Justice Rajindar Sachar (1923-2018): Our Finest Has Gone

TRIBUTE

by Qurban Ali

Veteran Socialist leader, noted jurist and champion of human rights Justice (retired) Rajindar Sachar passed away in Delhi on April 20, 2018. He was 94. A distinguished advocate for the protection of human rights, and poor, Justice Sachar was a former Chief Justice of Delhi and Sikkim High Courts. He vociferously promoted the cause of human rights and was also head of the People’s Union for Civil Liberties (PUCL). He authored many reports on Kashmir.

Paying emotional tribute on the sad demise of late Justice Rajindar Sachar, senior journalist Seema Mustafa wrote: “One of our finest has gone. Justice Rajindar Sachar has left us, fairly suddenly without too much notice except that delivered by age. A mentor, a friend, a man whose doors were always open, he will be sorely missed. He did not really care—unlike Delhi’s famous—whether he was invited to speak or not, if he supported the cause he was there in the audience, listening attentively. For many of us he was the person we turned to when the times seemed very bleak and dark, just to hear Justice Sachar tell us that it will get better. The wisdom of experience and age gave his voice authority, and lifted spirits when little else would.”

Rajindar Sachar was born on December 22, 1923 at Lahore in undivided India. His father, Lala Bhim Sen Sachar, was a well-known Congress leader and later become the Chief Minister of Punjab. He educated at D.A.V. High School in Lahore, then went on to Government College, Lahore and Law College, Lahore. During his students days he was attached to the national movement and joined the Congress Socialist Party. After the partition of the country he came to Delhi and joined the Socialist Party.

In May 1949, the Socialist Party under Rammanohar Lohia’s leadership held a demons-tration in front of the Nepal embassy in New Delhi to protest against the autocratic and repressive regime of the Rana Government in the Himalayan kingdom. There was violence and the police used teargas shells to disperse the mob.

Lohia was arrested for violating Section 144 Cr.P.C. Young Rajindar Sachar was also arrested with Lohia and remained in jail for a month- and-a-half. According to Sachar sahib, “It was during that imprisonment that Nehru and Indira sent a basket of mangoes to Lohia. Sardar Patel was very angry and wrote to Nehru expressing his annoyance over sending mangoes to a person who had violated the law. Nehru in his quiet way told him that politics and personal relationships should not be mixed up.” It was the first movement and arrest in free India where the Socialists offered civil disobedience.

On April 22, 1952 Rajindar Sachar enrolled as an advocate at Simla. On December 8, 1960 he became an advocate in the Supreme Court of India, engaging in a wide variety of cases concerning civil, criminal and revenue issues. But at the same time he was actively associated with the Socialist Party led by Lohia. In 1963 a breakaway group of legislators left the Congress party and formed the independent “Prajatantra Party”. Sachar helped this group prepare memoranda levelling charges of corruption and mal-administration against Pratap Singh Kairon, the Chief Minister of Punjab. Justice Sudhi Ranjan Das was appointed to look into the charges, and in June 1964 found Kairon guilty on eight counts.

On February 12, 1970 Rajindar Sachar was appointed Additional Judge of the Delhi High Court for a two-year term, and on February 12, 1972 he was reappointed for another two years. On July 5, 1972 he was appointed a permanent Judge of the High Court. He was the Acting Chief Justice of the Sikkim High Court from May 16, 1975 until May 10, 1976, when he was made a judge in the Rajasthan High Court. The transfer from Sikkim to Rajasthan was made without Sachar’s consent during the Emergency (June 1975-March 1977) when elections and civil liberties were suspended. Sachar was one of the judges who refused to follow the bidding of the Emergency establishment, and who were transferred as a form of punishment. After the restoration of democracy, on July 9, 1977 he was transferred back to the Delhi High Court.

In June 1977 Justice Sachar was appointed by the government to chair a committee that reviewed the Companies Act and the Monopolies and Restrictive Trade Practices Act, submitting an encyclopaedic report on the subject in August 1978. The Sachar Committee recommended a major overhaul of the corporate reporting system, and particularly of the approach to reporting on social impacts. In May 1984 Rajindar Sachar reviewed the Industrial Disputes Act, including the backlog of cases. His report was scathing. He said: “A more horrendous and despairing situation can hardly be imagined... the load at present in the various Labour Courts and Industrial Tribunals is so disproportionate to what can conceivably be borne... that the arrears can only go on increasing if the present state of affairs is not improved... It is harsh and unjust to both the employers and employees if the cases continue to remain undecided for years.”

In November 1984, Justice Sachar issued notice to the police on a writ petition filed by the People’s Union for Democratic Rights on the basis of evidence collected from the 1984 Sikh riot victims, asking FIRs to be registered against leaders named in the affidavits of victims. However, in the next hearing the case was removed from the Court of Mr Sachar and brought before two other Judges, who impressed the petitioners to withdraw their petition in the national interest, which they declined; then dismissed the petition.

As an Indian lawyer and a former Chief Justice of the Delhi High Court, Sachar sahib was a member of United Nations Sub-Commission on the Promotion and Protection of Human Rights. He has served there as a counsel for the People’s Union for Civil Liberties. He chaired the Sachar Committee, constituted by the Govern-ment of India, which submitted a report on the social, economic and educational status of Muslims in India.

