Copyright. All rights reserved. Ram Jethmalani. 2019.
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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?