As Citizens for Justice and Peace joined the late Justice PB Sawant’s family and friends to celebrate his illustrious life and fond memories on the occasion of his birthday, several jurists, legal luminaries and senior activists in the social justice and human rights movement had significant insights to offer, into his life and contribution to Indian public life.

His son and lawyer Vishwajit Sawant started off the meeting saying ‘Welcome to the Party’ as he called it wishing Justice Sawant ‘a happy birthday’ and urging people to celebrate his free-flowing ideas, thoughts which were the greatest source of tonic to him.

Justice BN Srikrishna, a well-known jurist and retired Supreme Court judge, also author of the famed Justice BN Srikrishna Report into the communal violence that broke out in Bombay post Babri Masjid demolition in 1992-83, was one of the chief speakers. Referring to Justice Sawant’s command over 10 languages, he commended that close to 300 people joining the memorial meet on zoom attributed to him and legacy. While speaking, he recalled one of his first memories of Justice Sawant who, as a practicing lawyer, never lost his cool while arguing. His first impression of Justice Sawant was that of a “gentleman at its core, with passion in his heart”. He believed Justice Sawant to be deep rooted in constitutional principles and committed to the Constitution. Another great quality of Justice PB Sawant was that he was passionate about mentoring youngsters and he hoped that his desire to train youngsters will make this nation a better place. He was known as Satyashodhak, a seeker of truth.

The next speaker, Justice Arvind Savant, former Chief Justice of the Kerala High Court, said that each individual learnt something new and precious from Justice Sawant. Even post retirement, he was at his desk, focused on public grievances and that his sheer brilliance, dedication and hard work, led him to become a Supreme Court judge. Justice Savant recalled how Justice PB Sawant was always concerned about Consumer Cooperative Societies, Trade Unions, Dalits and the underprivileged. Finally, Justice Arvind said that the late legal luminary left an indelible mark on whatever field he worked in.

Justice Ajit Prakash Shah, former Chief Justice of the Delhi High Court and the former Chairman of the 20th Law Commission of India noted that Justice Sawant always sought justice-oriented solutions, and had a good sense of humour. He opined that it was India’s great loss to not have him become the Chief Justice of India. “His liberal and activist views about the underprivileged might have worked against his elevation at the Supreme court”, he opined. Two most important contributions of Justice Sawant was in his participation in the probe into corruption allegations against former Supreme Court judge, Ramaswamy and also the Concerned Citizens Tribunal Report—Crimes Against Humanity, Gujarat 2002.  More than one speaker referred to the criticality of the Gujarat 2002 tribunal report. Justice Sawant’s espousal of the need for media independence and autonomy was also a significant contribution, said Justice Shah,

He further added that Justice Sawant recognised media rights as significant rights for protection of civil liberties. His post retirement work was an extension of his judicial career meant to uphold democratic ideas. Justice Shah, very passionately added, “Justice Sawant was the modern torch bearer of the satyashodhak parampara. The beliefs espoused by Jyotiba Phule and BR Ambedkar. His work and beliefs should inspire every High Court and Supreme Court Judge….He was a voice of conscience.”

Kumar Ketkar, a journalist, eminent writer and currently member of the Rajya Sabha, who was also part of the evening’s memorial, found Justice Sawant to be an extremely fearless man, as a judge as well as a lawyer. He also felt sorry for the dilution of media integrity. “A completely selfless man, he was convinced about the idea of justice”, said Ketkar.

Senior Advocate Aspi Chinoy celebrated Justice Sawant as a man, with a very strong social and political conscience, coupled with clarity of thought and a forthrightness which we all lack in today’s times. Chinoy stated that Justice Sawant’s career as a Supreme Court judge spanned a decade of law and that his personal growth increased after retiring. He highlighted the Elgar parishad event and saluted his courage to be part of a cause like this, and to sponsor the entire event along with Justice Kolse Patil.

Senior Advocate Chander Uday Singh, praised Justice Sawant for his erudite handling of legal, technical issues of each case while grounding his judgements in fundamental principles of the law. Justice Sawant had a knack of getting straight to the core of a case (problem) and finding solutions for it. “He had a great talent of writing judgments, he could reach the core of the matter, find solutions and then articulate all this; something which is a rare art and reflected in all his judgments,” said CU Singh.

He particularly elaborated on two significant judgements that significantly impacted for years the rights of workers and labour law: one was the 1982 HC Bombay Maharashtra Private Security Guards Act challenge (Justice PB Sawant), Tradesvel Security Services Pvt.v/s State Of Maharashtra delivered on November 2, 1982 ( Equivalent citations: (1982) 84 BOMLR 608). This judgement got the stamp of approval of the Supreme Court for decades and again in 2014. The second is the case of Blaze Advertising (Industrial Disputes Act) (under the Maharashtra Recognition of Trade Union and Unfair Labour Practices Act) where, in 1985, apart from laying down the law and a reading of the act, Justice PB Sawant held significantly that when protesting workmen utter slogans like “Maalik chor hai” etc in slogans they are not doing so as a form of abuse but are decrying the stealing of their rights by the owners. Senior counsel CU Singh commended the fact that even this judgement of a single bench of Justice PB Sawant held sway until a division bench of the Supreme Court reversed it in 2016.

