Vivekananda also emphasised that the message of Jesus of Nazareth was meant for all of humanity, showing us the path of truth. As he put it, “In him is embodied all that is the best and greatest in his own race, the meaning, the life, for which that race has struggled for ages; and he himself is the impetus for the future, not only to his own race but to unnumbered other races of the world.”

While Swamiji was deeply respectful of Jesus Christ and acknowledged that His message was universal, he did not fully engage with the core aspects of Jesus’ teachings, particularly His focus on addressing the profound inequalities of the material world and His sacrifice for the downtrodden.

Rather than confronting these real-world issues, Swamiji sought to place Christ in the framework of a “Great Soul,” interpreting His life and teachings through the lens of his own Vedantic philosophy. In simpler terms, Swamiji seemed to suggest that the message of Jesus was essentially an articulation of the non-dualist Vedantic thought that he himself espoused.

Although Swamiji praised Jesus extensively in his lecture, a significant part of his effort was spent creating an artificial binary between the East and the West. Influenced by Orientalist writings, Vivekananda appeared to present an East-versus-West dichotomy to a Western audience in the early twentieth century. During this time, rapid industrialization had unsettled many Europeans, prompting some to seek solace in the “spiritual” East. The Western fascination with Swamiji’s words should be understood within this historical context.

In his lecture, Vivekananda strongly argued that Jesus belonged to the Eastern world (Asia). He went even further, boldly claiming that all great souls and incarnations originated in the Orient. As he stated, “No wonder, the oriental mind looks with contempt upon the things of this world and naturally wants to see something that changeth not, something which dieth not, something which in the midst of this world of misery and death is eternal, blissful, undying. An oriental Prophet never tires of insisting upon these ideals; and, as for Prophets, you may also remember that without one exception, all the Messengers were Orientals.”

However, Vivekananda failed to recognise that human races, religions, and spiritual practices are not confined to a specific region. People live beyond the Oriental world, practicing a wide range of faiths and relating to God in diverse ways. Even the concept of God is not central to some religions. Some faiths possess sacred texts while others have no history of revealed scriptures. These complex sociological and theological practices were overlooked by Vivekananda in his effort to create a sharp distinction between the Oriental and Occidental worlds.

Vivekananda extended this argument further, making the unsubstantiated claim that European society is primarily “political,” while the Eastern world is “religious.” According to him, “‌The voice of Asia has been the voice of religion. The voice of Europe is the voice of politics.” To support this view, he asserted that “the voice of Europe is the voice of ancient Greece.” He also suggested that because the ancient Greek civilization was primarily focused on the material world, its profound influence on Europe led the continent away from religion.

As he explained, “The Greek lives entirely in this world. He does not care to dream. Even his poetry is practical. His gods and goddesses are not only human beings, but intensely human, with all human passions and feelings almost the same as with any of us. He loves what is beautiful, but, mind you, it is always external nature; the beauty of the hills, of the snows, of the flowers, the beauty of forms and of figures, the beauty in the human face, and, more often, in the human form—that is what the Greeks liked. And the Greeks being the teachers of all subsequent Europeanism, the voice of Europe is Greek.”

Vivekananda largely overlooked that an influential segment of the Western world had claimed the Greek tradition as part of its own cultural heritage. However, the image of Greece has shifted throughout history; some scholars argue that Greece was once viewed as a part of African civilization. Moreover, the dominant discourse in post-Enlightenment Western civilization has often failed to acknowledge adequately the influence of Islam and other non-Western traditions on the rise of Europe.

It appears that Swami Vivekananda spoke within the framework of the dominant European narrative, which positioned Greek culture as the foundational heritage of post-Enlightenment European civilization. However, he gave this argument an intriguing twist by attributing Europe’s secular outlook to the ancient Greeks, claiming this to be the primary cause of Europe’s distance from religion.

The binary opposition that Swamiji established between the religious East and the materialistic/secular West profoundly influenced India’s nationalist movements and post-independence politics. Decades later, when Rabindranath Tagore delivered his lectures on nationalism, he appeared to draw on a similar logic, explaining societal phenomena through binary oppositions. In his lectures, Tagore framed a dichotomy between the social and the political, famously stating, “Our real problem in India is not political. It is social.”

While Swamiji rejected both Greek and European modes of thought, he crafted his own version of religion, which he saw as complementary to the teachings of Jesus. For Vivekananda, religion was crucial in Asia, uniting people despite their differences. Although the unifying role of religion cannot be denied, Swamiji’s lecture overlooked that this so-called religious solidarity is often fractured along caste, class, and gender lines. In other words, divisions by caste, class, and gender are frequently obscured by ruling elites who use religion as a tool to artificially forge unity.

Claiming that people in Asia are inherently religious, Swamiji argued that, unlike the Greeks, Asians are not confined to the material world but instead seek to transcend it, looking for something immutable and indestructible. Drawing on Vedantic philosophy, he suggested that religious individuals in the East go beyond the empirical world in search of “the changeless.”

In his depiction of the religious individual, Vivekananda presented a figure who disregards the material world, focusing instead on what is eternal and imperishable. In contrast, materialist and Buddhist philosophies critique this denial of the material world, emphasizing the dynamic nature of existence. Interestingly, even Jesus Christ—who fought for the rights of the poor and challenged social injustices—is appropriated within the broader Vedantic framework.

In my reading of Vedantic philosophy, I find that it contains some elements of equality, particularly in its belief that God resides within all beings. Since it claims that every individual embodies God, Vedanta has the potential to broaden the social foundation of Hinduism.

Vivekananda expanded on this concept in his lecture, emphasizing that God resides within the soul of every person. This aligns with the message that all are children of God. He expressed it as follows: “As man advanced spiritually, he began to feel that God was omnipresent, that He must be in him, that He must be everywhere, that He was not a distant God, but clearly the Soul of all souls. As my soul moves my body, even so is God the mover of my soul. Soul within soul. And a few individuals who had developed enough and were pure enough, went still further, and at last found God.”

However, the limitation of this perspective is its failure to address social inequality. If all are embodiments of God, then how do we define the oppressed and the oppressors? In other words, Vivekananda’s religious theory acknowledges the existence of sorrow but does not consider the causes of sorrow in the world. To escape from sorrow, Vedantic philosophy suggests transcending the material world. Yet, the philosophers of oppressed communities urge people not only to examine the roots of inequality but also to actively work toward eliminating them. The life of Jesus, as the Messiah of the downtrodden, offers numerous examples of the fight for an egalitarian world—an aspect that Vivekananda overlooked in his Los Angeles lecture.

[The author holds a PhD in Modern History from Jawaharlal Nehru University, New Delhi. His research focuses on minority rights and social justice. Email: debatingissues@gmail.com]

Related:

Vivekananda: Monk who highlighted Humanism of Hinduism

Redefining Indian Tradition Minus Christianity & Islam is Intellectual Dishonesty

The post How has Swami Vivekananda looked at Jesus Christ? appeared first on SabrangIndia.

Just a few days ago, I saw an interesting news item on my mobile phone. The Rashtriya Swayamsevak Sangh’s (RSS) top leader Mohan Bhagawat and his friends: Jaggi Vasudev, and Sri Sri Ravi Shankar, will address the nation to create hope in times of Corona dance of death. One does not know what networks they will use to do that? According to the news item, they will create an opinion of ‘positivity’ in an atmosphere of ‘negativity’. Obviously, the negativity refers to opposition to the RSS/BJP central Government all over the world and India. 

The news of these three great saintly men creating hope is being propagated by the RSS cadres. I wish they would have included all the Shankaracharyas of different pittas in the country. Of course, another Yogi–Adithyanath, who also heads a pitta, apart from the Uttar Pradesh Government where mass cremations are happening like a Kumbh, should have been part of the team.

The Prime Minister himself, who now looks like a saint not a ruler, will anyway address the nation from time to time. 

However, the declared team consists of a Saraswat Brahmin from Maharashtra, a Tamil Brahmin who mostly lives abroad and educated in English medium at St. Joseph college of Bengaluru. The third is a Dwija educated at Mysore university-that too in English literature with a chequered life and final guruhood of international institutional base. The Indian diaspora and native upper middle-class swings and waves as they speak but the vast masses of food producers do not know what their guruship is. It is this productive nation that needs hope. For the whole nation should get hope from the central Government not from saints and sanyasis. 

The RSS wants to use Ravi Shankar and Vasudev to add Hindu international networking. But the question is why this team did not find a Hindu Guru born in Shudra farmer family and a Dalit family. Is it because they are less Hindu, as they belong to the fourth varna and also no varna (Dalits are known as avarnas)? In the teaching of these three socio-spiritual leaders is there a single sentence that: ‘All Hindus Are Created Equal by Hindu God’. Is there a caste-free God they visualised for protection of all Hindus, leave alone Muslims, Christians and Sikhs of India?

Even assuming that they do not want to save the atheists and seculars, worldwide who were said to have worked for the advanced medical science, how many rural hospitals these gurus established in our poverty-stricken rural India? Ravi Shankar has a network in Geneva where there is a lot of oxygen to breathe in open air as well as in hospitals. But none in the Dandakaranya tribal belt where malnutrition is making their breathing more difficult than in any other part of the world. Why not that be his international base?  

Jaggi Vasudev has networks across the United States including the wealthiest California state, but none in the Koraput tribal belt of Orissa. They learnt English in a manner that every English-speaking Asian, American, European, Australian would understand. But they never learnt a single tribal language of India. Their divinity flows in sweet English to promote ‘Hindu, Hindi, Hindustani’ and the RSS loves this nationalism.    

Whom are they teaching their methods of pranayama (Isha foundation specialization)? Ravi Shankar is supposed to be an expert on rhythmic breathing. India is now dying without pranavayu, and no breathing–leave alone rhythmic. What scientific advancement they achieved and handed over to the nation? How many good hospitals that RSS and these foundations established to save the poor from lack of pranavayu in the villages and tribal areas? 

Even before this deadly disease attacked Indian people in villages and urban slums were dying for want of enough oxygen in the atmosphere. What did they do? Why do they go to teach the Americans and Europeans who have everything–enough pranavayu, prana padarthas to eat along with plenty of cars and planes to travel? Why Hindu God is sending these gurus there not to tribal areas or even to African countries where there is nothing to eat and hardly any energy to breathe? They go to the US and Europe to acquire dollars, Euros and Pounds. How is that nationalism loved by the RSS?      

In 1900, Ida Scudder reached the Vellore region to give life to lifeless and started a medical centre, which later became a trend setting hospital. What kind of guruship she initiated and what kind of guruship these Indian Dwijas established? The RSS leaders attack the Christian missionaries on an everyday basis. Did they establish a single hospital in the country that could match the Christian Medical College Hospital in their long life of 95 years? Did they ever look at what that hospital has done to the nation in subsequent years? That was the first hospital that started open heart surgeries in the 1960s itself, when no other hospital in India knew that science. Did any Hindu Pitta, or Foundation or organisation including the RSS did such constructive humanitarian work? Why accuse such Christians as anti-national? 

The RSS and the gurus like Jaggi Vasudev, Ravi Shankar, who work around them as great Hindu nationalists must know the caste culture is causing more harm than corona to the spiritual will of the nation. Why are they so silent about it? In Uttar Pradesh where a Yogi rules, dead bodies are being discriminated against. Which culture is responsible for that? Where is a call from these gurus to not to do that?    

Most organised religions in the world with strong notion monolith of faith are Hinduism and Islam, though they differ in caste cultural practices. In Hinduism these saints are in control and in Islam the Mullahs are in control. Why could vaccine science not develop in countries of those nations where they play a dominant role? Why does the secular world produce more vaccines and life-saving drugs? Why India of these pranavayu giving gurus begging for oxygen from secular nations? Why did the ‘Art of Living Foundation’, which is said to be a great teacher of breathing exercise, establish a vaccine producing industry and also an oxygen production centre? Do these gugus want to tell us those who breathed according to their methods are not attacked by Corona? We assume that Mohan Bhagwat follows them with a discipline of RSS but was attacked by Corona and treated in a modern medical system developed in Europe and America, not in the Art of Living breathing.   

What kind of nationalism in Ravi Shankar and Vasudev the RSS found who established the Art of Living and art of pranayama in America and Europe but not in Indian Tribal Areas? Should Hindu nationalism be taught from California and Geneva to the farmers who are producing food for all Indian to survive and the safai sainiks who are cleaning the roads in the times of this deadly disease? 

The RSS leaders must know that the nation is watching them when they are in the driving seat of the national power. There is enough intellectual base among the productive masses that can see through these English-speaking gurus, what they speak and do in their typical saintly attire here, and what they speak and do in America and Europe? The farmers, workers, shepherds, artisans and so on are already on ‘hope production’ jobs. They do not have to listen to these gurus to protect themselves from Corona. They are on the job of killing coronavirus in the fields by producing protein and raw material for medicines.

*Views expressed are the author’s own.

(Kancha Ilaiah Shepherd is a political theorist and social activist. His latest book is The Shudras–Vision for a New Parth co-edited with Karthik Raja Karuppusamy)

Other articles by Kancha Ilaiah Shepherd:

Disease distancing, not social distancing during Covid-19

Babu and Bhasha: The Game may end with this

Remembering Usaa: The greatest revolutionary barber after Upali

The post A team that never was a hope provider for the poor appeared first on SabrangIndia.

On October 13, former Supreme Court Judge Madan B. Lokur warned against the growing culture of crushing dissent in India. Justice Lokur, who is an eminent jurist and constitutional authority, was delivering the 2020 B.G. Verghese Memorial Lecture where he addressed the “gradual erosion of one of our most precious fundamental rights – the inalienable right to freedom of speech and expression, an erosion that is leading to the gradual destruction of our human right to dissent and protest.”

He said, “This lethal cocktail is adversely impacting the liberty of all those who dare to speak up. Article 21 of our Constitution, the right to life and personal liberty is under a silent threat and we all know the consequence of losing our liberty – simply put, we will cease to be a democratic republic.”

Justice Lokur minced no words as he addressed the present political climate saying, “Our freedom of speech is being eroded and mauled through twisting and turning the law if not abusing it altogether. The law needs to be objectively interpreted but subjective satisfaction has taken over and the consequences are unpalatable:  dissent or expression of a different point of view has become an issue to the extent that bona fide speech sometimes becomes a security threat.”

He added, “Some cynics glibly suggest that if the speaker is not guilty, he or she will be acquitted of the charges framed, but the fact of the matter is that detention as an under-trial is a gut-wrenching experience for anyone and particularly for a person whose cries of innocence fall on deaf ears. Such a person looks to the judiciary for protecting his or her freedom of speech and liberty but gets overwhelmed by the painfully slow justice delivery system.”

Strongly arguing that “one of the worst forms of curtailment of the freedom of speech is charging a person with sedition,” Justice Lokur stressed that the Supreme Court had laid down the sedition law clearly and cogently as early as 1962 in the Kedar Nath Singh vs. State of Bihar, yet the authorities have found various ways of ‘weaponising’ the sedition laws.”

Justice Lokur also “catalogued new methods of silencing speech”. These methods include attributing to a speaker something he or she never said and then to institute punitive proceedings against the person on the basis of this cooked up “speech.” Referring to the case of the preventive detention of Dr. Kafeel Khan, Justice Lokur regretted that “almost every procedure known to law was violated” by the detaining authorities.

Again, referring to the arrest of Ms Devangana Kalia on May 25, 2020 and the subsequent relief granted to her by the Delhi High Court, Justice Lokur was constrained to draw “a frightening inference” that any citizen “can be arrested on the basis of a fairy-tale and will have to go through a long- drawn process for being set free.”

Justice Lokur noted the use, perhaps for the first time, of Section 144 of the Cr. P.C. to keep the media out of the Hathras gang-rape area and concluded that “this is nothing but an egregious violation of the freedom of the Press through a bizarre abuse of law.”

Similarly, according to Justice Lokur, the frequent internet shutdowns through “blanket orders under the guise of preventing breach of peace” were highly disproportionate responses. 

The entire text of Justice Lokur’s speech may be read here: 

Besides the B.G.Verghese Memorial Lecture, the Media Foundation also presented the 2019 Chameli Devi Jain Award for an Outstanding Woman Journalist. This year, the award was shared by Ms Arfa Khanum Sherwani of The Wire and Ms Rohini Mohan, a Bengaluru-based independent journalist. Ms. Rukmini S., an independent data-journalist from Chennai received an Honorable Mention.                                     

Related:

The era of the SC’s glorious jurisprudence has vanished: Justice AP Shah

The post Erosion of Right to Free Speech leading to destruction of Right to Dissent: Justice Madan Lokur appeared first on SabrangIndia.

 

 
The centrality of post-colonial Indian State
Writing on the nature of the modern Indian State, SudiptaKaviraj, a political scientist, states that an institution that was traditionally understood as limited to basic furniture of our society has  come to be transformed into a ‘central moral force’. Perhaps the expression “constitutional morality “in our judicial decision making is coming from there and in any event “morality” finds  a place in A 25 of the Constitution of India. He goes on to describe how exactly the state has acquired this central importance.
 
‘It is implicitly invoked in every demand for justice, equality, dignity, and assistance- because all such demands can be made only in its name; and it is the state’s responsibility to meet all these expectations.’1
 
State and Constitution
One must, however, distinguish between the State and the Constitution and understand that the State is a creature of the Constitution. Another thing to which I wish to point attention is that it has always amazed me that there is no definition of “government” in the constitution. This came
home to me when I was arguing the case of Government of NCTD versus Union of India in the Supreme Court of India. The Constitution does however describe States in Schedule 1 and “Union ‘ in article 1 when it says
 
“India that is Bharat shall be a Union of states”.
Note however that this definition is a territorial one in that it describes territorial units and does not actually use the word “State” in the manner mentioned above. What Article 1 does do is to explain that India is a Federation. The Supreme Court however In my opinion does not quite tell
us what is federalism in the Indian Context. It is sometimes described as quasi-federal, sometimes as federal state with a strong center and more recently we talk about “cooperative Federalism”. All these expressions have loose meaning in the context of a one party state that we have moved towards. Take a look at the map of India on social media – India is orange!
Hence we have a host of confusing expressions: “State” “Government” and “Union”; the only unambiguous expression being “ Constitution”. The question that we must ask is- Could the modern state be anything else but all-encompassing in nature?
 
The answer to this and other similar questions lies in the experiences of American Independence movement as compared to various independence movements in the global South. In the global south, independence struggles, especially in India, have come to acquire central importance as a matter of choice. Such movements across the global south have not only faced an external enemy in the form of a colonial power but rather, at the same time, they have also fought internal enemies, of much bigger proportions, in the form of extreme poverty, socio-economic inequality, hierarchies of Caste, Race, Gender and much more.
 
A state that actively takes up the task of eradicating internal inequalities has been of primary consideration for the constitution framers. In achieving this, the constitution has also been the tool with which we the People have fought these internal enemies. Writing on India’s
constitutional moment, several scholars have expressed a similar sentiment. Uday Mehta Writes:
 
‘When one considers, for example, the Directive Principles of the Constitution or the ‘strivings’ of the state, they include a fulsome engagement with matters of health, education, individual and communal safety, equality, and prosperity. This constitutionally enshrined vision of the future is what has often been seen as implying an activist and capacious state, responsible for creating conditions for the exercising of freedom’2
 
Origins of Transformative Constitutionalism
The origin of transformative constitutionalism is traced to post – apartheid South Africa. A former Chief Justice of South Africa traces the core of transformative constitutionalism to the preamble of the Interim Constitution of South Africa which reads:
 
“A historic bridge between the past of a deeply divided society
characterized by strife, conflict, untold suffering and injustice, and a future
founded on the recognition of human rights, democracy and peaceful co-
existence and development opportunities for all South Africans, irrespective
of colour, race, class, belief or sex“.
 
While Transformative Constitutionalism, with regard to its meaning, continues to draw debates in the face of different experiences across the world, key elements that define or differentiate Transformative Constitutionalism are the central role of the State (Courts included) in
fulfilling the project of emancipation and constant development of the Constitutional ideals of Liberty, equality and fraternity. It is these principles on which the society must sustain itself and the state must play an active role in constituting a society based on those principles. In
India the principle proponent of this view in the judiciary has been justice Krishna Iyer, a judge who has had an abiding influence on my own work. Reflecting on the need to interpret the constitution as a transformative document, he remarked that
 
“The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labor, the hungry, hard-working half-slave, whose liberation
was integral to our independence. To interpret the Constitution rightly we must understand the people for whom it is made — the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the
principled solution of social disabilities.3”
 
DrAmbedkar, emphasizing these principles remarked that:
‘We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.
 
What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life.’4
 
The Constitution has been interpreted as a radical document that seeks to reconstitute society, while being mindful that the old hierarchies cannot be wished away. The duty of ensuring that transition is placed on a state that truly imbibes the transformative character and pursues it
relentlessly.
 
Therefore, two key aspects of the term transformative constitutionalism emerge:
 
1. It envisages attainment of substantial equality by recognizing and eliminating all forms of discrimination as they may have existed or may develop in the future;
 
2. It calls for a realization of full human potential within positive social relationships – The use of the term ‘positive social relationships’ instead of limiting it to an individual’s interactions with the state is indicative of the pervasive nature of transformative constitutionalism in the private sphere as well.
 
Differentiating this understanding of Transformative Constitutionalism from Constitutionalism, Michaela Hailbronner invites us to think of what transformative constitutionalism is not. Citing US Constitutionalism as not transformative constitutionalism, he contends that
 
‘U.S. constitutionalism does not entrust the federal state with the task of bringing about a more just and equal society. Its conception of law is “reactive,” to borrow from MirjanDamaska, and its constitutionalism4
 
Last speech while handing over the Constitution drs
represents, in Somek’s useful terms, “Constitutionalism 1.0” with its emphasis on liberty’5
 
Therefore, US constitutional experience is often understood as different from the project of transformative constitutionalism as envisaged by the global south, in which states play an activist role. This is because of the highly divisive hierarchies and acute lack of resources persisting in
countries like India and South Africa that the constitution sought to outrun. They also prevented us from developing any notion of a nation in the first place, as Doctor Ambedkar contended, since the distinctions based on caste belied any existence of fraternity, and hence a nation.
India’s constitutional moment was said to be a shift away from old practices and hierarchies. More recently and over seventy years since the Constitution came into force, the full court of the Rajasthan High Court has resolved that advocates ought not to address Judges as “ My Lord”,
given the mandate of Article 146. The Court led by the Chief Justice Ravidra Bhatt has given us a classic example of what transformation from colonialism to Republicanism could mean, even if it be in language; language after all is the most powerful tool of transformation. As I said in my open letter to the Chief Justice of India-
 
“Language is more than a mere communication tool. It is an intuitive social, cultural and political indicator, which reflects prevailing attitudes and ethos of any society.”
 
