The entire future of Indian judicial process and power is being put at stake in the faith v const... more The entire future of Indian judicial process and power is being put at stake in the faith v constitution controversy. How to transmute a partisan controversy into a reasoned public debate is the primary task of constitutional politics. Allegations of 'judicial overreach' greet any adjudicative "reasonable accommodation" especially when it engages the constitutional right to education under Article 21-A. Karnataka High Court [KHC] recently advances the doctrine of "qualified public space" in the Hijab case not usually noticed in the critical discourse engaging essential practice of religion or of the rights to dignity, culture, or privacy. Even when it remains a contentious doctrine, it is worthy of emphasis that the KHC allows wearing hijab in school campus or other public spaces, while disallowing the hijab in classrooms. This judicial feat, however, is marred by disallowing even "hijab of structure & colour that suit to the prescribed dress code." The KHC is determined to prevent "nonuniformity in the matter of uniforms", and an undesirable "sense of 'social separateness'. Why so, especially when empirical studies demonstrating this 'separateness' are scarce? Intuitively, it invokes the fundamental duty of all citizens to ensure that "common brotherhood" is not affected by Hijab, but why are other religious symbols allowed (wearing Kumkum, turban, beard, tilak, or cross)-whether as religious essentials or cultural preferences? Idenity. both religious
This article examines a foundational moment in the history of the women's movement in India and i... more This article examines a foundational moment in the history of the women's movement in India and its engagement with the law: the open letter to the Supreme Court written in 1979 by four scholars of the law-Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar. As part of an effort to commemorate Lotika Sarkar's work and legacy, this article looks at the letter as an event embedded in a certain history of feminist mobilisation and legal reform, of which Lotika Sarkar remains an integral part. It attempts to understand and narrativise the contiguous political climate within which the letter was written, the legal critiques that it espoused, the kind of politics and affiliations it led to, the governmental responses it evoked and the new categories and concepts it introduced to the jurisprudence of sexual offences in India.
TThis book critically examines the contemporary discourses on the nature of 'human rights', their... more TThis book critically examines the contemporary discourses on the nature of 'human rights', their histories, the myths that are embedded in them, and contributes an alternative reading of those histories by placing the concerns and interests of the 'people in struggle and communities of resistance' at centre stage. The work analyses the significance of the UN and the Universal Declaration of Human Rights and goes on to study the more contemporary issues such as women's struggle to feminize the understanding and practice of human rights, the post-modernist critique of the universal idiom of human rights and, most pertinently for the current world scene, it analyzes the impact of globalization on the human rights movement. The volume includes a discussion on the proposed United Nations norms regarding the human rights responsibilities of multinational corporations and other business entities. This edition further addresses the diversity in labouring practices that relate to making, remaking, and unmaking of internationally agreed upon human rights norms and standards.
This important new work reflects on the contemporary human condition in a 'posthuman' and 'machin... more This important new work reflects on the contemporary human condition in a 'posthuman' and 'machinistic' world, almost overwhelmed by security concerns, terror and its politics, and technoscience. Exploring the role of human rights and development in such a world, Baxi contends that any serious analysis of human rights theory and practice must confront two critical realities. Firstly, that the new world economic and military orders, along with the continuing wars of and on 'terror', adversely impact global social and human development policies and programmes. Secondly, that emergent technologies, especially artificial intelligence, biotechnologies, and nano-technologies, generating the discourse of the posthuman, have serious implications for human rights. The book presents a critique of the approaches towards a theory of human rights proposed by Amartya Sen and his emphasis on the ethical, as opposed to the juridical nature of such rights. It proceeds to examine the complexities and contradictions of the ideology of development, and asks why there has been so little progress with regard to the right to development. It explores how in the current world scenario the 'emancipatory potential' of human rights may be carried forward in theoretical work and through activism.
