There is a concerted effort to change the basic secular character of the Indian Constitution: Justice PB Sawant, former SC Judge



Justice Sawant in conversation with Teesta Setalvad for Communalism Combat and Hille Le tv.

November 10, 2014

English Transcript

Teesta Setalvad:
              Justice Sawant, thank you so much for being with us on this show. We thought today we must discuss critical issues which face the Indian Judiciary, but before that a very important question on the fundamental basic tenets of the constitution. There is an all out attempt today to discredit the word secular and to discredit the word secularism. You were one of the eminent bench of judges of the supreme court that upheld secularism as being a basic tenet of the Indian Constitution. Can you just explain that?


Justice Sawant:                 In fact the basic structure consists of the preamble of the constitution, the fundamental rights and the directive principles rights, and in the preamble itself the word secularism has been inserted deliberately by the constitutional amendment made in 1977. Therefore there was no question of our emphasizing it. It was already there, we had only to bring it to the notice of the government and the people.


Teesta Setalvad:              Why do you think that the word secular and the secularism is under attack?


Justice Sawant:                 It appears that it is under attack only from a section of the population. And unfortunately this section happens to be a part of the Hindu society. Nobody else that means no other religious groups have been contesting it. It appears that India being dominantly a Hindu society, about 82% of the population is Hindu, some fundamentalists, I mean religious fundamentalist, want this country to be theocratic. And if it is to be theocratic they want it to be a Hindu religion society. And in this connection they always point out the instance of Pakistan which is also a theocratic society. So therefore they want this country to be a theocratic state and all other religious bodies and communities to be secondary citizens. So give primacy to the majority and the rest will be only subordinate to the majority.


Teesta Setalvad:              Do you think the fundamental change to our republic can easily happen or do you think there will be a strong contestation?


Justice Sawant:                 There will be a strong contestation because even among the Hindus the majority is against making this state a theocratic state. Unless an appeal on the basis of emotions for being a Hindu theocratic state gains ground on account of the vicious propaganda which is being carried on through the print as well as the electronic media  gains an upper hand.


Teesta Setalvad:              But as of now you think there will be a strong contestation?


Justice Sawant:                 There is bound to be a strong opposition to changing any word in the constitution today as far as secularism is concerned.


Teesta Setalvad:              Sir, recently we had that rather unpleasant incident of a Supreme Court Judge, sitting judge making a comment that if he were a dictator of this country he would like to ensure that the Geeta and the Mahabharat are taught from standard one onwards.


Justice Sawant:                 There are two things which he has stated. First of all he wants to be a dictator and dictatorship is an anathema to our constitution which is democratic, secondly he wants the impose Mahabharat on the entire country and what is Mahabharat? Does he want the ethical part of it to be imposed on the people, then it is welcome, but then, why only from Mahabharat? All religious books whether it is Quran, Bible or Granthsahib or Avesta. They are all teaching us ethical principles and that is what religion consists of. Then why have any particular religion or religious book, let us have ethical guidelines for all the sections of the society whether it is Hindu, Muslim, Christians or Parsi. So he should say, I would welcome a judge saying that if I were a dictator I will impose all ethical guidelines as principles for personal conduct as well as societal conduct. He should have said that, why refer to only one book? Many times you are a socialist, secularist, democrat only on the platform but what you are inside comes out occasionally and on casual occasions.


Teesta Setalvad:              What are the ideal qualities of a Judge, for a Judge?


Justice Sawant:                 I would suggest that first and foremost he must have an integrity of character, independence of mind, and courage to stick to the principles, to abide by the constitution. As far as the merits are concerned of course, he must know the law, the constitution and particularly the philosophy of the constitution. But if he is in anyway deficient in law, the feed comes from the lawyers from both sides, but you canít get a feed of integrity from lawyers in legal communities. So I would first and foremost give importance to the character of the individual. And I would suggest for that purpose that this commission before making recommendation should publish the name of the candidates.


Teesta Setalvad:              That they are proposing to appoint.


Justice Sawant:                 At least two months in advance, so that if there is any objection to his being appointed, from the public, the people can send their objections to the commission and they should consider it.


Teesta Setalvad:              But this provision is not there.


Justice Sawant:                 It will all depend upon the rules and regulations that the commission makes for the procedure that they are going to follow in appointment.


Teesta Setalvad:              So that possibility exists.


Justice Sawant:                 The possibility is there, we can also insist that they should do it and I think there will be no objections, that is only when they select they should publicise the names.


Teesta Setalvad:              Sir, your book The Grammar of Democracy has gone into three editions I think and its also been published in Hindi and Marathi. The entire effort in that book has been to see how democracy should be in our country, not just in our country but democracy as a concept so that electoral democracy which has now got captured by few interests should get a more broad base, wide base, and our institutions should get a greater sense of democracy. How would you sum up what you've written in that book?


Justice Sawant:                 I have a written that book to enlighten the people that what we have is not a substantive democracy but a formal and more particularly only electoral democracy. Even that electoral democracy is partial because at least 99.9% of our population cannot contest the election. They can only vote for the candidates. So we want an electoral system to be also pro-people. Today only the money backs can constitute or the muscle man that should go and unless therefore we ensure that everybody who wants to serve the people, who is honest, selfless and who wants to contest election should be in a position to contest the election as long as we do not ensure it we cannot say that we have a truly representative democracy. Secondly I have pointed out even today we have democratic rights. Unless the affairs of the country are governed by the wishes of the people. You cannot say you have a democratic government for that purpose therefore we must have a participation of the citizenry in day to day governance of the country.


Teesta Setalvad:              Day to day policy matters.


Justice Sawant:                 Exactly, day to day governance. And that can be ensured if people collectively exercise the democratic rights which are given. Those democratic rights are to express their opinion through public rallies, to make demonstrations.


Teesta Setalvad:              Right to protest, peaceful assembly


Justice Sawant:                 And to protest by non-violent means and come out with their charter of demands and require the executive to comply with that charter of demands. This rights is there with the people and they can of course exercise it only through collective efforts.


Teesta Setalvad:              So thank you Justice Sawant for being with us on this show and for eliminating on us so many critical questions, thank you very much.


Justice Sawant:                 Thank you.