Introduction

Judicial process has been routinely defined as the study of what judges do and what they ought to do. Several presumptions are built into this trite definition. It presumes that there is a standard template on the tasks that judges perform, which can be usefully employed as a checklist to determine what judges do. Similarly, it assumes that there is an evaluative touchstone that can be universally employed to determine what judges ought to do. The standard judicial process theories emanating from the Global North are primarily ensconced in the separation of powers doctrine, whereby judges are only required to fathom legislative intention and steer statutory interpretation and implementation accordingly. Any trenching into legislative spaces is not kosher. Later theories have not accorded with this essentialist formulation and judges have been asked to complement what the legislature has done and at times even reconstruct legislative scripts in order to give a look-in to the more excluded social groups. Despite several efforts to displace it, the essentialist model which frowns upon judicial choice and law-making continues to occupy dominant position in North legal writing and the process of colonial osmosis ensures that it exerts influence on Global South legal scholarship. It is here that Baxi strikes out. In his view, the legal theory that jurisprudents of the North have devised for their judges in politically stable societies, with universal representation rights, cannot be grafted onto South polities, which are still working out their social, political, and economic hierarchies. The role that judges need to play in such societies of flux cannot be borrowed from stable and settled polities. Since he finds the theories constructed in the North to be irrelevant for India, his oeuvre on judicial process is a lifetime exercise of constituting such theory.

Without aiming to be exhaustive, I would include in this opus the following kinds of writing: