Curtain-raiser: A conversation between Justice Gautam Patel and Prof. Upendra Baxi

ON December 4, 2024, The Leaflet will host a conversation between Justice Gautam Patel and Professor Upendra Baxi.

The conversation will focus on several current issues, ranging from life and liberty, marriage equality, marital rape, the basic structure of the Indian Constitution, and the Sabarimala case.

The wide-ranging discussion between a highly regarded retired constitutional court judge and perhaps India’s most pre-eminent legal academic alive will take a deep dive into the functioning of the Supreme Court of India.

In particular, it will focus on the role of academics in the legal system.

In his poem “The Theologian's Tale”, Henry Wadsworth Longfellow captured the nature of the relationship between two people while one of them awaits the other's answer to a marriage proposal.

He described them, their situation and perhaps the human condition generally, in nautical terms (Master of the Rolls speech: Hamburg lecture— 9 July 9, 2012).

For him they were,

“Ships that pass in the night, and speak each other in passing,

Only a signal shown and a distant voice in the darkness;

So on the ocean of life, we pass and speak one another,

Only a look and a voice, then darkness again and a silence.”

For a long time, this happened to be the case in India, the two ships— academia and the legal system— oft passed each other in the dark and spoke only with a look and a voice. Lord Roger of Earlsbury, a judge of the UK Supreme Court, writing in the University of Queensland Law Journal notes that this is not usually the case.

Often, constitutional courts grapple with challenging legal questions that judges may not be best equipped to answer: their training is in deciding issues, not in theorising and conceptualising.

The interaction of these two skill sets has the potential of raising the bar of legal reasoning by several notches. Prof. Basheer’s iconic intervention in Novartis is a case in point, as is Prof. Amita Dhandha in Rajive Raturi versus Union of India.

The Constitution of India allows the appointment of distinguished jurists as judges of constitutional courts but we are yet to make any such appointments. Involving jurists to assist courts in tackling complex legal issues can bring in a refreshing perspective.

A core occupation of a law professor is to teach and push the frontiers of knowledge through research and scholarly engagements. But they have much more to offer provided the system gives them the right opportunities. Do India’s judiciary and the executive employ the expertise of law professors?

The examples of their doing so are sporadic. Prof. Upendra Baxi, our guest of honour, has voluntarily intervened in matters of importance, compelling courts to take them up, including the famous Mathura rape case.