Calling Justice PB Sawant the “live portrait/picture of a saint”, Justice BG Kolse Patil, former judge of the Bombay High Court, said that India would have benefited to have Justice Sawant as the Chief Justice of India, who never compromised with his ethics, principles, and commitments. Justice Kolse Patil was Justice Sawant’s lieutenant in a sense, they launched the land rights movement together in Maharashtra as also were co-sponsors of the December 2017 Elgar Parishad at Shaniwardada in Pune. Justice Kolse Patil was emotional when he spoke of the great personal loss that Justice Sawant had caused him and the wider movement for democratic rights.

Senior educationist Dr. Bhalchandra Mungekar, called Justice Sawant a “moral authority”, who has left us at a turbulent time given the socio-political environment of India. “He was a genuine social thinker whose defining attributes were courage, conviction and compassion”, added Dr. Mungekar. He also revealed that during the time Justice Sawant served as the Chairman of the Press Council of India, it was the golden period of upholding civil liberties. He hated poverty, injustice, pompousness and was so proud of Dr. Ambedkar and what he did for the nation.

Senior Advocate Mihir Desai highlighted how his judgment related to the Workmen’s Compensation Act and the final amount of compensation to be provided to workers showed his compassion for the working class. Further, Desai highlighted the Elgar Parishad event not just as a Parishad but as a gathering of 250 Dalit organisations that come together every year in Maharashtra, to assert their rights as Dalits. “He showed compassion at the ground level”, said Mihir. He was a rare judge who was willing to work among the people, said Desai.

Senior social worker Baba Adhav graced us all with his presence and said at the outset, “will not offer my condolences on his birthday. I will celebrate how he was a Satyashodhak (seeker of truth) and Samvidhanwadi (stood by the Constitution). He further revealed how Justice Sawant, in his last days, was pained by the recent attacks on the Constitution by fascist elements. Baba Adhav reiterated the humanist side of Justice Sawant, his understanding towards people’s grievances and paid respect to his idea of having a temple dedicated to the Constitution in every village of Maharashtra to honour the Constitution of India.

Senior Advocate Mohanrao Patil said that Justice Sawant voluntarily decided to work for the peasant and labour party for a minimum amount of remuneration even before he joined the Bae. Celebrating his commitment, Patil said, “Justice Sawant’s end goal was to administer justice or make sure that justice is served. This concern on his part was more intensified after his retirement as a judge. Instead of leading a peaceful retired life, he was involved with social causes, and this he did till the very end of his life.”

Senior Educationist and Executive Principal of Shankarrao Chavan Law school Bhausaheb Jhadav, stated how retired Justice Sawant was happy about the moot competition that was started in the law school after his name in 2013. He also revealed how Justice PB Sawant encouraged students from rural backgrounds to join such competitions for their overall development.

Citizens for Justice and Peace Secretary, Teesta Setalvad recalled regular phone calls from Justice Sawant to her , when he would ask, “Where are you and how are you?”. He followed CJP’s work closely especially related to minority rights, the land rights of Adivasis and forest dwellers as also the huge citizenship driven humanitarian crisis in Assam. She continued, “He had an unwavering faith, and always said that we must reach out to people. He kept asking questions, seeking answers and building bridges. A man deeply worried about India’s state and society, and the breakdown of institutions, Setalvad added that Justice Sawant’s work needs to be read, his words need to be heard, and his life needs to be celebrated. She said that he had inspired over 75 meetings and tribunals that the two had worked on closely together and constantly advised that we step up our outreach using various methods like podcasts, meetings, etc. She also paid her respects to his wife, Jayshree Sawant for her undying support and love. Justice Sawant was a people’s man and a just judge, said Setalvad.

“In 2004, then 2010 when the first set of false and malicious cases began to pile up against me, he was instrumental in heading the Committee in defence of me and other activists fighting for justice for the Victims of the Gujarat 2002 Pogrom,” explained Setalvad. “The three weeks spent with him in Gujarat as we criss-crossed districts, Ahemdabad, Godhra, Vadodara, Ankleshwar, Sabarkantha and the months thereafter completing the Concerned Citizens Tribunal Report, (CCT) Crimes Against Humanity report –of which I was a Convenor–were a Master Class in human rights and legal Education: our best minds, Jus PB Sawant, Justice Hosbet Suresh, KG Kannabiran and of course Sone Pe Suhaga (the icing on the cake), Justice VR Krishna Iyer. Justice PB Sawant’s masterpiece was the 4,500 word Secularism and the Constitution that finds place in Volume II of the report. Both he and Justice Suresh were in the UPA years that followed our spearheading vanguard in attempting to get a Prevention of Targeted and Communal Violence Law passed: a project aborted because of lack of political will and courage,” she added. .

Lastly, in a truly heart-warming moment, Justice Sawant’s only granddaughter Gavati Wad spoke on behalf of her and his five grandsons of Justice Sawant calling him “versatile, liberal, and open-minded.” Despite his mountainous personality, she said that he made everyone feel at home and taught them the virtues of discipline, patience and love. She quoted him saying, “The conclusion I have come to in life is humanism. Nothing else matters but humanism. You have to be human and rational in dealing with anything.”

A Video in Tribute and an audio visual by the family were also shown.

