wellcrafted judicial doctrine [put in the Onida-TV advert as ' owner's pride and neighbour's envy'.] T h e Bombay
High Court 5 rather blithely dismissed the contention! O n one reading of its judgment, the Court, overall, asked
the petitioners to return to its powers as and when any such deleterious impact became more manifest! Unlike
the classic discourse concerning the certification of the interim constitution where the South African
Constitutional Court subjected it to the test of basic principles, the Court did not even seek to match the
blood-group of the W T O agreements, especially the TRIPS, with Parts III and IV of the Constitution. It is n o
consolation, though in a different context, for us to know that the Philippines Supreme Court likewise abstained/
abdicated its role. May I suggest that we read this decisional stance as the first step towards the structural
adjustment of judicial review power, process, and activism? To steal a famous phrase from Ronald Dworkin,
the eminent Court acts here as a 'deputy1 to the legislators, let alone as "deputy legislator.'
A second momentous development towards the structural adjustment of judicial role, and activism, occurs
through the entirely unconscionable and unconstitutional judicial orders decreeing the infamous Bhopal
settlement 6 . Should you find these words too harsh, I invite your attention to the text of these orders. T h e
Court there n o t merely reduces the compensable amount from the Indian government computed US $3 billion
to $470 million but also grants the Union Carbide full immunity from criminal proceedings and surrogates the
Indian government as a fully-fledged fiduciary clone of that multinational, and all its world-wide affine, in
regard to all civil action in India and at world at large! O u r efforts at review petition saved the Court, at least
partially, of the ignominy of a 'done deal' providing criminal immunity to Union Carbide.
I have written rather extensively concerning this astonishingly anguishing adjudicatory performance but
also been responsible for review petitions that ultimately, but effetely, quash some of these immunities/
impunities. Twenty-one years since, and I cannot speak of this without a lump in my heart, the catastrophic
victims remain staggeringly re-victimised. For the present occasion, this narrative suggests a judicially induced/
managed transition room; the paradigm of the universal human rights of all suffering peoples to that of traderelated, market-friendly human rights paradigm 7 .
See P.B. Sawantv. UOI AIR 1994 Bom 323. An egregious error in an early-unroofed draft of this paper presented
this holding as emanating from the Honourable Supreme Court of India. In a lifetime of study of Indian constitutional
review processes, this is my first error yet entirely inexcusable. I must sincerely extend my apologies to all concerned
especially to their Lordships of the Indian Supreme Court. It is another matter altogether that the very constitutional
grounds that so fully weighed with the Bombay may have been equally persuasive with the Supreme Court of India.
But any such speculative enterprise must also reckon with the fact that the Court was the more appropriate forum
for a fuller consideration of the basic structure argument pressed in the service of contesting India's accession
Incidentally, at least for the Bhopalviolated Indian humanity, it now remains somewhat poignant that Chief Justice
Pathak, who wrote the Bhopal settlement order, in his recent Volcker investigation report finds it politically and
constitutionally incorrect that an ex foreign minister of India may have 'misused' his office! In observing this, I
impute of course no ulterior motives to Pathak. This would be simply unworthy. Even so, the suffering Bhopal
victims may still seek from Pathak a more grounded understanding of his notion of 'misuse' of a constitutional
office.
See, Upendra Baxi, The Future of Human Rights (2nd ed.) Delhi, Oxford University Press 234-275(2006).

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A third story concerning structural adjustment of judicial activism stands presented in the determined
reversal of the proud labour jurisprudence of the Supreme Court itself. T h e juristic and juridical labours of
Krishna Iyer, D.A. Desai, Chinnappa Reddy M. P. Thakkar, and in earlier times of Subba Rao and Gajendragadkar,
even a Hidyatullah, are now reversed bv manv a hurried stoke of insensitive judicial pen! A 2006 decision of
the Supreme Court 8 even goes so far as to 'denude'1 all prior contrary decisions of their authoritative status! This
sweeping dismissal of prior binding precedents signifies an entirely unaccountable and rather unprecedented
judicial technique in the annals of the Indian as well as the Commonwealth judiciary! T h e learned Justice w h o
writes the principal opinion even goes so far as to suggest that his predecessors laboured under a misimpression
that ours wTas a socialist constitution!
This eminent judge compelled a momentous jurisprudential anxiety for me in mv Warwick location. I
scourged the histories of recent amendments to ascertain whether some recent constitutional amendments had
after all deleted this 42 nd Amendment insertion to the Preamble to the Constitution! Allow me to bring to you
the good news that this preambulatorv recital has survived the ravages of contemporary Indian globalisation!
The bad new?, is that this now for the Supreme Court of India makes not a tattle of difference1.
I am not saving at all the later Justices mav not feel free to dissent from their predecessors. N o r am saying
that the predecessors mav claim anv prophetic wisdom over the future of constitutional development. However,
do wish to suggest with the fullest constitutional sincerity that in doing so they remain fully accountable at the
bar of public reason. A n d in this respect thev altogether seem now to coilecaveiv fail.
A fourth narrative of structural adjustment of iudicial power stands furnished bv the Sunreme Court's
momentously meandering jurisprudence concerning the Narmada Dam construction. At one decisionai moment,
we are told that the height of the dam mav not be raised without the most solicitous regard for the human
rights, and human futures, of the ousted project affected citizen-peoples. At another decisionai m o m e n t stands
enacted the unconstitutional fian passu principle, under whose auspices submergence mav actually occur with
some indeterminate regard for relief, rehabilitation, and resettlement. At a third moment, the affected citizenpeoples stand somehow assured that the Court is not powTerless to render justice to them even as submergence
occurs. Who knows what a fourth m o m e n t may after all turn out to ber 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!
A fifth story of the structurally adjusted judicial role and 'responsibility' stands now furnished by the
judicially m a n d a t e d / m e d i a t e d / sanctioned 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 hummi rights to dignity and livelihood, which the Court itself since the Eighties so painstaking
evolved. Some court . aers go so far as to mandate, under the pain of contumacious conduct, any human
rights-oriented intervention against the enforced demolitions. The impoverished urban evacuees stand denied
all rights of constitutional due process, including access to their erstwhile meagre belongings. T h e bulldozers
remove the last sight of their existence as documented citizens; all evidence of title and occupation (including
the only 'passport' they posses bv way of pattas, their inchoate 'title' deeds, and prominently their ration cards)
stand maliciously and wantonly destroyed.
N o t 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] Surely,

