There are many associations of lawyers in this country and they hold several conferences throughout the year. Their subjects are confined to their professional and legal problems. This Association has a different orientation, ever since its inception. Members of this association assemble to discuss the problems of the people and to find solutions to them. The very subject of the present conference is an ample proof of it.

I must both congratulate and thank you for holding this conference at a time, which according to me is a watershed in the history of this country. We are today required to cry out to save our constitution and our country from the present government itself. Never before, after the Independence, such a need had arisen, and the people were required to face a situation where not the rule of law, but the rule of lawlessness prevails in this land.

We have today in power at the Centre, a government which is not only hostile to our Constitution, but given an opportunity, wants to change it root and branch to the detriment of the nation. Our Constitution is a social, political, economic and cultural manifesto of the entire nation. Representatives of all the then political parties and all social groups accepted it unanimously, with varied social interests. It is not merely a fundamental, legal framework of the country. It is the solemn declaration and resolution of “We the People” of India, to create in this country a new society which is not only quite distinct from the one we have inherited but diametrically opposed to it. Instead of the unjust, unequal, exploitative, feudalistic, suppressive and divisive society, we have avowed to create a nation based on justice, liberty, equality and fraternity. The Preamble, the Fundamental Rights and the Directive Principles give us the blueprint of a new society. The Constitution is in essence a call for social revolution.

The Constitution is of course bête-noire to the present ruling class precisely because the new society envisaged by the Constitution is designed to hand over the power of the country to the masses. The ruling party, rooted as it is in the ideology of the RSS hates democracy, equality, liberty and fraternity. It wants one party, one leader, one religion, one culture and one language. It wants to create Hindu Rashtra of the highest caste. It believes in Manusmriti and caste system. It hates other religions and cultures. Its entire cadre consists of the members of the highest caste with some show pieces from the other communities. The “Manuwadis” (protagonists of Manusmiriti) is an appropriate description of the RSS cadre. The priestly class and the financial stake-holders have always allied with each other to dominate society. The priests preach to the masses that the social and economic structure of the society is divinely designed and hence, it cannot and should not be altered. The money lords help the priests by offering sumptuous donations for their livelihood and places of worship. To day we see this sinister alliance of Manu and Money in its starkest form.

2) The question is why, during the last 70 years, no attempt has been made to create the new society ordained by the Constitution? Who and what are responsible for this?

The social system that we have inherited has not only a graded caste system and untouchability, but till the British established their rule, had prohibited learning and acquisition of knowledge by all except the highest caste i.e. Brahmin males. The result was the entire administration was in the hands of that caste, even during the Mughal and British period, and even to day it is dominated by them. The caste system and the ban on learning was the conspiracy by the highest caste to keep the reins of society exclusively in their hands. Naturally, they resented and are even to-day resisting, any attempt to empower others for fear of the loss of their power. They have been dominating all key institutions whether it is the bureaucracy, the judiciary, educational institutions, the media and the cultural and literary institutions. The Constitution might have promised a new society for the empowerment, welfare and progress of all the sections of the society, but its implementation is entirely in the hands of the members of the high caste who are hostile to the constitutional objectives, and try their utmost to block the measures to implement them. To-day, being in political power, they are not only in charge of the entire implementing machinery, but also of designing the policies in all spheres.  

During the last six years, since 2014, vigorous attempt have been made to recruit RSS cadres in all the institutions including the judiciary, and also to pressurise the institutions to fall in line. We have been witnessing the results.

The attempt of the present BJP-RSS regime is to strengthen the caste-system and keep the society divided in thousands of small watertight separate groups, hostile to and in constant conflict with, each other. The provisions of reservations are also being used to sharpen the differences between them.  

