I read Prof Baxi’s piece ‘Emerging Laws & Jurisprudence’ dwelling into ‘the exercise of the suo motu jurisdiction by courts’ in India’s fight against Covid-19. As always, his writing is a mixed bag. He places legal researchers ‘among the frontline of combatants against a sinister global pandemic’. Surely that would stand true in an imagined world that is law-centric. It neglects the idea that there are administrative and policy decisions taken which may not necessarily emerge, be directed or tied to laws but are mere matters of administrative efficiency and optimisation. They may be confined by law in their superstructure but surely that doesn’t place legal researchers at the frontline. Contention is not the place of legal researchers but the tendency towards self-ascribed importance and drag every contestation in the society as matters of jurisprudence.
But, his examination and questioning of courts’ activist stance (suo motu jurisdiction) in intervening in situations that emerged during India’s Covid-19 response is well placed. There is much learning in that careful deliberation. However, when he asks, ‘Are these expressive of the “cavalier attitude towards the intersection of pandemics and mass incarceration”? – he is thinking exclusively legally. I’d have liked him to examine this from the intersection of sociological, political, administrative and legal perspective. This is because a lot of Indian state’s actions have happened in the fuzzy, interstitial space where law is just one of the components, not the matter itself.
Let me end with the example he uses, of Article 21. During the lockdown has there been a ‘judicial suspension of Article 21 rights’ is surely a question of relevance to jurisprudence but may not be the right one to ask with respect to the situation – Covid 19 emergency. Here’s what would help this insular deliberation – if one were to run a simulation of Article 19 rights in a society being upheld no matter what during the pandemic vs limiting Article 21 rights in in the interest of designing the best possible response given governance, technological, capacity, capability and many such challenges that the Indian state suffers, what would the consequences look like? Can legal thinkers push themselves harder?