The You Tube of the Memorial meeting may be viewed here:

Related:

Equality postulates not merely legal equality but also real equality: Justice PB Sawant
Secularism and the Constitution

The post Justice PB Sawant: A strong voice a social & political conscience appeared first on SabrangIndia.

Image Courtesy:onmanorama.com

The preamble of our Constitution begins with the expression ‘We, the People of India’ and states that it is the ‘People’ who have resolved solemnly to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to all its citizens,

– JUSTICE social, economic and political;

– LIBERTY of thought, expression, belief, faith and worship;

– EQUALITY of status and of opportunity;

and to promote among them all,

– FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation.

Although the ideal of secularism was added together with that of socialism expressly in the preamble by the 42nd Amendment of the Constitution enacted in January 1977, it was implicit in the ideal of democracy itself, for there cannot be democracy when any section of society is discriminated against on any account – be it caste, religion, race, language, territory, sex etc. Equality in the matter of exercising all democratic rights and the absence of inequality among citizens on any account are the basis of a democratic regime. Secularism is thus the basis of democracy and a non-secular state cannot be democratic. Consequently, communalism, or the practice of discrimination against any individual or group of individuals in any form, in any walk of life is undemocratic and unconstitutional.

‘We, the people of India’ does not further mean ‘We, the Hindus’ much less, ‘We, the upper castes or the upper class’. It means the people of all castes and religions, the rich and the poor, those living in the plains and on the hills, in Kerala as well as in Kashmir and the North-East. The Constitution does not confer special favours on any social group or deny any rights to any group. Further, it is all the people of this country who have accepted the Constitution and pledged themselves to constitute this nation into a democratic, socialist and secular state. Not the Hindus, the Brahmins, the Kshatriyas and the Vaishyas alone.

Social, economic and political justice, the liberty of thought and of expression, belief, faith and worship, the equality of status and of opportunity and the dignity of the individual as declared by the Constitution are to be ensured to all, irrespective of the social group to which they belong. Likewise, the fundamental rights are conferred on all and the directive principles have to be operational for the benefit of each and every individual in the country.

Of particular significance in this connection are the fundamental rights enshrined in Articles 14, 16, 19 to 22 and 25, 26, 27, 29 and 30. Together, they ensure equality before law, equality of opportunity for education and employment, equal civil rights and liberties, equal freedom of conscience and of opportunity for all to profess, practice and propagate one’s faith and religion and also the right to the religious and the linguistic minorities even to run and manage their own educational institutions.

The fundamental duties laid down in Article 51A are further binding on all citizens and none can ignore them. Of particular importance are the duties:

• to abide by the Constitution and respect its ideals and institutions;
• to uphold and protect the unity and integrity of India;
• to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and sectional diversities;
• to value and preserve our rich heritage and composite culture.
• and to develop the scientific temper, humanism and the spirit of inquiry and reform.

Inspite of the aforesaid express provisions of the Constitution, a section of Indian society continues to believe that the country belongs exclusively to those who profess the religion of the majority, namely, the Hindu religion, and that those belonging to the other religions are aliens in this country. This way of thinking is further sought to be spread, and deepened and perpetuated even by resorting to violence. What is dismaying is that even among the so-called educated sections of society and those belonging to the economically higher strata, many have become a party to this irrational belief and attitude, either due to sheer ignorance, or on account of the mistaken notion of superiority of their religion and of the inferiority of the other faiths, or, due to some acquired prejudices or selfish reasons of their own.

It is therefore necessary to remind this section that Muslims and Christians in this country are as much of Indian origin as are the Hindus. About 95 per cent of the Muslims and 99 per cent of the Christians of today are those who were originally Hindus and had voluntarily embraced their respective religions, even while the rest might have been converted forcibly or under duress. The higher castes and the higher classes embraced these religions to seek pelf, power and position under the regimes of the time, while the lower castes, who formed the vast majority, did so to escape the tyranny and exploitation of the caste system and of the rituals prevalent in Hinduism. Faiths like Buddhism, Jainism and Sikhism were born as revolts against this very tyranny, inequality and inhumanity.

Recent archaeological finds and other historical data confirm that Indian civilisation and culture began with the Dravidian alias Sindhu civilisation, which was one of the most ancient and advanced civilisations of the world. It is the Dravidians who are the original inhabitants of this land, and not the Aryans who came from the North about 1,500 years after the Dravidian civilisation had already been fully established, and was at the peak of its progress. The Aryans were a semi-nomadic, semi-barbaric and pastoral tribe when they arrived in this land around 1,500 BC. They raided the Dravidians who were traders and agriculturists and who had settled on the banks of the river Sindhu, Harappa and Mohenjodaro being their major centres of settlement. The Aryans raided not once but several times over a period of years, massacred and looted the Dravidians and abducted their female and male children, the former for marriage, the latter to serve in their armies. The peaceful Dravidians, who do not seem to have had any standing armed force, fell an easy prey to the semi-barbaric Aryans and fled mainly to the South.

Later, as happened in the case of some of the other raiders on this land such as Huns and Shaks, the Dravidians and Aryans assimilated with each other. The present Indian population has thus a mixed racial composition. That is why this country has always been looked upon as a land with a composite culture. The massacres, loot, and abductions of the natives were not new to this land, which was always vulnerable to the raiders and the marauders from abroad, for a variety of reasons that need not be gone into here. The point to be noted is that almost all the people of this country today have been inhabitants of this land for centuries. None is an alien and none can claim purity of race. Accidents of history, the exploitative and tyrannical caste system, the selfish and intolerant attitude of the privileged classes, the rise of indigenous rebellious religions like Buddhism, Jainism and Sikhism, the arrival of religions like Judaism, Christianity and Islam from abroad and the embracing of all of them by the natives — all these have contributed equally to the distribution of the inhabitants of this land among various religious communities and sects. This distribution is not a division and is certainly not one between natives and foreigners. Non-Hindus are as Indian as are the Hindus of various castes and sects.

 Communalism

Before the Partition of the subcontinent on religious lines, the total population of this country was about 30 crores, of which about 8.50 crores were Muslims and. It is not necessary to consider here the population of the Christians, Sikhs, the Jains, the Buddhists, the Jews or the Parsees. Today, India has about 84 crore Hindus and 12 crore Muslims. India has the second largest population of Muslims in the world, next only to Indonesia; Both Pakistan and Bangladesh are behind India terms of the size of the Muslim population.

What exactly forms the basis of a nation is certainly a fascinating subject for discussion. But that need not tempt us to digress from the main issue here. Suffice it to say that religion, though a major factor, is neither a necessary nor always a bonding element. History is replete with instances of intra-faith wars between the Hindu kingdoms, the Christian nations and the Muslim states and of violent conflicts between different sects of the same religion. When Hindu kings and Muslim kings fought with each other, their armies had sizeable proportions of Muslims and Hindus respectively, even as commanders and chiefs of their armies. While Hindu India and Hindu Nepal were never one nation, Muslim Bangladesh separated from Muslim Pakistan within a quarter of a century after a bloody war, mainly on the question of language. Besides, the lapse of 55 years after Partition should not allow us to forget that the Muslims in Pakistan and Bangladesh have the same legacy of the original Dravidian civilisation as have the Hindus, Muslims and others (except Parsees) of this land.

In this connection, it should also not be forgotten that Hindus have never been a united community. The different castes, particularly the higher castes and the lower castes, have been in continual conflict with each other and unfortunate incidents of violent attacks against each other occur frequently even today. Yet, it is a fact that the two-nation theory based on religion came to be propounded and the partition of the country was eventually effected on that basis.

Who were the proponents of the theory?

In 1923, Shri VD Savarkar, then associated with the Hindu Mahasabha and who later became its president, propounded his thesis of Hindu Rashtra (Hindutva). According to this thesis, all Hindus were tied together by the bonds of a common fatherland, ties of blood, a common culture and civilisation, common heroes, common history and, above all, the will to remain united as a nation. Further, according to him, culture was inextricably linked to territory and the membership of the Hindu nation depended upon the acceptance of India both as Fatherland and Holy Land. This excluded Muslims and Christians who look to Mecca and Jerusalem respectively as their Holy Land, although Shri Savarkar did not deny that they looked upon India as their fatherland. In defining Hindu nationality, further, he underlined the importance of Hindutva, a religious, racial and cultural entity in which Hinduism as a religion formed a part of the whole.

The thesis, besides being divisive, is ahistorical and unscientific. The obvious flaws, to state only a few, are that all the original inhabitants of the land have common blood. But if blood is to be distinguished by religions or other social grouping, then there are no common ties of blood on account of the pernicious caste system. Consequently, there is also no common culture and civilisation. The lower castes were hardly ever allowed to play their role in the making of history. Their gods and heroes have also been different. The caste system has always prevented social unity and even interaction and exchange among the Hindus and also among those who carried the caste system with them when they converted into other religions. As regards the heroes of the same castes, Rama and Ravana who are depicted as the enemies of each other by one of the two great epics of the Hindus, namely the Ramayana, they are both worshipped, in the north and the south respectively. According to this thesis, Indians living abroad can no longer look to this country as their Holy Land, while the Buddhists in other countries who look to Bodh Gaya as their Holy Land should be considered aliens in their own countries.

As regards the willingness to live together as a nation, this begs the question. No people desire to be torn away from the soil and the surroundings in which they have been born and grow up unless they are denied the elementary right to live with dignity as human beings. Constant insecurity of life, the denial of equal status and opportunity, discrimination in the social, political, economic and cultural life of the nation and threats to their distinct language, faith, religion or culture alienate sections of society from the mainstream of national life. Every nation has within it more sub-social groups than those based on race, religion, language etc. It is for the major national group, which is in a position to dictate and dominate, to see that no social group is discriminated against in any walk of life on any grounds. No nation is planned. It emerges out of the feeling of togetherness, which is created by common hopes and aspirations, common apprehensions and a common stake in progress and prosperity. Bonds of unity and fraternity are to be built by chords, which have to evolve and grow from within. They cannot grow when sectarian forces attempt to keep the people apart for one reason or another. The responsibility to keep a nation together lies with the majority, by allowing no scope for the generation of any feeling of alienation within any social group; instead, the majority should take all steps to foster the sense of unity and integrity.

Further, while defining the meaning of the word ‘Indian’, Shri Savarkar has obviously and completely ignored the Dravidian civilisation. According to his criteria, India will not be one, but many nations. Incidentally, those like Shri MA Jinnah and others, who promoted and propagated Pakistan, also claimed this factor, among others, on the grounds that there were no common heroes, no common culture, civilisation and history and no common Holy Land.

In a conference held in Lahore in 1940, the Muslim League passed a resolution calling for the formation of a separate state of Pakistan for the first time, although the concept of Pakistan was left vague, with no definite formulation of territorial boundaries. The demand for partition was, of course, based on religion, with Muslim majority territories being grouped together as a nation. Some of the reasons for this demand were the same as those sanctified by the Savarkar thesis, which was mentioned earlier.

During alien colonial rule, communal forces from both the major religious groups, namely, Hindu and Muslim, did not participate in the freedom struggle, and while Muslim communalists welcomed the formation of Pakistan when it was announced, Hindu communalists maintained a strategic silence. However, it was ultimately a Hindu fanatic who, consumed with rage at the partition of the country, assassinated Mahatma Gandhi while holding him responsible for this partition. While riots between the two communities did erupt during the course of the freedom struggle, rocking the country from time to time, Partition triggered off a wave of violence — loot, arson, rape and massacre — unprecedented in the history of the world. The large-scale communal clashes resulted in the loss of no less than five lakh innocent men, women and children on both sides. The bitterness born during the pre-partition riots became venomous after the carnage in the days that immediately followed Partition. However, due to adroit handling of the situation by the leadership of the country at the time, the country soon witnessed the restoration of peace and the gradual harmonisation of relationships between the two communities. Were it not for the wisdom and foresight displayed by the committed and secular statesmen who led the nation then, this amazing feat would indeed have been impossible to perform within such a short time.

However, the riots that took place just before and after Partition, and the carnage that was witnessed then, fed communal forces in both communities and have kept their fires burning until today – always awaiting an opportunity for conflagration. Over the last 55 years, the smallest incidents, whether actual or rumoured, have been used as pretexts by which to fuel riots at one place or another. These years have also witnessed pre-planned and organised attempts by communal forces to disturb age-old peaceful and harmonious relations between the two communities in various places, which had withstood the test of time despite much provocation elsewhere in the country. Vested interests on both sides appear to concentrate on keeping communities divided, and the conflicts and tension between them constantly alive, and to thrive at the cost of the innocent men, women and children of both the communities.

The only persons who have benefited and are benefiting from the communal conflicts are firstly, the priests and the pundits and the mullahs and the maulvis. Not only does their livelihood depend on their respective religion, but their status, power and position are equally sustained by it. The priest of every religious group is an uncrowned king of his followers. His word is law and his preaching is the last word in wisdom. His interpretation of the religious text is final and his pronouncements are the ultimate authority on every subject. He is interested in expanding the empire of his followers and maintaining its identity strictly distinct from the others. Any blurring of distinction between his followers and the others is perceived as harmful to his interests, and he loses no time in raising the alarm of ‘religion in danger’ the moment he apprehends or imagines any intrusion in, or encroachment on, his regime.

Another class of people who have always benefited from communal disharmony is politicians, who look upon followers of their religion as their vote banks. Any harmony between different religious groups is detrimental to their interests. They have, therefore, no interest in bridging the gap between communities, but have, in fact, a positive stake in ensuring that it remains as wide as possible. When they have no issues, policies or programmes to offer the electorate, or when they are not interested in these issues, or when they want to divert people’s attention from the real issues, which they are either unable to solve or the solutions of which are likely to affect their own interests, they resort to the easiest path, namely, an appeal to the religious sentiments of the people to garner votes. This phenomenon is particularly common among politicians who have nothing in common with the people and their problems. Like the priests, they succeed in misguiding their ignorant co-religionists in the wrong direction and towards the wrong goals, which are against the interests of the people themselves. The capital asset of both priests and politicians is the ignorance of the common man, who is caught up in the humdrum of daily life and burdened with its strains. He falls as easy prey to appeals to his religious sentiments, which are manipulated by priest and politician for their selfish purpose. So far, that is how both these groups have succeeded in stoking the flames of communal hatred, bias and prejudice and in triggering violent clashes whenever convenient to them. The blame for such misuse of the ignorance of the masses lies squarely on the responsible sections in society who have so far failed to educate the people on proper lines.

Religious fanaticism among the people also has its source in the constant preaching and actions of communal organisations. Since they are interested in sharpening the differences between religious groups, it is in their interest to make their followers hard-boiled, unreasonable and passionate followers of a manipulated form of the religion concerned, a form which is, in fact, farthest from the actual tenets of the faith. That is why it is a common feature, observed in every religious group, to unite whenever the ‘religion in danger’ slogan is raised. Priests and politicians vie with each other in mobilising people around this slogan, and they persevere in keeping the slogan alive all the time. This fostering of fanaticism is, of course, facilitated by the ignorance and the lack of awareness amongst the people. That is why vested interests have a stake in keeping ignorant as many people as possible and for as long as possible. This is the reason for their insistence on fundamentalist and fanatical notions and on following strictly every word handed down to them by the religious texts, custom and tradition. Any attempt at a scientific inquiry into these texts and traditions is not only frowned upon and resented, but those who attempt it are socially boycotted, persecuted and often even physically eliminated. Fundamentalism and fanaticism thus continue to thrive, inspite of the advances made in science and technology.

Secularism

Inspite of the clear declaration in the Constitution that this country shall be a secular state, the Hindu communal forces in the country have always preached that the country can only be a Hindu state and has to be governed as such. Those who insist on its secular character have been derisively nicknamed pseudo-secularists by them. To buttress their contention, they argue that while others have been following and supporting policies and measures to appease the minorities, particularly Muslims, they alone preach true secularism by insisting that no special favours be bestowed on the minorities.

It therefore becomes necessary to examine the concept of secularism as is understood and accepted in this country and interpreted by the Supreme Court. The historical context in which the concept of secularism was born and therefore the meaning it bore initially were different from the present context and the usage it has come to acquire today. The conflict between the King and the Church, which was ultimately resolved in favour of the former, formulated the well-known proposition: “Render therefore unto Caesar the things which are Caesar’s; and unto God, the things that are God’s.” What this meant was that secular activities are the exclusive prerogative of the government while spiritual activities were the business of the Church, and that one would not interfere with the activities of the other.

Once religion was divorced from the business of state, the state ceased to be identified with any particular religion or its practices, and the religion (Protestant or Catholic in the specific historical context) that the individual king or queen practised varied with the incumbent of the office. Thereafter, the open hostilities against and the harassment and persecutions of those who professed and practised the tenets of a religious order other than that of the ruling king or queen ceased. The persecution of rival religions or sects had also its own unsavoury history as a backdrop to the ultimate affirmation and the triumph of the principle of the observance of secularism in the governance of the state. As a logical corollary, all religions and sects were treated equally with their followers free to profess, practice and propagate their faith.

The undisturbed and unhindered practice of one’s faith later came to be recognised as a part of fundamental human rights — the freedom of conscience and also the right to freedom of speech and expression. Both these rights are basic to any meaningful scheme of democratic rights of the people and one cannot think of any democratic regime without them. A nation which enthrones any particular religion as the religion of the state not only relegates the other religions and religionists to a secondary status, but also negates the basic tenet of democracy in that it denies them the equality of status and of the rights so essential to democracy. It disqualifies itself from being a democratic nation.

There are at present two different modes of practising secularism. In the USA, a leading secular state, the state keeps itself equidistant from all faiths and does not favour even giving grants to educational institutions where religious prayers are recited. On the other hand, the secular practice accepted in this country, which is also endorsed by the interpretation of secularism given by the apex court, is different from the US variety. In India, instead of equal indifference to or equal distant from all religions as in the USA, we follow the principle of equal favours or equal protection to all religions, sects and faiths. Whether a religion is of the majority community or of the minority, is immaterial for the secular state, all religions being treated as equal and no religion or religious practice being adopted by the state in the governance of the country.

We have been following this meaning of secularism in all our state affairs, since the inception of our Constitution. In fact, this was the concept of secularism advocated and promised to all sections of our society during the freedom struggle, and even before Independence, this was the way the then elected provincial governments administered the country. It is strict adherence to this concept of secularism that prompted the then national leadership to reject the two-nation theory as well as the demand to make this country a theocratic state by adopting the religion of the majority, namely, the Hindu religion as the state religion. People belonging to different religions, sects and faiths could come together to struggle for freedom because of this promise by the leadership of the then dominant national political party, namely, the Indian National Congress. The secularism of the kind we have been practising in this country has thus been an article of faith with us, and not a mere provision in the Constitution. It is also an essential part of the basic structure of our Constitution. The defiance of secularism in any manner, by word or action, is thus a defiance of the Constitution itself.

The persons who met in the Constituent Assembly knew too well that they would have to deal with a conflict-ridden, pluralist society. So they provided for secularism as a value. The major inarticulate premise of the constitutional scheme has been secularism until the 42nd Amendment to the Constitution, when it was made explicit as one of the objectives. Secularism as a concept came into existence during periods of early capitalism, as a response to the misery inflicted on the poor by unregulated working conditions. In fact, the dictionary defines secularism as a doctrine that morality should be solely based on regard to the well being of humankind in the present life to the exclusion of all considerations drawn from a belief in God or in a future state. Secularism was later eclipsed by the emergence of Socialist thought.

Thus secularism is included in the objectives set out in the Preamble, the Article pertaining to abolition of untouchability, bonded and child labour and almost all of the Directive Principles in the Constitution. This is how the Supreme Court defined Secularism in the crucial SR Bommai case, a decision rendered in the backdrop of the Ayodhya controversy. Now that ethnic claims and conflicts abound all over the world there is a necessity for the world body to bring forth an International Covenant on secularism in plural societies within states.

The refusal to see any good in others, the claim of the superiority of one’s faith and the inferiority of other faiths, the all-out attempts to maintain separate identities, the anti-social policy of exclusiveness and the irrational interpretation of traditions and a strict adherence to the religious texts, all tend to thwart the development of the scientific temper and the spirit of inquiry, which in turn prevents individual and social progress. Mankind today needs the acceptance of an an all-embracing humanism, not sectarian indoctrination. A religion bereft of humanism is no religion at all and a religion which preaches humanism can never be sectarian.