5 Michaela Hailbronner, Transformative Constitutionalism: Not only in the global south, The American Journal of Comparative Law Volume 65, 2017, Pg 527-565:
 
6 Article 14- Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth This was when the Attorney General referred to me as someone else’s wife. To be fair to him, he followed this with a correction and as Justice KrishanIyer once said “we must ‘bring up our judges” and I may add,
our male colleagues at the Bar.
 
Transformations happen in these small ways on a day to day basis when we refuse to let a small injustice happen
to us. A decolonialization of the legal profession and of our laws is yet to take place. Indeed this was my own motivation in some small way to question the very institution of Senior Counsel (the equivalent of Queens counsel) and my motivation for shedding the Senior gown on 15th August 2017, Independence day. Since that day I have not worn a Senior gown despite my peers urging and they tell me “you have succeeded in that case so take back your senior gown .. “I don’t know what success means. As far as I can see, that was my Rosa Parks moment – it came to me unasked for, refusing to wear the Senior Gown. You the students at NLSU have had your own transformative moment inviting me, with full knowledge of the fact that an FIR has been registered against Lawyers Collective Anand Grover and me and our premises have been “raided” – a word that finds no place in the CrPC. I cannot resist telling you that on the day of the “raid”, Anand Grover was in court Number 4 in the Supreme Court of India arguing his partheard matter. He told the CBI officers ” I have never let down a client and asked for an adjournment and I will not do it today “ It was a defining and a testing moment for us to be out there despite knowing that we were being targeted for being human rights defenders.
This loose usage of language poses a threat to our liberties and transformative constitutionalism.
 
Towards Substantive Freedom
If the state assumes an active role in ensuring liberty, equality, freedom and other ideals enshrined, the next question that arises naturally is with regard to the content of these ideals. What are the limits to which the state should pursue these ideals and enable people to achieve these ideals? An understanding of transformative constitutionalism demands that the state actively pursue these goals and remove all barriers to enjoyment of such ideals. It is, perhaps, in this light that Amartya Sen talked about “Development as freedom” and his Capability approach.
Sen, in his book, ‘Development as Freedom’ alludes to the notion of substantive equality when he talks about the tyranny of unfreedoms which restricts growth and development of an individual. These unfreedoms that he refers to include: systematic social depravation, neglect of public facilities, intolerance, or over activity of repressive states. He argues that the denial of these substantial freedoms are sometimes related to economic poverty, which robs people of the freedom to satisfy or to be adequately clothed, obtain remedies for treatable illnesses, etc.
Continuing the same argument, Martha Nussbum and Sen conceptualize the capabilities approach better addressed the idea of well – being. When evaluating well-being, Nussbum and Sen argue, the most important thing is to consider what people are actually able to be and do. The commodities or wealth people have or their mental reactions (utility) are an inappropriate focus because they provide only limited or indirect information about how well a life is going.
 
Transformative Constitutionalism and the Judiciary
The jurisprudence around the constitutional ideals of equality, liberty, and fraternity began developing after the emergency. Recovering from the defeat of the Congress Government in the post-emergency period, the Supreme Court, in search of legitimacy, articulated the jurisprudence of Public Interest Litigation.
 
Justice Bhagwati declared that the adversarial system of the commonwealth was unsuited to Indian conditions, it was based on “selfi dentification of injury and self-selection of remedy”. Given the vast illiteracy of the people, this would not ensure access to justice I have elsewhere pointed out that it is no accident that one of the pioneers of the PIL as articulated in S P Gupta, Justice Bhagwati was also one of the authors of the ADM Jabalbur judgment. This limitation which is at the origin of PIL must be remembered as a major limitation on PIL’s itself. More recently it is very clear that PIL can be an instrument of oppression perhaps more deadly than any other since it is so heavily dependent on the “discretion” of judges.
 
And that brings me to the point out that rule of ‘discretion’ is contrary to the rule of law in that it introduces the rule of predominantly men and occasionally women. I am aware that no law can be implemented; no executive authority can function without “discretion” as a legal concept
in decision making. But India lacks a theory of
 
“abuse of process” making it possible for decision to degenerate to favoritism; face law and not case law and targeting of dissenters, under cover of law. This must be remedied forthwith. Power cannot be used for a
colleterial purpose in the name of “discretion”. India lacks a theory of responsibility for wrongdoing. India lacks command responsibility for wrongdoing . What has in fair measure, is impurity for decision makers.
 
 
No economic and social rights without civil and political rights
We at the lawyers Collective too thought when we argued the Olga Tellis case and the Bombay Hawkers Union cases that economic rights is what we need to work on – it was a magic wand that would remove poverty. I have since then realized that my generation took its civil and political
liberties for granted. We were Midnight’s Children and we inherited civil and political liberties. Life has come full-circle. Freedom and independence can no longer be taken for granted, leaving us free to work on economic rights. For many including me and Anand Grover, for
cartoonists and poets, students, dalits and farmers, for the accused in the BhimaKoregao case, the fight for liberty has just begun all over again.
 