Deliberate attempts are also being made to fan communalism by targeting, in particular, Muslims and Christian communities. To divert attention of the people from the objectives of the Constitution, non-issues like “Ghar Wapsi”, “Love Jihad”, “Beef-eating”, “Mob lynching”, “Ram Mandir” and now NCAA, NRC and NRP, are also being deliberately whipped up. The conspiracy of the ruling class is to keep the people constantly divided, to prevent them from coming on the same platform to solve their common problems, particularly the economic problems and to avoid the implementation of the constitutional goals. That is why to-day the glorification of Manusmriti and burning of our Constitution, and the shrill calls for building “Hindu Rashtra” (that is Brahmin Rashtra) and the campaign for drubbing all those opposed to these machinations, as non-patriots and traitors.

Another equally important hurdle in the implementation of our constitutional goals, is the present economic system, which is otherwise known as capitalist system, free enteprise system, free economy and so on. The socially injurious features of this system are: it is profit-oriented and not people oriented, and therefore it does not work for the benefit of the people but for the prosperity of the profit-makers; it halts work when the prospects of profits become dim, it is interested in reducing the man-power and increasing the machine power, it results in concentration of wealth in a few hands and in creating an army of the unemployed and beggars, and with its enormous financial powers it controls political, social, educational and cultural life to suit its designs. The unemployment and gross inequalities lead to criminalization of the society. The corruption, frauds and scandals are endemic to the system. The generation of black money and its use for anti-social activities is inherent in it. The elections are a principal source of black money. What is worse, it destroys and pollutes the environment indiscriminately, without regard to its adverse effect on all life forms-human, lower animal and plant. This has already raised the temperature of the earth to the ruinous point. It is disgraceful for the mankind and particularly for its present generation, which is harbouring dreams to inhabit the other planets, not to be able to devise a rational economic order which will at least ensure the minimum economic human rights to all, reduce inequalities and enable all to live with dignity.

3) As the leading lights of the society, you must note in particular, the deleterious effect the present economic system has on our democratic life. The profile of our parliament for the tenure of 2014-2019 was: out of the 543 members of Loksabha 442 were crorepatis, and 229 members faced criminal charges. Out of 78 ministers in Modi’s cabinet, 72 were crorepatis and 24 ministers faced criminal charges. The Rajya Sabha in proverbially a rich man’s club. On an average 36% of the members of the State legislatures faced criminal charge.

The figures for 2019 – 2024 parliament are that no less than 43% members of the Lok Sabha face criminal charges. The ruling BJP party has 116 out of 301 members, who have criminal cases pending against them.

Is it difficult to imagine for whom these legislators and ministers would be operating? We thus find that our democracy has been reduced to the preserve of the moneybags and the cesspool of the criminals. The Supreme Court has recently taken note of it. The Courts cannot improve the situation. It is the people led by the social engineers like you, can certainly do it, if there is a will to do it.

4) The task for social revolutionary lawyers like you is therefore cut out. We have to create the new society as envisaged by the Constitution by legal and non-violent measures. The transition has to be smooth and least disruptive.  

This Conference must therefore give a lead to the nation and place before it the following minimum agenda, for urgent implementation.

1. Not only protect but also implement the Constitution in letter and spirit and create a new society based on justice, equality, liberty and fraternity. Eliminate social, political, economic and cultural inequalities and strengthen the roots of democracy, secularism, socialism and republicanism. Root out the seeds of communalism, intolerance, supremacism and divisiveness.

2. Change the present speculative, profit oriented, anti-social and anti-human economic system and replace it with a rational, people oriented and planned economic system which will ensure to every man and woman all the basic economic human necessities including employment, living income, shelter, free education and free health service, abolish inequalities and enable all to live a life of human dignity.

3. Protect and promote the environment. Prevent destruction and pollution of air, water and soil and create more and more healthy human, animal and plant life.

4. Defeat the designs of the communal, casteist and racist elements to divide the country by practicing intolerance and hatred of other communities and promote unity and integrity of the Country.

5. Boycott the religious bigots and all other divisive forces. They are the real anti-national and unpatriotic element. They are the untouchables of our society.

