S. Ratnavael Pandian. J.[1]
Part-III dealing with ‘Fundamental Rights’ and Part-IV dealing with ‘Directive Principles of State Policy’ which represent the core of the Indian Constitutional philosophy envisage the methodology for removal of historic injustice and inequalities – either inherited or artificially created – and social and economic disparity and ultimately for achieving an egalitarian society in terms of the basic structure of our Constitution as spelt out by the preamble.
12. Though all men and women created by the Almighty, whether orthodox or heterodox; whether theist or atheist; whether born in the highest class or lowest class; whether belong to ‘A’ religion or ‘B’ religion are biologically same, having same purity of blood. In a Hindu Society they are divided into a number of distinct sections and subsections known as castes and sub-castes. The moment a child comes out of the mother’s womb in a Hindu family and takes its first breath and even before its umbilical cord is cut off, the innocent child is branded, stigmatized and put in a separate slot according to the caste of its parents despite the fact that the birth of the child in the particular slot is not by choice but by chance.
13. The concept of inequality is unknown in the kingdom of God who creates all beings equal, but the “created” of the creator has created the artificial inequality in the name of casteism with selfish motive and Vested interest.
14. Swami Vivekananda in one of his letters addressed to his disciples in Madras dated 24-1-1894 has stated thus :
“Caste or no caste, creed or no creed, …….or class, or caste, or nation, or institution which bars the power of free thought and action of an individual – even so long as that power does not injure others – is devilish and must go down.”
(Vide ‘The Complete Works of Swami Vivekananda, Vol. V page 29)
15. A Biblical verse in New Testament says “He denieth none that come unto Him, black and white”.
16. Sura 10 Verse No. 44 of Holy Quran reads :
“Verily God will not deal unjustly with man in aught; it is man that wrongs his own soul.”
17. The Hindus who form the majority, in our country, are divided into 4 Varnas -namely, Brahmins, Kshatriyas, Vaishyas (who are all twice born) and lastly Shudras which Varnas are having a four tier demarcated hierarchical caste system based on religious tenets, believed to be of divine origin or divinely ordained, otherwise called the Hindu Vernasharma Dharma Beyond the 4 Varnas Hinduism recognises a community, by name panchama (untouchables) though Shudras are recognised as being the lowest rung of the hierarchical race. This system not only creates extreme forms of caste and gender prejudices, injustices, inequalities but also divides the society into privileged and disabled, revered and despised and so on. The perpetuation of casteism, in the words of Swami Vivekananda “continues social tyranny of ages”. The caste system has been religiously preserved in many way including by the judicial verdicts, pronounced according to the traditional Hindu Law.
18. On account of the caste system and the consequent inequalities prevailing in Hinduism between person to person on the basis of Varnasharama Dharma new religions such as Buddhism and Jainism came into existence on the soil of this land. Many humanistic thinkers and far seeing revolutionary leaders who stood foursquare by the down-trodden section of the Backward Classes aroused the consciousness of the backward class to fight for justice and join the wider struggle for social equality and propagated various reforms. It was their campaign of waging an unending war against social injustice which created a new awareness. The sustained and strenuous efforts of those leaders in that pursuit have been responsible for bringing many new social reforms.
19. Recognizing and recalling the selfless and dedicated social service carried on by those great leaders from their birth to the last breath; the then Prime Minister while making his clarificatory statement regarding the implementation of the Mandal Commission’s Report in the Rajya Sabha on the 9th August 1990 paid the tributes in the following words :
“In fact this is the realisation of the dream of BHARAT RATNA Dr. B. R. Ambedkar, of the great PERIYAR Ramaswamy and Dr. Ram Manohar Lohia.”
20. Harkingback, it is for the first time that the controversial issue as regards the equality of opportunity in matters of public employment as contemplated under Article 16(4) has come up for deliberation before a nine-Judges Bench, on being referred to by a five-Judges Bench.
21. There are various Constitutional provisions such as Articles 14, 15, 16, 17, 38, 46, 332, 338 and 340 which are designed to redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes and which have come for judicial interpretation on and off. It is not merely a part of the Constitution but also a national commitment.
22. Supreme Court which stands as a sentinel on the quite vie over the rights of people of this country has to interpret the Constitution in its true spirit with insight into social values and suppleness of the adoption to the changing social needs upholding the basic structure of the Constitution for securing social justice, economic justice and political justice as well as equality of status and equality of opportunity.
23. The very blood and soul of our Constitutional scheme are to achieve the objectives of our Constitution as contained in the preamble which is part of our Constitution as declared by Supreme Court in Kesvananda Bharti v. State of Kerala, 1973 (Suppl) SCR 1 So it is incumbent to lift the veil and see the notable aspirations of the Constitution.
24. No one can be permitted to invoke the Constitution either, as a sword for an offence or as a shield for anticipatory defence, in the sense that no one under the guise of interpreting the Constitution can cause irrevertible injustice and irredeemable inequalities to any section of the people or can protect those unethically claiming unquestionable dynastic monopoly over the Constitutional benefits.
25. Therefore, the Judges who are entrusted with the task of fostering an advanced social policy in terms of the Constitutional mandates cannot afford to sit in ivory towers keeping Olympian silence unnoticed and uncaring of the storms and stresses that affect the society.
26. This Summit Court has not only to interpret the Constitution but also sometimes to articulate the Constitutional norms, serving as a publicist for reforms in the areas of the most pressing needs and directing the executive to take the needed actions. Mere verbal gymnastics or empty slogans and sermons honoured more often in rhetoric than practice are of no use.
27. It may be a journey of thousand miles in achieving the equality of status and of opportunity, yet it must begin with a single step. So let the socially backward people take their first step in that endeavour and march on and on.
28. When new societal conditions and factual situations demand the Judges to speak they, without professing the tradition of judicial lock-jaw, must speak out. So I speak.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448.