Battling to maintain its legitimacy in the eyes of the public, in the years following the emergency, the judiciary has now reached an ambivalent space, still opening the doors to PIL when it wishes to, and closing then tight when it wishes to.
 
It is also not surprising that it was during this phase that the Affirmative Action policies came into picture through the Mandal Commission. Based on the idea of achieving Substantive equality, and subject to wide ranging debates, reservations in educational institutes, and now in
Promotions also, as approved by the Supreme Court in BK Pavitra II have been single handedly responsible for ensuring whatever little diversity in different walks of life we see today. Highlighting this importance of reservations, Justice Chandrachud in BK Pavitra remarked that:
 
“There is substantial evidence that the members of the Constituent Assembly recognized that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.”
 
LGBTQI movement and the demand for Privacy
In recent times, the jurisprudence around transformative constitutionalism has developed strongly, especially in relation to the rights of the LGBTQI communities, through a series of judgments. In what has to be considered one of the most celebrated judgments that has been delivered by the Supreme Court in recent times, in Navtej Johar v. Union of India, the court held that ‘Transformative Constitutionalism’ is considered to be one of the objectives of adopting a constitution itself.
 
The purpose of it is to have a Constitution which guides the nation of transforming itself from a medieval and hierarchical society to an egalitarian democracy to embrace the ideals enshrined in the Preamble to the Constitution. It was held that as a constitutional court whose job is to protect its people from humiliation and discrimination, it cannot provide a static interpretation to the rights of liberty and equality and remain a mute spectator to the struggle for the realization and attainment of rights. Highlighting what lays at the core of transformative constitutionalism, Justice Dipak Misra remarks:
 
“The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of “liberty” and “equality” and it would be against the principles of our Constitution to give them a static interpretation without recognizing their transformative and evolving nature. The argument does not lie in the fact that the concepts underlying these rights change with the changing times but the changing times illustrate and illuminate the concepts underlying the said rights.”
 
I believe that every generation has the right to decide for themselves what the Constitution means for them, to interpret the Constitution after their own aspirations. Let us not however forget that the battle to decriminalize Section 377 was started 20 years before the Navtej’scase, by the Naz Foundation, supported by the Lawyers Collective and found its own in a judgment of the Delhi HC in Naz Foundation, reversed in Koushal most shamefully. Navtejis a reaffirmation of Naz. The judgment of the Supreme Court in NavtejJoharwas preceded by the judgment in Justice K.S. Puttuswamyv. Union of India. This judgment was instrumental in holding the right of privacy as a fundamental right under Part – III of the Constitution. While the specific contours of privacy
yet remain to be tested in specific factual scenarios, the judgment has set the ball rolling to initiate discourse rights that flow from the right to privacy such as the right to be forgotten, which will have significant impact on the functioning of the criminal justice system.
 
The Fight for Gender Justice
While the slew of judgments in Puttuswamy, Nalsar, ShafinJahan and NavtejJohar have reflected the progressive elements in the judiciary, the larger picture has no doubt been rather grim. The relief provided has been limited, and courts have largely shied away from taking any firm stand against the government of the day. Nothing epitomizes this limitation of the judiciary more than its
judgments in several cases relating to rights of women, starting from 1950’s to the recent cases of Sabrimalaand Triple Talak. Though the latter two do have a progressive impact, what is being suggested is that the reasoning could be more rigorous and transformative. The judgments of the Supreme Court starting from the case of Narasu Appuhave continuously ignored the question of gender equality on the pretext that personal law is not law within the meaning of Article 13 of the Constitution. The ghost of NarsuAppustalks the SC to this day and mainly on the rights of women. This stand of the court was later challenged in the cases of Mary Roy, Gita Hariharan, Shah Bano, Goolrookh, Sabrimala, and the Triple Talakbut the court dodged the question. Religion remains the last frontier that woman have to cross to attain equality.
 
It was only in Sabrimalathat the court has sought to address the question in the affirmative, exorcising the ghost of NarasuApputo a certain extent. In a concurring judgment, Justice D Y Chandrachud held that preventing women from entering the temple amounted to another
form of untouchability. The majority ignored the argument. I have been much criticized for categorizing menstrual taboos as “untouchability”, on the ground that I was appropriating the struggles of Dalits! My question was: “Why not?” I acknowledge that Article 17 was inserted in the context of untouchability of the scheduled castes, but there are always new and emerging forms of untouchability. I have witnessed this form of untouchability in my own family and memoirs of childhood leave a lasting impact on us in adulthood.
 
Goolrookh presents a frightening picture. The question revolves around whether a woman acquires the religion of husband on marriage, as held by the Gujarat High Court. The SC is yet to answer the question. A rather shocking proposition that a woman acquires the religion of her
husband on marriage has been upheld by the Gujarat High Court. Thus a woman has the religion of her father on birth and of her husband on marriage!
 
Also, as was shown in the recent Triple Talakcase, the Supreme Court came up with divided opinions as to why the practice of Triple Talak must be stopped. While it was held by two judges that the practice was manifestly arbitrary and unconstitutional, other Judges said it was unislamic
None of the judges said it was violation of Article 15 or 21. The court relied on the doctrine of “essential practices,” continuing the legitimacy of laws which are at the source of this discrimination. Thus, whenever the question of equal rights for women has come forward, the approach of the courts has been disappointing.
 
