An accurate statement on reservation must from Bhagwat ji

Early in my life in Sindh ( now in Pakistan) where I was born I had been pained at the sight of the Harijan woman who came to our house to clean up the lavatories and remove the human excreta on a bucket she carried on her head. I was appalled but beyond a temporary revulsion against this sinful practice I could do nothing to stop it. The dreadful injustice of the Indian society came back into my consciousness when as a practising lawyer I read the Mandal Report . One paragraph of it stuck for ever in my memory “The real triumph of the cast system lies not in upholding the supremacy of the Brahimin , but in conditioning the consciousness of the lower castes in accepting their inferior status in the ritual hierarchy as a part of the natural order of things.. It was through an elaborate, complex and subtle scheme of scripture, mythology and ritual that Brahminism succeeded in investing the caste system with a moral authority that has been seldom effectively challenged even by the most ardent social reformers.”

Little did I know that many years later I will be engaged as a counsel for two state governments ,Bihar and Tamil Nadu, to argue the Mandal case before a Nine Judge bench of the Supreme Court of India to uphold the legislation to enforce the Mandal proposals for the removal of this blot on the Hindu society . My contribution to the success of the Mandal proposal was gracefully acknowledged by the leading judgment particularly by Justice Jeewan Reddy. After referring to the galaxy of eminent counsels who fought for the Congress, BJP and others to oppose Mandal , he referred to my contribution in Para 749 of the judgment:-

“At the other end of the spectrum stands Sri Ram Jethmalani, counsel appearing for the State of Bihar supported by several other counsels. According to him, backward castes in Article 16(4) meant and means only the members of Shudra caste which is located between the three upper castes (Brahmins, Kshatriyas and Vaishyas) and the out-castes (Panchamas) referred to as Scheduled Castes. According to him...the expression "backward classes" does not refer to any current characteristic of a backward caste save and except paucity or inadequacies of representation in the apparatus of the Government. Poverty is not a necessary criterion of backwardness... ..the provision for reservation is really a programme of historical compensation. It is neither a measure of economic reform nor a poverty alleviation programme. The learned Counsel further submitted that it is for the State to determine who are the backward classes; it is not a matter for the court. The decision of the Government is not judicially reviewable. Even if reviewable, the scope of judicial review is extremely limited - to the only question whether the exercise of power is a fraud on the Constitution’’.

The Majority’s judgment is one of my proud forensic achievements.

The purpose of writing this is to correct and explain what my respected friend and RSS Cheif Shri. Mohan Bhagwat has publicly stated on this very serious issue on the eve of the historic elections which will take place in the next month in the state of Bihar my old clients.

Most newspapers have reported that he called for a social review of the reservation policy in an interview to mouth piece newspapers ‘ Organiser and Panchjanya.’ I am conscious that R.S.S has tried to downplay the Bhagwat Statement but it is time some outsider like me should make things clear even if it means I am contradicting publicly and clearly what my venerable friend has declared at a most inopportune and some what unfortunate timing. I write this with all my affection and respect for Bhagwat Ji. If he has been misreported let him say clearly and remove all doubts in the public mind about the necessity and veracity of his reported assertion.

Now to annul reservations for Scheduled Castes and Tribes and other Backward Classes requires a Constitutional Amendment. The BJP ruling party has been compelled to desist from inviting a vote on less important measure which the Modi government has urgently wanted because the move would have met with a disastrous rejection calling for the resignation of the Government. Why did Bhagwat ji expect a Constitutional Amendment to be passed when ordinary legislation could not go through? You cannot amend the Constitution by an Ordinance.

It is a reasonable inference that every citizen is entitled to draw that this was intended to be an election bribe to voters belonging to the higher castes for just this election. I am sure this will not even win the Patel votes because they are too intelligent to believe that the Government can make good this immoral and unconstitutional promise at anytime in the near future. Bhagwat Ji and others who share his views must honestly ask whether the Shudras, Harijans and OBCs for whose benefit the reservations have been put in place can be said to have completely got over their inability to compete on equal terms with other classes or the higher castes.

It is a pity that no serious effort has been made by the previous Congress government to create effective educational institutions to terminate the obstacles in the way of long suffering fellow citizens of ours to compete with higher caste candidates on terms of equality and merit alone.