6. Create new self-less leadership to attain the above objectives.

I have briefly tried to focus your attention on the root causes of the misery, poverty and backwardness of our country, which is blessed with enough resources of all kinds to enable everyone to live with dignity. It is the machinations of the few amongst us which has been keeping our overwhelming majority in forced distress and destitute for centuries. It was the spread of education and knowledge among the hitherto deprived and disadvantaged which was expected to turn the tide. So far, there is no sign of it. How long shall we wait?

Please give a serious thought to it.

I wish your conference all success.

(The author, a retired judge of the Supreme Court of India was also chairman, Press Council of India. This address delivered in February 2020 at Vijaywada was on the occasion inauguration of 10th National Conference of Indian Association of Lawyers at Vijaywada. It remains relevant now)

The post Save country & constitution from the current govt: PB Sawant appeared first on SabrangIndia.

The Mandal Commission has laid down additional tests for recognising social backwardness.

For some time now, the country has been witnessing agitations for reservations by communities like the Jats in Haryana, Patidars in Gujarat and Marathas in Maharashtra. One thing common to these communities is that they consider themselves of a higher social status because they are higher in caste ranking but are economically vulnerable. They are caught in a pincer. They have no bread at home, but are too proud to beg.

Take the case of the Marathas, who have been demonstrating in huge numbers across Maharashtra. The community constitutes 32 per cent of the state’s population. After the formation of the state of Maharashtra on May 1, 1960, the Marathas are seen in larger numbers compared to others, in all elective bodies. However, on account of their traditional economic and educational backwardness, they are disproportionately less in number in the non-elected, elite, competitive, and strategically key institutions and professions, which have been the traditional preserve of the higher castes and classes.

On the contrary, they are found in considerably high number in the menial occupations and services. They are the mill and factory workers, porters and mathadi workers, the unorganised workers and marginal farmers, class IV employees in offices, constables in the police and jawans in the army. They are also found in large number among the slum and hutment dwellers, the illiterates and those below the poverty line. Yet, they are not considered “socially” backward. The plight of the Jats and Patidars is not very different. It is against this background that we have to examine the insistent demand for reservations of these communities, in education and government services.

The controversy over the reservations for these communities centres around the present criteria for reservation: For “socially and educationally backward classes” and denied to other backward classes such as the “economically” backward classes. It also raises a dispute as to who should be called “socially” backward. There is also a dispute with regard to the percentage of the reservations.

Taking first the question of social backwardness, generally speaking those who are economically backward are also socially backward. The Mandal Commission has, however, laid down additional tests for recognising social backwardness. Even if we take into consideration those criteria, it will be difficult to deny these communities the “category” of the socially backward class. Yet, they are denied this label.

The inclusion of any community in the socially backward class is necessary only for giving it reservation for entry into the educational institutions, since Article 15(4) of the Constitution specifically mentions that the reservations for entry in the educational institutions is restricted only to the “SC, ST and socially and educationally backward” classes. Article 16(4), which permits reservations in the government services, does not restrict them to the above classes but extends it to “any backward class” which does not have adequate representation in the services. Hence only “economically backward class” which does not have adequate representation in the government services, is entitled to claim reservation under that article. It, however, appears from the court decisions that they have restricted the definition of the “backward class” in Article 16(4) to the backward classes mentioned in Article 15(4). In view of the clear language of Article 16(4), it is not legitimate to do so. Hence, while interpreting Article 16(4) as per its clear mandate, we have to include in it any backward class whether it is only economically or only socially backward. Thus interpreted, communities like the Marathas, Jats and Patidars will be entitled for reservation in government services if they are not adequately represented in them. There is no need to amend the Constitution for that. The state government by legislation or executive order can create a separate class of the economically backward and prescribe a reasonable quota.

