28, Jun 2021 | CJP Team

The preventive detention law by its very nature has always posed a challenge before the courts in a democratic society such as ours to reconcile the liberty of the individual with the allegedly threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people.” ____Justice PB Sawant

The above was an observation made by Justice Parshuram Babaram Sawant in the Alka Subhash Gadia case in 1992. His words proved prophetic as years later, scores of activists were detained, arrested, summoned, when they stood up for human rights, or raised their voices against Laws such as the Citizenship (Amendement) Act.

On June 30, 2021, the Retired Supreme Court Judge PB Sawant, would have marked his 91st birthday, and in all probability would have been writing his column, and commenting on the current social political scenario, where minorities, women, dalits, migrant labourers, tribals, continue to face both harassment and state apathy. He passed away in his Pune home on February 15 this year, leaving behind many who mourn his passing, but also continue to celebrate the legacy of fairplay, bravery, kindness, and empathy that he has left behind.

In the courtroom Justice Sawant ensured social, political justice for all. After retirement he continued to speak up for those who could not.  “Equality postulates not merely legal equality but also real equality…  equality of opportunity has to be distinguished from the equality of results” is not merely one of his most memorable quotes, it is a life mantra.

Born in 1930, he obtained an LLB from Mumbai University and started practicing in the Bombay High Court, often representing labourers and farmers early on. He was inspired by Dr. BR Ambedkar and Jyotiba Phule, and strived to empower the most oppressed and marginalised sections. He retired in 1995, but remained active in public life.

Justice Sawant authored three books: Mass Media in Contemporary Society (1998), Advertising Law and Ethics (2002) and A Grammar of Democracy (2013). The titles are self explanatory, and in the scores of opinions and other writings that he authored. Justice Sawant always underlined the rights of the citizens, especially the marginalised.

As written by Teesta Setalvad in her column in Indian Express soon after his passing, “His unwavering clarity and commitment to deepening democracy at the grassroots was a passion for this jurist and also led him to be recognised for verdicts of depth and calibre. Be it the Mandal verdict or the famed S R Bommai judgment — these ironically could be counted among the least cited verdicts of the highest court in the land — both displayed an understanding of Indian state and society that was real and rooted.”

Here are some of the landmark observations made by Justice Sawant, the champion of secularism, citizenship, equality, and human rights for all.

The S.R Bommai case (1994)

“The States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule,” said Justice Sawant, he was a part of a Bench that held secularism as part of the basic structure of the Constitution. It was in March 1994 that the Supreme Court delivered a nine member verdict, known in popular legalese as S.R. Bommai vs Union of India (Supreme Court Cases (SCC), 1994, Volume 3).

The SR Bommai vs Union of India, March 1994 judgement heralded for its endorsement of Indian federalism, is also a sharp and biting commentary on inroads of religion into politics and safeguards Indian secularism. Bommai‘s promise of fair federal play, the judgment’s mandate for secularism, and for action against parties and State governments violating the constitutional philosophy that prohibits the mixing up of religion and politics. This judgement is yet to be acted upon.

Elgar Parishad and Bhima Koregaon

Even as scores activists were being questioned by investigation agencies, in the Bhima Koregaon investigations, Justice Sawant publicly said it was he and Justice Kolse-Patil who were the main organisers and sole funders of the Elgar Parishad conclave held on December 31, 2017 in Pune. This declaration came in the wake of the National Investigation Agency’s claims it was the activists’ fiery speeches that precipitated the violence at Bhima Koregaon the following day on January 1, 2018. Sawant, one of the senior most jurists of the country, had told CJP secretary and human rights defender Teesta Setalvad in an exclusive interview  in 2018, “The right-wing forces do not accept our present Constitution. They believe neither in democracy, nor socialism nor secularism.” He explained how the two sets of raids on activists and dissenting voices are a part of a wider RSS agenda to replace the Constitution with the Manusmriti and further their supremacist agenda. He had said that the nationwide arrests of activists was a “ploy” to divert attention from a huge Hindutva terror plot. He had put on record that the Parshad had not been funded by Maoists and had no Naxal links. Most of the activists arrested in the case remain behind bars.

Justice Sawant and the news media

Justice Sawant had served as chairman of the Press Council of India and in his tenure there made one of the biggest observations about the media, cautioning against corporate ownership of the media, and media running instant exit polls. These two points continue to be contentious, especially in the current political scenario, where terms like ‘godi media’ are used to describe journalists acting as pro-government reporters. Justice Sawant had opined that publication of exit polls be restricted till the last vote was cast. His words were a warning of how the media can be used or manipulated.

The Press Council of India opined, “Newspapers should not allow their forum to be used for distortions and manipulations of the elections and should not allow themselves to be exploited by the interested parties.” It noted that where polls are on staggered dates, “Media is seen to carry exit-poll surveys of the polls already held. This is likely to influence the voters where the polling is yet to commence”. It stated that “it is necessary that the media does not publish the exit-poll surveys till the last polls are held.” The Press Council then issued a detailed media guideline in respect of the exit-polls, as well as one for journalists covering financial matters.

Abrogation of Article 370 is illegal

“Abrogation of Article 370 is illegal,” he himself wrote in his opinion column in The Indian Express on  September 27, 2019.  He wrote, “We should realise that with all the leaders of the Kashmiris under house arrest, the communications closed, seething discontent of the people fermenting every hour, the people of Kashmir cannot be suppressed with force for long. Both history and common sense dictate against it… There is still a scope for an amicable political settlement, by which the affection of the Kashmiris can be won. For this, however, our government has to shed its macho image and come out with realistic measures to win the confidence and trust of the Kashmiris.” His prophetic words are recalled after the Prime Minister  Narendra Modi held a 3-hour meeting with these very leaders of Jammu and Kashmir, aimed at removing “Dilli ki Doori as well as Dil Ki Doori”.

There are many, many such observations made by Justice Sawant, which should make for mandatory reading in schools and colleges across India so generations of citizens can understand both secularism and the Constitution.

Citizens for Justice and Peace (CJP) will join Justice Sawant’s family in organising a memorial to the legal luminary and humanitarian. You too can join his friends, colleagues, students and journalists in celebrating the life of Justice PB Sawant on June 30, 2021. Register here:

Related:

When the Supreme Court Firmly De-linked Religion from Politics

A Fact Sheet To Explain the Significance of the SR Bommai vs Union of India Case

Justice PB Sawant no more