Bhagwat Ji should have atleast made the claim that the intellectual and educational qualifications of these long standing sufferers have now achieved higher levels to make equal treatment a reality. No Mr. Bhagwat, this will be a myth.

And finally may I ask how you will guarantee that your BJP President Amit Shah will not turn round and mock the victims of this fraud : “ oh it was all an election Jumla ( Joke)’’. By the way Bhagwat Ji have you consulted the Finance Minster and the Attorney General whether they think of a Constitutional Amendment at this time even a conceivable possibility?

Why is Sustainable Population not part of the UN Sustainable Development Summit ?

A great event will be taking place at the United Nations Headquarters, New York, between September 25-27, 2015. More than 150 world leaders, including our Prime Minister, will be attending the UN Sustainable Development Summit, formally to adopt the new sustainable development agenda. This agenda serves as a template for action for all governments of the world for the next fifteen years, to promote prosperity and protect the planet for posterity.

The Sustainable Development Goals (SDGs) will replace the Millennium Development Goals which expire in 2015. International discussions regarding the SDGs have been ongoing since 2012 and hence resulted in the final document Transforming our world: the 2030 Agenda for Sustainable Development which will be adopted in the UN Sustainable Development Summit, a few days from now. These are based on a consensus of 193 countries on the following seventeen proposed goals:

1. End poverty in all its forms everywhere.

2. End hunger, achieve food security and improved nutrition and promote sustainable agriculture.

3. Ensure healthy lives and promote well-being for all at all ages.

4. Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all

5. Achieve gender equality and empower all women and girls.

6. Ensure availability and sustainable management of water and sanitation for all.

7. Ensure access to affordable, reliable, sustainable and modern energy for all.

8. Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all.

9. Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation.

10.Reduce inequality within and among countries.

11. Make cities and human settlements inclusive, safe, resilient and sustainable.

12. Ensure sustainable consumption and production patterns.

13. Take urgent action to combat climate change and its impacts.

14. Conserve and sustainably use the oceans, seas and marine resources for sustainable development.

15. Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss.

16. Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.

17. Strengthen the means of implementation and revitalize the global partnership for sustainable development.

These larger goals have been broken down to more specific targets, and will be incumbent upon governments to achieve them.

These universal sustainable development goals for the betterment of people across the globe and the good health of mother earth are badly needed, especially at a time when the mantra of greed and profit is destroying whole eco systems, whether on land, or on water, or in the skies. We have brought our planet to a sorry state with our greed and exploitation, and nature has started showing us the results of our deeds. Climate change and global warming have become a reality across the world, with weather and rainfall patterns changing drastically. Their disastrous long term effects have been recorded by scientists all over the world and are being gradually being validated by events all around us – rising temperatures, melting glaciers, rising sea levels, erratic rainfall, drought, to name a few. And the greatest sufferers of the ensuing shocks will of course be the poor and vulnerable, something that has already started.

But what I find missing notably in the list of sustainable goals is the goal for achieving sustainable levels of population growth, and I wonder why this, a seriously relevant goal was excluded. As far as India is concerned, we must understand that the most pernicious and potent cause of our poverty is our uncontrolled population growth, as it far exceeds our growth of capital and national wealth. This must be halted with all our national might. Nature’s bounty in not infinite, especially when we damage and deplete the earth by human abuse - unlimited pollution, filthy rivers, holes in our ozone layer, CO 2 emissions, melting ice caps, global warming resulting from our fetish for artificial warming and cooling.

But what I find missing notably in the list of sustainable goals is the goal for achieving sustainable levels of population growth, and I wonder why this, a seriously relevant goal was excluded. As far as India is concerned, we must understand that the most pernicious and potent cause of our poverty is our uncontrolled growth, as it exceeds our growth of capital and national wealth. This must be halted with all our national might. Nature’s bounty inn not infinite, especially when we damage and deplete the earth by human abuse-unlimited pollution , filthy rivers, holes in our ozone layers, CO2 emissions , melting ice caps , global warming resulting from our fetish for artificial warming and cooling.

Obscurantists and fanatics who refuse to see contemporary reality for population stabilization need to be educated that our country needs youth who are healthy in body and mind, and free in thought, and our population and economic policies must also reflect our genuine secularism. I hope our Ministries of Health, Human Resources, and Minorities will show harmony of thought and action, and bring out an enlightened rule of law that shall make the nation an enviable lesson and model for the entire comity of nations.