(Published by Citizens for Justice & Peace, www.cjp.org,in. Report released on November 21-22, 2002 at Ahmedabad, Available at https://www.sabrang.com/tribunal/vol2/secularism.html, Pages 182-190 of Volume II of the Report)                 

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“The preventive detention law by its very nature has always posed a challenge before the courts in a democratic society such as ours to reconcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people.”

____Justice PB Sawant

The above was an observation made by Justice Parshuram Babaram Sawant in the Alka Subhash Gadia case in 1992. His words proved prophetic as years later, scores of activists were detained, arrested, summoned, when they stood up for human rights, or raised their voices against Laws such as the Citizenship (Amendement) Act.

On June 30 2021, the Retired Supreme Court Judge PB Sawant, would have marked his 91st birthday, and in all probability would have been writing his column, and commenting on the current social political scenario, where minorities, women, dalits, migrant labourers, tribals, continue to face both harassment and state apathy. He passed away in his Pune home on February 15 this year, leaving behind many who mourn his passing, but also continue to celebrate the legacy of fairplay, bravery, kindness, and empathy that he has left behind.

In the courtroom Justice Sawant ensured social, political justice for all. After retirement he continued to speak up for those who could not.  “Equality postulates not merely legal equality but also real equality…  equality of opportunity has to be distinguished from the equality of results” is not merely one of his most memorable quotes, it is a life mantra. 

Born in 1930, he obtained an LLB from Mumbai University and started practicing in the Bombay High Court, often representing labourers and farmers early on. He was inspired by Dr. BR Ambedkar and Jyotiba Phule, and strived to empower the most oppressed and marginalised sections. He retired in 1995, but remained active in public life.

Justice Sawant authored three books: Mass Media in Contemporary Society (1998), Advertising Law and Ethics (2002) and A Grammar of Democracy (2013). The titles are self explanatory, and in the scores of opinions and other writings that he authored. Justice Sawant always underlined the rights of the citizens, especially the marginalised.

As written by Teesta Setalvad in her column in Indian Express soon after his passing, “His unwavering clarity and commitment to deepening democracy at the grassroots was a passion for this jurist and also led him to be recognised for verdicts of depth and calibre. Be it the Mandal verdict or the famed S R Bommai judgment — these ironically could be counted among the least cited verdicts of the highest court in the land — both displayed an understanding of Indian state and society that was real and rooted.”

Here are some of the landmark observations made by Justice Sawant, the champion of secularism, citizenship, equality, and human rights for all. 

The S.R Bommai case (1994) 

“The States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule,” said Justice Sawant, he was a part of a Bench that held secularism as part of the basic structure of the Constitution. It was in March 1994 that the Supreme Court delivered a nine member verdict, known in popular legalese as S.R. Bommai vs Union of India (Supreme Court Cases (SCC), 1994, Volume 3).

The SR Bommai vs Union of India, March 1994 judgement heralded for its endorsement of Indian federalism, is also a sharp and biting commentary on inroads of religion into politics and safeguards Indian secularism. Bommai‘s promise of fair federal play, the judgment’s mandate for secularism, and for action against parties and State governments violating the constitutional philosophy that prohibits the mixing up of religion and politics. This judgement is yet to be acted upon.

Elgar Parishad and Bhima Koregaon

Even as scores activists were being questioned by investigation agencies, in the Bhima Koregaon investigations, Justice Sawant publicly said it was he and Justice Kolse-Patil who were the main organisers and sole funders of the Elgar Parishad conclave held on December 31, 2017 in Pune. This declaration came in the wake of the National Investigation Agency’s claims it was the activists’ fiery speeches that precipitated the violence at Bhima Koregaon the following day on January 1, 2018. Sawant, one of the senior most jurists of the country, had told CJP secretary and human rights defender Teesta Setalvad in an exclusive interview  in 2018, “The right-wing forces do not accept our present Constitution. They believe neither in democracy, nor socialism nor secularism.” He explained how the two sets of raids on activists and dissenting voices are a part of a wider RSS agenda to replace the Constitution with the Manusmriti and further their supremacist agenda. He had said that the nationwide arrests of activists was a “ploy” to divert attention from a huge Hindutva terror plot. He had put on record that the Parshad had not been funded by Maoists and had no Naxal links. Most of the activists arrested in the case remain behind bars. 

Justice Sawant and the news media

Justice Sawant had served as chairman of the Press Council of India and in his tenure there made one of the biggest observations about the media, cautioning against corporate ownership of the media, and media running instant exit polls. These two points continue to be contentious, especially in the current political scenario, where terms like ‘godi media’ are used to describe journalists acting as pro-government reporters. Justice Sawant had opined that publication of exit polls be restricted till the last vote was cast. His words were a warning of how the media can be used or manipulated.  

The Press Council of India opined, “Newspapers should not allow their forum to be used for distortions and manipulations of the elections and should not allow themselves to be exploited by the interested parties.” It noted that where polls are on staggered dates, “Media is seen to carry exit-poll surveys of the polls already held. This is likely to influence the voters where the polling is yet to commence”. It stated that “it is necessary that the media does not publish the exit-poll surveys till the last polls are held.” The Press Council then issued a detailed media guideline in respect of the exit-polls, as well as one for journalists covering financial matters.