Interpersonal relationships
The ShafinJahancase is an illustration of transforming interpersonal relationships. Arguments in this case however ranged from questioning if Hadiya, a 24 year old Hindu woman had been brainwashed, programmed, or indoctrinated to convert to Islam and marry a Muslim man. The work of the RSS was on view in full force in protesting the marriage of a Hindu woman to a Muslim man. However, Hadiya stood in the Supreme Court, before the then Chief Justice, DipakMisra and Justices Chandrachud and Khanwilkar when the court directed that they
want to interact with her. Upon being questioned,
 
“Her crystal clear voice rang through the court room, “I want my freedom.” Did the court have any
choice at that point? No. when asked if she wanted to continue her education, she said “I want my faith and my education”. Then when it was clear that she would be sent to the college hostel she said, “I want to be
able to talk to my husband when I need to discuss anything, I want his companionship”
 
This fight for gender justice, perhaps is the story of failure of transformative constitutionalism in India.
 
A Problem from Hell
Sexual harassment at the workplace remains, “a problem from Hell” especially for women in the judicial system and now for human rights defenders as well, as they are just “collateral damage”. Once again, the impunity from legal process that judges enjoy has made it impossible to bring judges who sexually harass, to justice. I must have the singular distinction in this country of having represented woman interns, women judges, and women employees against the judges who they allegedly sexually harassed them. In one such case of a sitting High Court Judge
was impeached unsuccessfully, I had occasion to cross examine three sitting judges of the High Court in that case. As a consequence, I lost respect for the system as a whole. One of the Judges I cross examined, for this role in transferring the woman judge following the harassment,
and whose order to transfer was held to be illegal and irregular went on to become the Chief Justice of a High Court and was seriously being considered for being appointed to the Supreme Court. We now acknowledge that the “Me Too” movement has yielded no concrete results
for women in India. The Problem from Hell, a title which Samantha Power used in relation to the Holocaust, continues to plague us.
 
Tushar Gandhi takes the issue of Mob Lynching to court.
The facts and statistics are too well known to repeat here in the limited time I have on hand All I wish to say it that mob lynching is not a “ law and order “ issue but an issue of targeting on communal grounds and is thus a Constitutional and Federal issue, for which the Central
government must take responsibility.
 
Vinod Jose, executive editor of The Caravan, at a recent global conference on media freedom organized by governments of UK and Canada, remarked on these incidents:
 
“Such acts of violence were not spontaneous, but came out of a hatred and intolerance of religious minorities systematically cultivated over a long period of time.”
 
Mr. Vinod Jose was intimidated and discredited for voicing his dissent against the current regime.
 
The Attack on Students
Last five years have also witnessed a significant attack on students from different universities. Some of the biggest victims of these attacks have been RohitVemula, Najeeb, Kanhaiya Kumar, Umar Khalid, and Payal – who stood at the intersection of cast and gender and more. The
emergence of a new curse word “anti-national “ is intriguing. I have elsewhere pointed out in the context of the attack on Kanhiaya Kumar that there is no such crime in the Indian Penal Code that there is no such crime as “urban naxals’ in the context of the BhimaKoregaon
accused in the Indian Penal code, and yet more and more of us are being described as “urban naxals” and “anti-nationals”.
 
The Dilution of SC/ST Act
The recent judgment of the Supreme Court in the case of Subhash Mahajan was criticized heavily for diluting the law in favour of the SC and ST community. What was most frightening about the judgment was the fact that the Court based its judgment on the assumption that the SC ST community were “misusing” the Act – in other words, lying about their oppression .
We are all, each of us, women, SC ST, Students, minorities, and finally human rights defenders lying before the law! Who then speaks for the truth?
 
The Attack on Human Rights Defenders, the legal profession, front line defenders
In this long series of attacks, the recent targets have been the human rights defenders – lawyers who have sought to protect the values of constitution. Imagine what would happen if there were no human rights lawyers in the Country. Fortunately there are many. But an attack on lawyers is really an attack on the right to legal defense. When we talk of the independence of the judiciary we must understand that it includes the independence of the legal profession. When the judiciary sanctions attack on the legal progression , it is basically feeding upon itself . At the receiving end of this attack, among others, has been Lawyers Collective, Me, Indira Jaising, and Mr. Grover who have been victimized for taking up sensitive cases and speaking up against influential figures. Before them have come lawyers like Suredra Gadling, Sudha Bharadwaj, and  Teesta Setalvad for her defence of the victims of 2002 Gujrat. CBI raids have been ordered against the Lawyers Collective and its officer bearers on false allegations of “undermining democracy” by using FCRA funds. The way these events have transpired leave no doubts about the political
motivations behind this targeting. While defending the then Police Commissioner of West Bengal I pointed out in Court , “There is one way to get immunity form prosecution in this country, join the ruling establishment”. Do I need to say more?
 
Conclusion
Life has come full circle for me. As I said I am one of midnight’s children, I took liberty, freedom and independence for granted. I inherited it. We at the Lawyers Collective thought the battle was only for economic justice and worked in that direction. Today, I realize, my freedom was an illusion. It was foolish to thing that our rights could be guaranteed. Poverty cannot be eradicated by surrendering the right to free speech, is the devils bargain. Free speech is a necessary pre-condition for the liberation from “undeserved want.” I have lived too long perhaps. I have seen the court as a liberator. I have also seen the Courts as an oppressor. Students of Constitutional law must know that in any Petition filed under Article 32, a  fundamental right must be stated to have been violated. There is no such mention in the Petition against us an indeed there can be none. What is more, we have been accused of undermining democracy. The petition states
 
“It is submitted that the activities of respondent no 1 while being the Government servant clearly amounted to, directly or indirectly, affect or influence electoral politics, decision making process by public servants/
bureaucrats, interference with administration of justice through lobbying and media advocacy….”7
 
I did not know whether to laugh or cry when I read this. We, Lawyers Collective, have influenced electoral politics and interfered with the administration of justice? No! If we did try as alleged, indeed we must have failed miserably, as the world can now see. Transformative Constitution for us at the Lawyers Collective now means personal liberty. The right to free speech is now an endangered species of rights.
 