Thomas Malthus in his “An Essay on the Principle of Population.” Published in 1798 made a somewhat pessimistic prediction about the threat of poverty and the suffering that goes with it. He forcefully argued that development of mankind was severely limited by the pressure that population growth exerted on availability of food. It was his firm conviction that since food and passion between the sexes are both essential for human existence but the world’s population would increase at a faster rate than its food supply. Population grows at a geometric rate but the production of food only grows arithmetically.

The growth of poverty and social conflict are inevitable was his gloomy prediction. But the Industrial Revolution that soon followed in Europe falsified his prediction for quite some time. This new phenomenon produced a remarkable increase in productivity particularly generated by unlocking of energy contained in fossil fuels like coal and oil. Availability of energy increased six fold between 1820 and 1950, while population only doubled. Yes these changes have made us forget this Malthusian horror. Another sixty five years have gone bye and it is time to recall the Malthusian nightmare and think of mastering it again. Scholar James Martin in his fantastic book “The Meaning of the 21st century has this to tell us.” Some authorities have attempted to calculate how many people the Earth can support in the second half of this century. The number declines as the ecological footprint grows due to increasing consumption patterns. It also declines as global warming shrinks the farm production of marginal areas and increases the spread of deserts. Farm production is also lowered as aquifers run dry and huge amounts of water are diverted to the rapidly growing cities. Modellers attempt to calculate the future increases in grain prices. Today we have a fairly good understanding of the Earths control mechanisms, and we have highly intricate models of climate change. The conclusion is that the Earth could not support today’s population if they lived decently. The drive for eliminating poverty must be combined with a drive for population decline.

I regret that neither the new Prime Minister nor his advisors are qualified to handle this revived probability of a collapse of the world in which our young are living today.

REJECT THE SAUDI CLAIM

The actions of the Saudi Arabian embassy invoking diplomatic immunity in the case of its Diplomat accused of rape and sodomy is a shocking and immoral claim. The rules of the diplomatic immunity are not wholly statutory. They are the product of long standing usage which necessarily required that a foreign sovereign and its accredited agents should be immune from any interference with their person or property, which interference may well be interference with the discharge of their Ambassadorial functions within the guest country. There is no rule of absolute immunity for any foreign sovereign under International Law.

Two facets of this immunity are however beyond controversy – 1. No foreign diplomat is subject to any arrest or detention or compulsory attendance in any court 2. That he must be treated with extreme courtesy, respect and honour and nothing should be done to diminish or destroy these. It is equally well known that if a foreign diplomat otherwise enjoying immunity, cannot claim it in respect of civil actions arising out of any commercial operations of his not connected with discharge of its diplomatic functions. What has happened in this case, should have deeply embarrassed the Government of Saudi Arabia, for the malevolent conduct of its diplomat in India. Innocent women who were not the nationals of Saudi Arabia but another independent country were being kept in wrongful confinement, treated as slaves and subjected to outrageous sodomy and rape, not only by the diplomat but also his guests whom he wanted to entertain. The Saudi government owed a large dose of gratitude to India for having discovered these beastly activities of which any normal human being should be ashamed.

However, it seems the Saudi government requires a more fitting and virulent justification for what the Indian authorities have done. The action of the Saudi diplomat amounts to the offence, which in the relevant United Nations conventions is called ‘slavery’ and the actual practice of it as ‘slave trade’. Under the anti slavery Conventions starting from the one signed in Geneva in September, 1926, and after many amendments and additions thereafter this definition remain in force. Forced labour is included in the definition of slavery and certainly sodomising of the women for a long time by more than one male is the cruelest breach of International Law and cannot be justified by any reliance on diplomatic immunity. No state can rely on such repulsive breach of International Law defined with precision by the binding written conventions.

The sodomised women are Nepalese citizens. The cries of these unfortunate women were heard by the inmates of the housing society in Gurgaon where they were confined by the Saudi diplomat. The inmates of the society are grateful to the Government of India and so is the Government of Nepal. Surely the laws of Saudi Arabia do not permit sodomising of unwilling women held in slavery by any diplomat. It is time that India should frankly tell the Saudi Government that we shall not tolerate such activities in India. They are free to wind up and quit.