However, regarding reservation in educational institutions, since Article 15(4) confines the reservations, among others, to socially and educationally backward classes, the classes which are only economically backward will not be entitled to the same unless there is an amendment made in Article 15(4) to include them specifically as a separate class. An easier solution could be for the state governments to create enough seats in educational institutions to accommodate all the aspirants. The present agitation is mostly on account of the high cost of education. Students from the SC, ST and OBC communities get free education, hostel and books. If these facilities are extended to all the economically backward students there will be no agitation by the others. It is possible for the states to extend such facilities free to all the economically backward classes, if need be by levying taxes.

Coming next to the question of the percentage of reservations to be kept in education and in services, at the outset it must be noted that no quota can be legally assigned to any particular caste or community. Attempts to do so will not stand legal scrutiny. The present limit of reservation is restricted to 49 per cent on the ground that reservations being an exception to the general rule of equality, it has to be less than the rule. It is necessary to have a fresh look at this premise. It is true that the exceptions have to be smaller than the rule. However, the question arises whether the reservations can be considered an exception to the rule of equality.

For centuries, this country has suffered gross social and economic inequalities. The mere number of the Scheduled Castes, Scheduled Tribes and OBCs (without the inclusion of such castes as Jats, Patidars and Marathas) is over 60 per cent of the population, according to estimates. (According to the 2011 census, SCs are 16.6 per cent and STs 8.6 per cent. OBC population estimates vary from over 40 per cent to 50 per cent). Studies have revealed that 77 per cent of our population does not earn more than Rs 20 daily. The sum and substance of this survey of backwardness shows that about 85 per cent of our population, if not more, is backward. In other words, backwardness is a rule and forwardness is an exception in this country.

The majority of unequals are living with a minority of equals. To treat unequals equally is as much injustice as to treat equals unequally. Hence, in this country, injustice is being already caused to an overwhelming majority, that is 85 per cent of the population.

The reservations are a means to bring equality and as such complementary to the principle and rule of equality, and not an exception to it. Thus viewed, the limit of 49 per cent placed at present on reservations is both in principle and in practice unjustified.

It is also unfair to think that reservations affect the quality of education and administration. The assumption underlying this contention is those who come from the backward classes are unintelligent, incompetent, substandard and non-meritorious. This assumption is an insult to the great majority of our countrymen. The backward classes have remained undeveloped and underdeveloped because of the denial of opportunity to them to blossom, and not because they are in any way inferior in intelligence, ability or talent. A survey of the cut-off marks for the open category, backward classes, most backward classes and Scheduled Castes in professional courses made by Era Sezhian, a former MP from Tamil Nadu, (The Hindu, October 8, 1990), and reproduced in this author’s judgement in Indra Sawhney versus Union of India is revealing. For instance, the cut-off marks for the MBBS course in Madras University was 95.22 per cent for open category, 93.18 per cent for backward classes, 89.62 per cent for most-backward classes and 83.98 per cent for the Scheduled Castes. Since candidates from the backward classes had secured the said marks while living and studying in adverse social and material conditions, it has to be admitted that they are superior in merit to the candidates from the open category.

Much of the progress this country has made so far is on account of the contribution of 15 per cent of the population belonging to the advanced classes. If the remaining 85 per cent had as much opportunity as the advanced classes, this country would have been more advanced than most countries of the world. The reservations are meant for empowering the backward classes to enter the advanced class. Hence, the limit of 49 per cent on reservation needs to be revised both on the principle of equality as well as the basis of the ground reality in the country. The controversy with regard to the limit of reservation can be resolved if the Supreme Court reviews and revises the said limit. It is also necessary to caution the backward classes that reservations cannot be their sole saviour.

(The writer is a former Supreme Court judge; this article first appeared in The Indian Express on October 31, 2016 and is being reproduced with the permission of the author)

The post Revise Limit on Reservations Beyond 49 % argues PB Sawant, a former SC Judge appeared first on SabrangIndia.