Professor Upendra Baxi, the former Vice Chancellor of the University of Delhi is considered one of India's pre-eminent legal scholars. Noted for his activism in the field of human rights, his pioneering endorsement of social science methods in law teaching, and his scholarship in comparative constitutional law, the Government of India, on January 25, 2011, conferred the Padma Shri award on him.
Serendipitously, shortly after the announcement was made, a team from Rainmaker was at his residence in East Delhi. On the eve of Republic Day, we asked him to reflect on constitutionalism in the context of the Indian government's approach to the war on terror and the Maoist insurgency.
Edited extracts from the transcript of the conversation:
Professor Baxi said that his understanding of the idea of the Constitution, and of what we call 'constitutionalism', has four components - governance, development, rights, and justice. "These are conflicting conceptions - there can be governance and development without rights and justice. In a sense, even the Government of India's recent stance suggests that the constitutional have-nots, or the worst of Indian peoples have been dealt a raw deal, and therefore, more development is the answer. This becomes complicated because of the so-called war on terror. There are two kinds of wars going on - the war of terror, and the war on terror, both of which involve standard-less use of force against persons and citizens caught in the middle of this cruel warfare. I think the Constitution prescribes a no-zone for attacks against Indian civilian citizens; both these types of warfare violate the spirit and the letter of the Constitution, and this is extremely unfortunate."
Professor Baxi said that dragnet legislation, from the M.I.S.A. to the P.O.T.A., regardless of whatever they are called, do not help either good governance, or the future of human rights in India. He said that one could understand the security concerns of the state - but that these dragnet security legislation elevate the collective human right of security above all other human rights. "On the other hand," he continued, "A standard-less use of force cannot, and legalised use of standard-less force cannot bring either development, or peace, or justice. This is not a new problem. The Indian Constitution was written in the blood of the Partition holocaust. Therefore it provides for the Article 21 rights to life and liberty, but also provides for preventive detention in Article 22."
"From 1950 onwards, not just in Kashmir, but in the North East, the Indian state has ruled by exception. The Armed Forces Special Powers Act was institutionalised. I think we need to understand the Indian constitutional development in two dialectical ways - the Constitution of peacetime, and the Constitution at war. After sixty-two years, in my view, it is time to fully reinforce the Constitution of peace and go away from that of war. How this is to be done invites more than twenty-four-seven media hype and the hysterics of human rights activism. A more grounded analysis and approach to future solutions is needed."