I cannot conclude this piece without congratulating the famous Islamic seminary of Sunni Muslims, Lucknow based Darul Uloom Nizamia Farangi Mahal, for the much needed Fatwa against the Satanic ISIS now in its new incarnation after it has dropped one IS and made itself a world wide movement for conversion of Darul Harb into Darul Islam. The second IS in its initials which confined its sinful intentions of forcing the Islamic state of their conception in Iraq and Syria only is now extended to the whole world.

God is the creator of all religions prophets and humans. He has not yet taken the decision to destroy all religions except Islam. Every human being is God’s creation. For any human, even to think that God is wrong and he needs human help to destroy an overwhelming majority of his creation is an insult to God and I believed that God will destroy those who are guilty of entertaining such a satanic ambition which treats God as an impotent lunatic. The thousands or more clerics from all over India who have ordained the much needed Fatwa and the leaders of this rational group the Mumbai based Mufti Manzar Hasan Khan have justly earned the gratitude and admiration of the Secular nation of India.

My Preface to My Friend's Book

I normally do not write prefaces to books written by friends but Dr. Lalwani is an exception, because the subject of the book is rather unusual and I respect him for writing it.

Many Indian patriots may not like to hear or read that an Indian, though today domiciled in UK for many long years should publicly confess that Indians have to be grateful for some valuable almost colossal benefits that British rule has bestowed on India. The fear is genuine and I am almost sure that such patriots exist in very large numbers.

False conceit often trumps unpleasant truth. A highly educated author belonging to the brave Sikh community should without the slightest hesitation publish and declare the truth, the whole truth and nothing but truth. Loyalty to history cannot be diluted by an irrational fear. The author’s reputation guarantees that no sensible person will suspect any fly in the ointment. Dr. Lalwani is no sycophant or buyable with a material reward. Besides I fully concur that Indians should be grateful for some permanent blessings of colonial rule which only the civilized British could confer upon us.

Indians have been the heirs of the Harappa and Mohenjo-Daro civilization which flourished in our part of the world more than five thousand years before the birth of Christ. Europe had long fondly believed history had started with the Greeks and that India was a dark continent inhabited by barbarians until their civilized cousins, the Aryans brought to them the light of civilization. This insolence was shattered in 1924 by the breath taking discoveries of Mohenjo-Daro and Harappa, a few hundred miles to the north of India. The excavations disclosed 4 or 5 superimposed cities with hundreds of slightly built brick houses and shops ranged along with wide streets, as well as narrow lanes, rising in many cases to several storeys. The evidence indisputably established that during the third and fourth millennium BC there existed in the area very highly developed city life, housed with wells and bathrooms and an elaborate drainage system and a general condition of citizens superior to that prevailing in contemporary Babylonia and Egypt. There was much more to make India proud but I must skip the temptation to beat my own drums.

As civilization matures the humans become peace loving, weak and sometimes indifferent to the mundane affairs of this world. These ancestors of ours met the Alexander the Macedonian Emperor on the banks of the Indus. They laughed hysterically when he told them about his plans of world conquest. By ridicule, they persuaded him to abandon his foolish plan and return to his native place. But they did give him a glimpse of their spiritual life. Even so India did continue its process of debilitating indifference to the world around them. Foreigners took advantage and continued to pour into India, Mohammed Bin Kassim in the 8th century, the Gauris, Ghaznwis and the Mughals. By the 17th century, India was a part of the Mughal empire. But that dynasty gave us magnificent emperors like Akbar the Great, and Shah Jahan the Magnificent. They became respectable Indians and ruled justly and earned the respect of their subjects. Unfortunately their descendants turned out to be religious fanatics and forfeited the respect and loyalty of their subjects and the British Crown took over from the Company. But the Dynasty left remarkable architecture like the famous Taj, local industry and exports. The British had ventured into India during the regime of Emperor Akbar, of course, initially as traders.

We were so helpless, emaciated and corrupt that a British company called the East India Company almost became a sovereign power. They had strong physiques, the benefit of scientific discoveries, the Industrial revolution, superior education and weapons of war.

Yes, like all colonial powers, even British practised economic exploitation but in the process conferred large benefits on us. British ruled us but surely they rescued the majority of Indians from the hated Jaziya Tax which converted all non Muslims into degraded inferior serfs of some sort.

A crazy young philosopher, I forget his name or the name of his Book, decided to answer a question, a very famous one by the great Einstein: “Did God have any choice in creating the Universe”?