Secretary, State of Karnataka v. I'ma Devi (2006) 4 SCC 1.

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structural adjustment of judicial activism, or judicial globalisation Indian-style, thus with a single-minded
consistency, now produces with some irreversible human rights destructive globalising intendment some new
judicial productions of the estates of Indian human rightlessness.
A sixth story concerns the harsh way in which the Indian Supreme Court dealt with the 'contempt'
committed by Zahira Sheikh. She signifies a multiple-produced series of texts of victimage constituted severally:
first, as an eye-witness to the destruction by arson of her own kin and affine by the Hindutva mobs; second, as
news/views 'commodity' in hyperglobalizing Indian mass media; third, as a resource appropriated by local
politicians and by some activists alike and fourth as a commodity in the heavily mass media inflected markets
of human rights and social movement activism. Overall here, a deeply traumatized victim of organized political
catastrophe, or holocaust, stands compelled by the force of circumstance to make contradictory statements
that finally decree her fate as a contumacious Indian citizen worthy only of the most severe punishment in the
annals of contempt jurisprudence.
The same Court, however, remained largely lenient in its regard for Chief Minister Kalyan Singh for an
objectively presented far worse egregious contumacious conduct leading to the demolition of the Babri Masjid
and the communal carnage that followed. It also remained lenient for Arundhati Roy, a historically belated
NBA activist figuration, marshalling the full range of powers of International Union of Journalists, and Shiv
Shankar, a former Union Law Minister, for a while marshalling the power of judicial elevation. Their egregious
contumacious conduct was thought eligible for the otherwise rather relaxed standards of contempt punishment.
Yet, the Supreme Court leaned heavily on Zahira. H o w 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. Yet in discharging my citizen responsibility acting under Part IV-A fundamental duties of
Indian citizens requires me to highlight the different strokes of the judicial exercise of contempt power, which
also mark some enormous differentials of access to free speech under the Indian Constitution.
H o w indeed may one fully grasp the forms of politico- judicial toleration of contumacious performances
that in fact enact different standards for highly placed political figures as compared with ordinary and hapless
citizens? Is it also the case as well that some new walls of difference thus erected between globalised and deglobalised Indian citizens? H o w may we at all grasp the enactment of different tolerance thresholds for publicspirited criticism of adjudicator} styles and performances that now so fully enact some contradictory, dual,
even multiple, standards of differential access to justice, as an aspect of freedom of speech and expression,
even amidst the most traumatically devastating moments?

VI
There is simply no way to 'conclude' this agonized presentation, save by saying that the access talk
remains a part of the problem, not a part of any solution. To reiterate, any approach to solution must at least
respond to the following u p e s of questions: H o w may we de-globalise judicial access, that is, ensure that the
overseas and national capital does not ride roughshod over the livelihood and dignity rights of the working
classes? H o w may we ensure that in the making of new Indian global cities, and the enclaves/ fortresses of
special economic zones, the same range of lived human rights to the migrant and urban impoverished citizens?
How may we pour democratic and constitutional content to the borrowed and imposed languages of 'good
governance?' H o w long mav the masses of impoverished Indian citizens be treated as mere objects of

II.I (i'.liicn julnltf '3-2>".

Inaugural Function

development policies that reproduce the lives of Indian citizens as receptacles of obscene political waste?
H o w far ought the new economic policy remain effectively a h u m a n rights-neutral domain of national
governance by elected officials as well the unelected ones (most notably the Justices)? H o w may we all
endeavour together for the restoration of the glory of the Supreme Court of India which finally converted
itself, in the halcyon days of democratisation of access, as the Supreme Court for all hapless Indian citizens?
Perhaps, I may sound to you as calling for a Jurassic- park type revival of Indian judicial activism of the
seventies and eighties. You may well want to regard m e as a jurisprudential Dinosaur. So be it. For weal or woe,
I am unable to make any coherent sense of our access talk otherwise.
Perhaps not; I invite summarily the gesture of Jean Francois Lyotard in his Peregrination: Law, Form, and
Eventwhcn he speaks to us thus: " H o w may we understand then the descent into the substrata of necessity, to
seek out there the most the meaning of the most irrational of historic effects [that resists the [construction of)
the incomprehensible and complete tableau of reality... [that listens]... to the obscure passions, the arrogance
of leaders, the sadness of workers, the humiliation of peasants, and of the colonizedthe anger and the
bewilderment of revolt; the bewilderment, too, of thought [that invites] again the thread of class in the imbroglio
of events."
Justice Goswami once spoke of the Indian Supreme Court as the 'last refuge for the bewildered and the
oppressed.' Perhaps, a globalising Indian Supreme Court needs to recover this increasingly lost adjudicatory
estate?