The entire future of Indian judicial process and power is being put at stake in the faith v const... more The entire future of Indian judicial process and power is being put at stake in the faith v constitution controversy. How to transmute a partisan controversy into a reasoned public debate is the primary task of constitutional politics. Allegations of 'judicial overreach' greet any adjudicative "reasonable accommodation" especially when it engages the constitutional right to education under Article 21-A. Karnataka High Court [KHC] recently advances the doctrine of "qualified public space" in the Hijab case not usually noticed in the critical discourse engaging essential practice of religion or of the rights to dignity, culture, or privacy. Even when it remains a contentious doctrine, it is worthy of emphasis that the KHC allows wearing hijab in school campus or other public spaces, while disallowing the hijab in classrooms. This judicial feat, however, is marred by disallowing even "hijab of structure & colour that suit to the prescribed dress code." The KHC is determined to prevent "nonuniformity in the matter of uniforms", and an undesirable "sense of 'social separateness'. Why so, especially when empirical studies demonstrating this 'separateness' are scarce? Intuitively, it invokes the fundamental duty of all citizens to ensure that "common brotherhood" is not affected by Hijab, but why are other religious symbols allowed (wearing Kumkum, turban, beard, tilak, or cross)-whether as religious essentials or cultural preferences? Idenity. both religious
This article examines a foundational moment in the history of the women's movement in India and i... more This article examines a foundational moment in the history of the women's movement in India and its engagement with the law: the open letter to the Supreme Court written in 1979 by four scholars of the law-Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar. As part of an effort to commemorate Lotika Sarkar's work and legacy, this article looks at the letter as an event embedded in a certain history of feminist mobilisation and legal reform, of which Lotika Sarkar remains an integral part. It attempts to understand and narrativise the contiguous political climate within which the letter was written, the legal critiques that it espoused, the kind of politics and affiliations it led to, the governmental responses it evoked and the new categories and concepts it introduced to the jurisprudence of sexual offences in India.
TThis book critically examines the contemporary discourses on the nature of 'human rights', their... more TThis book critically examines the contemporary discourses on the nature of 'human rights', their histories, the myths that are embedded in them, and contributes an alternative reading of those histories by placing the concerns and interests of the 'people in struggle and communities of resistance' at centre stage. The work analyses the significance of the UN and the Universal Declaration of Human Rights and goes on to study the more contemporary issues such as women's struggle to feminize the understanding and practice of human rights, the post-modernist critique of the universal idiom of human rights and, most pertinently for the current world scene, it analyzes the impact of globalization on the human rights movement. The volume includes a discussion on the proposed United Nations norms regarding the human rights responsibilities of multinational corporations and other business entities. This edition further addresses the diversity in labouring practices that relate to making, remaking, and unmaking of internationally agreed upon human rights norms and standards.
This important new work reflects on the contemporary human condition in a 'posthuman' and 'machin... more This important new work reflects on the contemporary human condition in a 'posthuman' and 'machinistic' world, almost overwhelmed by security concerns, terror and its politics, and technoscience. Exploring the role of human rights and development in such a world, Baxi contends that any serious analysis of human rights theory and practice must confront two critical realities. Firstly, that the new world economic and military orders, along with the continuing wars of and on 'terror', adversely impact global social and human development policies and programmes. Secondly, that emergent technologies, especially artificial intelligence, biotechnologies, and nano-technologies, generating the discourse of the posthuman, have serious implications for human rights. The book presents a critique of the approaches towards a theory of human rights proposed by Amartya Sen and his emphasis on the ethical, as opposed to the juridical nature of such rights. It proceeds to examine the complexities and contradictions of the ideology of development, and asks why there has been so little progress with regard to the right to development. It explores how in the current world scenario the 'emancipatory potential' of human rights may be carried forward in theoretical work and through activism.
The coronavirus epidemic has now enveloped the globe and generated new forms of governmentality a... more The coronavirus epidemic has now enveloped the globe and generated new forms of governmentality and bio-legitimation practices in its wake. But only new forms of human compassion and solidarity can help overcome this lethal and formidably grim challenge.
Baxi, Upendra. 2012. Changing Paradigms of Human Rights, Epilogue in Eckert et al LAW AGAINST THE... more Baxi, Upendra. 2012. Changing Paradigms of Human Rights, Epilogue in Eckert et al LAW AGAINST THE STATE: Ethnographic Forays into Law's Transformations, CUP.
2010. Revisiting Social Dimensions of Law and Justice in a
Post-human Era in Helen Irving et al e... more 2010. Revisiting Social Dimensions of Law and Justice in a Post-human Era in Helen Irving et al eds. Julius Stone: A Study in Influence. NSW: The Federation Press.
2009. The Human Right to Water: Policies and Rights in Ramaswamy R. Iyer ed. Water and the Laws i... more 2009. The Human Right to Water: Policies and Rights in Ramaswamy R. Iyer ed. Water and the Laws in India. Delhi: Sage.
2004. The "just war" for profit and power: The Bhopal catastrophe and the principle of double eff... more 2004. The "just war" for profit and power: The Bhopal catastrophe and the principle of double effect. In Lene Bomann-Larsen and Oddny Wiggen eds. Responsibility in world business: Managing harmful side-effects of corporate activity. pp 175-201. New York: United Nations University Press.