For long he examined the mind of God and reached a not very flattering answer so far as God is concerned. His answer was: “It is a universe with no edge in space, no beginning or end in time and a Creator who had nothing better to do.”

History of this crazy world is a long story of changes in every aspect of human life. The rise and fall of ruling dynasties, ever changing ethical and religious beliefs, periods of peace and growth, new discoveries of science and growth alternating with war, famine and destructions, new discoveries of science and growth of religions, vast changes in the styles of living alternating between prosperity and penury.

The Europeans had developed a new outlook of respect for India within a few decades. India was making a strong claim to self rule and political independence.

Dr. Lalwani has good cause to be appreciative of the great good the British Connection has brought to us. They prepared us for self rule and finally made a graceful exit.

Even in the period of monarchy when Democracy and a Secular Constitution for free India was still a distant dream , education of the leaders like Gandhi Ji and Jawarlal Nehru in British Universities had created a longing for democracy, Rule of Law, an independent Judiciary to make the weak prevail against the strong, eliminating religious fanaticism and hatred and a life guided wholly by reason and logic but inspired by love and compassion. Our new Constitution of free India anxiously copied the British model of governance. Debates in our Constituent Assembly testify to this finest gift for which we do owe to the British a lot of appreciation and gratitude.

Even before the discovery of the ancient Harappa Civilization, the West had discovered in Swami Vivekananda, an amazing Indian philosopher with very few to come near him in his intellectual attainments. He attempted to combine Indian Spirituality with Western Materialism and became the main force behind the Vedanta movement in the West. The West has not forgotten till today his speech at the World Parliament of Religions in Chicago, Illinois in September 1893. For years before the amazing Harappa discoveries, right in their country, he attacked American attitude of contempt for the Blacks and their praise for the Whites. To put an end to this cultural homicide he advised that the Negro must rise up with an affirmation of his own Olympian manhood. “No Lincolnian Emancipation Proclamation or Johnsonian Civil Rights Bill can totally bring this kind of freedom” he thundered. Then he turned to Nietzschean philosophy ‘Will to Power’ and rejected it. We must get the thing right; We must realize that power without love is reckless and abusive; and love without power is sentimental and anaemic . He then propounded the doctrine of non violence. It is the most important weapon available to the Black in this struggle for justice. Through violence you kill the hater but you do not conquer hate, he argued.

The Americans learnt a lot from what this great Indian said to them. India rose in the esteem of our rulers too and I am almost sure that after the first quarter of the next century was over the British had decided that their rule will have to end soon and a new era of mutual respect and cooperation will start. The legatees of Harappa can’t remain slaves. The peaceful transformation of the next quarter of the century is proof of British grace and goodwill.

While I write this, it is impossible to ignore the great British born theosophist Dr. Annie Besant who was a scholar of Hindu Shastras, accepted as an axiom for life the shastric principle ‘Vasudhaiva Kutumbakam’ meaning the whole world is my family. She wrote and lectured on Hinduism. She was a poet, excellent orator and a versatile tornado of power and passion. She loved India, became its leader and in her speech in South India at the First Students Conference in June 1916 she advised the students to get ready to be the leaders of India by mastering history, logic and political economy. She had obviously a strong intuition that British Rule was coming to an end, and India deserves its freedom.

While coming to the end I remind myself that I am the country's oldest practising lawyer and teacher of law. I can't resist citing judicial precedents to support my views. When our Constituent Assembly was drafting the new Constitution of free India we doubtless had decided to copy a Westminster model of democracy. We created a Council of Ministers to aid and advice the President but we forgot to provide in express terms that the President of India will normally be bound by it . This lacuna, somewhat serious in a written and detailed constitution ,was noticed only after about a quarter of a century after the Constitution came into force in 1950. The lacuna was filled up by a judgment of the Supreme Court of India afterwards. One of our finest judges, Justice Krishna Iyer in his inimitable style wrote -' Not the Potomac but the Thames fertilized the flow of the Yamuna, if we may adopt a riverine imagery'. In this thesis we are fortified by the precedent of this Court, strengthened by the Constituent Assembly proceedings and reinforced by the actual working of the organ involved for about a silver jubilee ' span of time '. Thus was laid the rule that the President of India is as much bound by ministerial advice as the British monarch.

Dr Lalwani is on the right track.