On behalf of the Lawyers Collective, I thank you for doing us this honor of inviting to deliver an inaugural address today on Transformative Constitutionalism, despite knowing that the CBI has registered a case against us. Life has changed. I no longer travel alone, I am surrounded by lawyers who volunteer to travel with me. That is my success and my contribution to the legal profession. Jai Hind, long live freedom In appreciation of Professor SarasuEstha Thomas, Head Center for Women and Law NLS and to the students she monitors everyday each day.
 
Indira Jaising,
Secretary, Lawyers Collective
 
1 SudiptaKaviraj, On the enchantment of State: Indian Thought on the Role of the State in the
Narrative of the Constitution
2 Uday S. Mehta, Constitutionalism, The Oxford Companion to Politics in India 2010, Pg 15-27
3 AkhilBharatiyaSoshitKaramchariSangh (Railway) v. Union of India, (1981) 1 SCC 246 : 1981 SCC (L&S) 50 at page264
 
 

The post Transformative Constitutionalism- A post-colonial experiment appeared first on SabrangIndia.

He was invited to deliver a lecture on: two years of #BRDoxygenTragedy – continued victimization of Dr kafeel Khan by Uttar Pradesh government and to launch the West -Bengal chapter of ‘Health for All campaign’. 

Dr. Kafeel told the audience that the children in the BRD Hospital died as a result of stoppage of supply of liquid oxygen due to non-payment of dues to vendor by the Government. And in order to hide the inefficiency of the government, he was made a scape goat.

The Allahabad High Court categorically stated that there is no evidence of medical negligence against him and that he was not involved with oxygen tender. In reply to a RTI, the government also accepted that there was shortage of liquid oxygen for 54 hours in BRD medical College on 10^th, 11^th and 12^th of August 2017. And Dr Kafeel Khan indeed arranged jumbo oxygen cylinders to save the dying children.

The UP High court in its judgment on 30th April 2018 observed that there was shortage of liquid oxygen due to abrupt disruption of liquid oxygen supply due to non-payment of dues to the supplier.

He said that “the real culprits of #BRDOXYGENTRAGEDY massacre are those who received letters of dues from suppliers and their action should be thoroughly investigated to know the real facts and they should be removed from their post until pending enquiry including our Health ministers.”

“I demand CBI enquiry of BRD Oxygen tragedy and to move the case outside Uttar-Pradesh as those responsible for the massacre are still at helm and are heading the enquiry”.

Expressing his sympathy to the parents who lost their innocent children and are still awaiting justice, he said the government should apologize to them and also give compensation.

He shared the hard times he faced after his suspension and imprisonment which took a toll on him both emotionally and physically. He also spoke about the horrifying experience when an attempt was made on the life of his brother who was shot and the insensitive attitude of the UP police who tried their best to delay the emergency operation to remove the bullets by many hours.

The Hon’ble High Court in its order dated 07/03/19 has ordered the UP government to finish the enquiry within 90 days that is by 7th June 2019 and  the Hon’ble Supreme Court in his order dated 10/05/19 has ordered the UP government to pay all his suspension allowances dues of approximately 16 lacks

Dr. Khan said that his main concern is that government sponsored victimization of his family is still continued while he is struggling to survive, running from pillar to post for over 2 years now despite the orders of both the High Court and Supreme court. The Uttar Pradesh Government is neither paying his dues nor revoking his suspension subjecting him to a life of turmoil on a day to day basis.

He demanded that the CBI should investigate the matter and rule out any complicity of state officials.

Inaugurating the Kolkata chapter of ‘Health for all campaign’ he said the entire Indian health care system needs an overhaul. According to the Global Hunger Index, India ranks 103 out of 119 and 145 out of 195 in terms of quality and accessibility of healthcare as per the Lancet study.
The specific problems he pointed out are: 50% children are malnourished and 62% are immunized; 8, 02,000 infant deaths were reported in India in 2017 (UN reports);

4 lakh people died of tuberculosis while India has the third-largest number of people living with HIV in the world; there are 1.5 lakh vacancies in health services with one primary healthcare Centre (often manned by one doctor) for more than 51,000 population.

Some of the possible solutions to improve the health care system as per Dr. Kafeel Khan are:
 

1. Access to good quality health care services without anyone having to face financial hardship–for all at all ages irrespective of  caste/religion/region/gender/disability/ economic status.
2. Government should provide health services that are affordable, adequate, new & acceptable for its citizens-free consultation/drugs/diagnostics and free emergency care services in all public hospitals.
3. Increase in public health expenditure to 3% of the GDP.
4. Increase the budget allocated for health services Rs 1.5 Lakhs Cr/every year for the next 5 years.
5. Fill all the 1.5 Lakhs existing vacancies and create new jobs every year.
6. Regularize National Health Mission employees, Equal pay for equal work, social security for them.
7. ASHA workers to get 20000 per month and Aganwadi workers to get 15000 per month minimum salary.
8. Cut GST rate to 5% from the current 18 per cent on health insurance premium.
9. GST exemption for OPD Products and drugs for serious ailments such as cancer and diabetes.
10. Reduce GST rate to 5% from the current 18 per cent on medical technology solutions.

The event was attended by the media and health activists in Kolkata.

Courtesy: Two Circle

The post Dr. Kafeel Khan draws attention to the shortcomings in the health sector in his lecture at Kolkata appeared first on SabrangIndia.