Abrogation of Article 370 is illegal

“Abrogation of Article 370 is illegal,” he himself wrote in his opinion column in The Indian Express on  September 27, 2019.  He wrote, “We should realise that with all the leaders of the Kashmiris under house arrest, the communications closed, seething discontent of the people fermenting every hour, the people of Kashmir cannot be suppressed with force for long. Both history and common sense dictate against it… There is still a scope for an amicable political settlement, by which the affection of the Kashmiris can be won. For this, however, our government has to shed its macho image and come out with realistic measures to win the confidence and trust of the Kashmiris.” His prophetic words are recalled after the Prime Minister  Narendra Modi held a 3-hour meeting with these very leaders of Jammu and Kashmir, aimed at removing “Dilli ki Doori as well as Dil Ki Doori”.  

There are many, many such observations made by Justice Sawant, which should make for mandatory reading in schools and colleges across India so generations of citizens can understand both secularism and the Constitution.

Citizens for Justice and Peace (CJP) will join Justice Sawant’s family in organising a memorial to the legal luminary and humanitarian. You too can join his friends, colleagues, students and journalists in celebrating the life of Justice PB Sawant on June 30, 2021. Register here:

Related:

When the Supreme Court Firmly De-linked Religion from Politics
A Fact Sheet To Explain the Significance of the SR Bommai vs Union of India Case
Justice PB Sawant no more

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On February 15, 91-year-old Justice PB Sawant breathed his last, leaving behind friends, family and a sea of people whose lives he had touched over the course of not just his career as a lawyer and a judge, but also post retirement.

Born on June 30, 1930, he obtained an LLB from Mumbai University and started practicing in the Bombay High Court, often representing labourers and farmers. He was inspired by Dr. BR Ambedkar and Jyotiba Phule, and strived to empower the most oppressed and marginalised sections. In fact, he was also president of the Mahatma Phule Samta Pratishthan for several years.

He went on to practice in the Supreme Court of India. He was appointed a Judge of the Bombay HC in 1973 and a justice of the Supreme Court in 1989. Justice Sawant retired in 1995, but that was only the beginning of his second innings as a man committed to justice and equality.

In 2002, Justice Sawant joined retired justice Hosbet Suresh on an Indian People’s Tribunal headed by Justice V. R. Krishna Iyer to investigate the 2002 Gujarat riots. Their report included the testimony of the now slain Gujarat BJP Minister Haren Pandya who said he had attended a meeting convened by then Gujarat Chief Minister Narendra Modi on the evening of the Godhra train burning incident, where Modi had directed all attendees to allow Hindus to vent their rage.

Justice Sawant also chaired a commission created in September 2003 to look into allegations of corruption against four Maharashtra ministers: Nawab Malik, Padmasinh Patil, Suresh Jain and Vijaykumar Gavit. He submitted his report in February 2005 indicting all but Gavit who was exonerated.

Justice Sawant also authored three books: Mass Media in Contemporary Society (1998), Advertising Law and Ethics (2002) and A Grammar of Democracy (2013).  

A proponent of press freedom, he also served as chairman of the Press Council of India. But his commitment to free press did not mean he would allow channels airing defamatory content against him to go scot free. Justice Sawant sued Times Now for Rs 100 crores in September 2008 for wrongly using his image in a story, thereby defaming him.

On December 31, 2017, Justice Sawant, along with retired Bombay HC Judge BG Kolse-Patil, convened the Elgaar Parishad at the Shaniwar Wada in Pune. It is at this gathering that many activists made speeches against casteism. The activists, their associates as well as several others who were neither present, nor in any way connected with the Elegar Parishad event were later implicated in the Bhima Koregaon conspiracy, where the National Investigation Agency says that it was their fiery speeches that precipitated the violence at Bhima Koregaon the following day on January 1, 2018.

Both, Justice Sawant and Justice Kolse-Patil openly said that it was they who were the main organisers and sole funders of the Elgar Parishad. But a vindictive regime instead went on to target other activists.  

“‘Elgaar’ means loud invitation or loud declaration, and our main theme was to save the Constitution and the nation,” Sawant had told CJP secretary and human rights defender in an interview in 2018. “The right-wing forces do not accept our present Constitution. They believe neither in democracy, nor socialism nor secularism,” he had said. 

Sawant and Kolse-Patil had strategically selected December 31 as the day for the Parishad, because lakhs of Dalit citizens from across the country were set to gather at Bhima Koregaon near Pune the next day, to commemorate the 200th anniversary of an 1818 battle in which a British army with a continent of Mahars defeated the much stronger forces of the Peshwas, a regime noted for their casteist policies.

In fact, in September 2018, in an exclusive video interview to Teesta Setalvad, (Retd) Justice PB Sawant discussed why no action had been taken against Sambhaji Bhide in the Bhima Koregaon case. He also explained how the two sets of raids on activists and dissenting voices are a part of a wider RSS agenda to replace the Constitution with the Manusmriti and further their supremacist agenda.

The interview may be viewed here:

Justice Sawant is survived by his wife, two daughters and a son. 

Related:

EXCLUSIVE: Justice PB Sawant lays Threadbare the RSS’s Agenda
The Truth about the Elgaar Parishad
Crackdown on Activists Politically Motivated: Justice PB Sawant

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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)

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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)

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