1996. Judicial Discourse: The Dialectics of the Face and
the Mask in R.K. Hebsur ed. Social Inter... more 1996. Judicial Discourse: The Dialectics of the Face and the Mask in R.K. Hebsur ed. Social Intervention for Justice. Mumbai: TISS.
Upendra Baxi and Bill Holder
Australasian Universities Law Schools Association
Annual Conference,... more Upendra Baxi and Bill Holder Australasian Universities Law Schools Association Annual Conference, University of Adelaide, 1971
ASLP/IVR/35a
UNIVERSITY OF SYDNEY
FACULTY OF LAW
Department of Jurisprudence and International La... more ASLP/IVR/35a UNIVERSITY OF SYDNEY FACULTY OF LAW Department of Jurisprudence and International Law (Institute for Advanced Studies in Jurisprudence) MATERIALS FOR POSTGRADUATE STUDIES, 1967
ASLP/IVR 54
U N I V E R S I T Y O F S Y D N E Y
Faculty of Law
Department of Jurisprudence an... more ASLP/IVR 54 U N I V E R S I T Y O F S Y D N E Y Faculty of Law Department of Jurisprudence and International Law (Institute for Advanced Studies in Jurisprudence) MATERIALS FOR POSTGRADUATE STUDIES, 1972 RENÉ MARCIC: SYDNEY COMMEMORATIVE SYMPOSIUM
Apologies are owed for delaying this conversation, which are due to a cerebral stroke I suffered ... more Apologies are owed for delaying this conversation, which are due to a cerebral stroke I suffered last March and from which I am slowly and painfully recovering. This would also excuse, I hope, the occasional alcoholic slur in my speech which is not out my penchant for gibberish that marks my talks but rather owes itself to the near destruction of the motor functions of the left side of the brain. I thank you all in advance for your indulgent reception and I thank in particular Vice Chancellor Shyam Menon for his initial invitation and his patience for nearly a year for this occasion. His colleague Dr. Rukmini Sen and her colleagues also helped with every detail of this event. 9 Regarding thus, see the valuable discussion in Brian Barry,
co-authored with Lotika Sarkar and Raghunath Kelkar, 1 May 1980, published in the aftermath of th... more co-authored with Lotika Sarkar and Raghunath Kelkar, 1 May 1980, published in the aftermath of the Mathura Open Law
Tukaram V State of Maharashtra (1979)-Facts of the case in brief-Case of rape in police station-A... more Tukaram V State of Maharashtra (1979)-Facts of the case in brief-Case of rape in police station-Acquittal of accused persons by trial court-Reversal of acquittal by the High Court-Reversal of High Court's verdict stated-Decision severely criticised with detailed reasonings-Second and Third components of S. 375 IPC discussed-Nandini Satpathy's case (1978) relied on-Plight of poor girls and women of India-Submission made -Appeal to the CJI to have the case re-heard by a Larger Bench or by a full court. Your Lordship, We, as Indian citizens and teachers of law, take the liberty of writing this open letter to focus judicial attention and public debate over a decision rendered by the Supreme Court on September 15, 1978 which has been recently reported. The decision was rendered by Justice Jaswant Singh, Kailasam and Koshal in Tukaram v. State of Maharashtra, (1979) 2 SCC 143.
The global governance style and prose of the United Nations system often mystifies the fact that ... more The global governance style and prose of the United Nations system often mystifies the fact that what is enunciated as consensus of the peoples often the world is really what the community of states agrees to as a ''soft'' law that creates no state obligations excepting as the work of future time. Of course, a historian of international law fully recognizes the power of the exceptional when ''soft'' law becomes hardened (like the declaration in the right to development) and hard law is softened (as in times of ''development'' and the global war on ''terror''). Oxymoron upon oxymoron continue stockpile the UN global governance prose.
This chapter explores the idea of impoverishment and the concept of poverty as a global condition... more This chapter explores the idea of impoverishment and the concept of poverty as a global condition. It makes a distinction between “poverty” and “impoverishment”—the latter being the conditions and policies that keep people mired in poverty. It also makes a distinction between absolute poverty—conditions that threaten survival—and relative poverty. Absolute poverty is often regarded as a human right, and this chapter details efforts by international entities such as agencies of the United Nations to include the abolition of global poverty within the idea of universal human rights. The chapter also discusses the nature of impoverishment in the Anthropocene era, in which global warming will threaten everyone within vast regions of the Earth. The notions of global responsibility and universal human rights will have to be expanded to include these problematic new circumstances.
Underlying questions of transgression are questions of norms, if only because what may call trans... more Underlying questions of transgression are questions of norms, if only because what may call transgression is a willed departure from the established norms. When transgression is linked not with the rationality of self-interest but with claims of justice (what good life and society ought to be), its legitimation rests on 'rhetorical spaces' 1 or 'interpretive domains' 2 available to social actors and epistemic agents. 3
The deadly Covid-19 virus has now enveloped the globe and generated new forms of governmentality ... more The deadly Covid-19 virus has now enveloped the globe and generated new forms of governmentality and bio-legitimation practises in its wake. But only new forms of human compassion and solidarity can help us overcome this lethal and formidably grim challenge. Even amidst the disease and death caused by the pandemic, theoretical discourse rages: on the one hand, our focus rests on the intensification of state of exception in combatting Covid-19. On the other, we explore the projection of the crisis as an opportunity for building a new future for global politics, one that is marked by empathy, fraternity, justice, and rights as fidelity to establish novel forms of sources of self in society. Here, we engage only one facet of the new developments: How can international law discourse be read as we step into the future? Respect for norms and standards of international law is among the paramount constitutional duties of the Indian State under Article 51 of the Constitution, regardless of the quibbles of whether the language only refers to treaty-obligations or also to customary international law. It is an egregious error to think that international norms, standards, and doctrines are irrelevant to making policy and law regarding disasters or pandemics. A threshold distinction of the United Nations, as a site of normative discursivity and of exercising global power politics, is sadly manifest even during this ever-accelerating pandemic. President Donald Trump's insistence on calling Covid-19 the ›Chinese virus‹ renders it extremely unlikely that the pandemic will be discussed during China's current monthly presidency of the Council. And the threat of veto, both by China and Russia, will always loom large whenever the matter is raised for discussion. But the UN also illustrates systems of norm enunciation. Responsible for the progressive codification of law (along with the International Law Commission, ILC), the UN system has developed a web of lawmaking and framework treaties as well as provided auspices for systems of ›soft‹ law that may eventually become binding. Some robust norms, standards, and doctrines have emerged. For example, the peremptory jus cogens-a few fundamental, overriding principles of international law, such as crimes against humanity, genocide, and human trafficking-apply to all states. And Article 53 of the Vienna Convention on the Law of Treaties goes so far as to declare that a »treaty is void if, at the time of its con
rights contained in the Constitu tion that confer both the positive rights on citizens like equal... more rights contained in the Constitu tion that confer both the positive rights on citizens like equality, and freedoms ranging from the freedom to assemble to the freedom of conscience, and the negative rights that protect a citizen from being a witness against himself (torture), arbitrary arrest, or deviation from the procedure established by law. The other perspective is the holistic approach that also takes into consideration a wide
Approaches to justice are an infrequent phenomenon in the analysis of global change policies purs... more Approaches to justice are an infrequent phenomenon in the analysis of global change policies pursued by states and international organizations but are writ large in global civil society protests and advocacy. I hope to initiate, through this paper, a different conversation concerning theories of climate justice (TCJ) in the offing and ask questions about how different TCJs may be from theories about global justice (TGJ) and environmental justice (TEJ). These approaches are all related of coursebut the questions that interest me pertain to the distinctions and differences between them. Although TEJs remain tethered to domestic and regional social orderings, they generally come closer to TCJs than TGJs do. I argue here that another important difference between TEJs and TCJs concerns the notion of 'generations' in TCJs. This goes beyond the three generations (past, present and future) in most accounts of TGJ to encompass infinite generations. In addition, I examine the notion that there is a human right to do harm and the ways in which TCJ may address harm prevention as the cornerstone of a new planetary approach to justice.
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Books by Upendra Baxi
Post-human Era in Helen Irving et al eds. Julius Stone: A Study in Influence. NSW: The Federation Press.
the Mask in R.K. Hebsur ed. Social Intervention for Justice. Mumbai: TISS.
Australasian Universities Law Schools Association
Annual Conference, University of Adelaide, 1971
UNIVERSITY OF SYDNEY
FACULTY OF LAW
Department of Jurisprudence and International Law
(Institute for Advanced Studies in Jurisprudence)
MATERIALS FOR POSTGRADUATE STUDIES, 1967
U N I V E R S I T Y O F S Y D N E Y
Faculty of Law
Department of Jurisprudence and International Law
(Institute for Advanced Studies in Jurisprudence)
MATERIALS FOR POSTGRADUATE STUDIES, 1972
RENÉ MARCIC: SYDNEY COMMEMORATIVE SYMPOSIUM