Rajindar Sachar was one of the authors of a report issued on April 22, 1990 on behalf of the People’s Union for Civil Liberties and others entitled “Report on Kashmir Situation”. In January 1992 Sachar was one of the signatories to an appeal to all Punjabis asking them to ensure that the forthcoming elections were free and were seen to be free. They asked the people to ensure there was no violence, coercion or unfair practices that would prevent the people from electing the government of their choice. Rajindar Sachar was appointed to a high-level Advisory Committee chaired by Chief Justice Aziz Mushabber Ahmadi to review the Protection of Human Rights Act, 1993 and determine whether structural changes and amendments were needed. The Committee prepared a draft amendment Bill incorporating its recommendations. These included changes to the membership of the National Human Rights Commission, changes to procedures to reduce delays in following up recommendations and a broadening of the Commission’s scope. The recommendations were submitted to the Home Affairs Ministry on March 7, 2000.

In April 2003, as a counsel for the People’s Union for Civil Liberties (PUCL), Sachar argued before the Supreme Court of India that the Prevention of Terrorist Activities Act (POTA) should be quashed since it violated fundamental rights. On November 24, 2002 the police arrested twentysix people in the Dharmapuri district of Tamil Nadu, and on January 10, 2003 they were placed under POTA by the government on the ground that they were members of the Radical Youth League of the Communist Party of India (Marxist—Leninist). On August 26, 2004, still being held without trial, the detainees began a hunger strike. Sachar led a team of human rights activists who visited them in jail on September 15, 2004 and persuaded them to end the hunger strike. POTA was repealed on November 10, 2004. However, all the POTA provisions were incorporated in the Unlawful Activities (Prevention) Act. In October 2009 Sachar called for abolition of these laws.

He said: “Terrorism is there, I admit, but in the name of terror probe, many innocent people are taken into custody without registering a charge and are being detained for a long period.”

Rajindar Sachar, who had formerly been a United Nations Special Rapporteur on the Right to Adequate Housing, headed a mission that investigated housing rights in Kenya for the Housing and Land Rights Committee of the Habitat International Coalition. In its report issued in March 2000 the mission found that the Kenyan Government had failed to meet its international obligations regarding protection of its citizens’ housing rights. The report described misallocation of public land, evictions and land-grabbing by corrupt politicians and bureaucrats.

In March 2005 Justice Rajindar Sachar was appointed to a committee to study the condition of the Muslim community in India and to prepare a comprehensive report on their social, economic and educational status. On November 17, 2006 he presented the report, entitled “Report on Social, Economic and Educational Status of the Muslim Community of India”, to Prime Minister Manmohan Singh. The report showed the growing social and economic insecurity that had been imposed on Muslims since indepen-dence sixty years earlier. It found that the Muslim population, estimated at over 138 million in 2001, were under-represented in the civil service, police, military and in politics. Muslims were more likely to be poor, illiterate, unhealthy and to have trouble with the law than other Indians. Muslims were accused of being against the Indian state, of being terrorists, and politicians who tried to help them risked being accused of “appeasing” them.

The Sachar Committee recommendations aimed to promote inclusion of the diverse communities in India and their equal treatment. It emphasised initiatives that were general rather than specific to any one community. It was a landmark in the debate on the Muslim question in India. The speed of implementation would naturally depend on political factors including the extent of backlash from Hindutva groups. The Sachar Committee Report recom-mended setting up an institutional structure for an Equal Opportunity Commission.

In March 2003 Sachar was a signatory to a statement that condemned the US-led invasion of Iraq, calling it “unprovoked, unjustified and violative of international law and the United Nations Charter”. Other signatories included Shanti Bhushan, Pavani Parameswara Rao, Rajeev Dhavan, Kapil Sibal and Prashant Bhushan.

He was a judge who set an example. That after retirement judges did not need to go into holes, and in fact were required to play a major role in keeping India on the constitutional track. He spoke fearlessly, boldly, did not look for favours from the establishment regardless of who was in power, and as a result rubbed all the wrong way saying when we used to laugh, “well, I am with the people and that’s all that matters.”

One does not really know where to begin, or for that matter end this tribute. Does one remember him for the Sachar Report on the status of the Muslim community in India that created a storm as it was an honest and starkly revealing document? Or for his stand on civil liberties for all? Or for his criticism of established political parties? Or for his love for the Indian Constitution that was always so visible? Or for his gentle enquiries when he knew an individual was troubled? Or for his willingness to walk the extra mile at any time of the day or night to help a person in need or for a cause? Or for his consistency in advocating peace in South Asia? Or for his fearlessness in taking on the communalists? Or for his strong support for gender equality and justice?

By the end Justice Sachar was visibly frail, a little bent with age, and clearly with many off-days that he made sure none of us really knew about. This would not prevent him from attending meetings, signing statements and organising fact-finding reports till his last days.

One never heard him complain about his health. One never heard even a note of pessimism in his voice. One never heard him talk about his ailments or his problems. He was always there for everyone else, for India and her people. In these years one did, however, hear some pessimism in his voice. A ‘what will happen to our country’ tone, with worries that he would share occasionally.

Justice Sachar’s admiration for Rammanohar Lohia spanned his life, never diminishing. But he never allowed that to come in his way of relationships with those who were perhaps, very critical of his mentor. As he said, “your view is yours, mine is mine.” And would then tell us stories about the differences between Jawaharlal Nehru and Lohia that never came in the way of mutual respect.

There are not many left now who say it like you did, Justice Sachar, without mincing words, or looking over your shoulder, or bothering how the chattering classes would react. You looked for no favours, no positions, no awards. Respect Sir, Always!!!

Qurban Ali is a TV journalist and can be contacted on qurban100[at]gmail.com

As a token of our homage to the abiding memory of Justice Rajindar Sachar, we are reproducing the following two articles, written by him, that appeared in Mainstream a year ago in April 2017. —Editor

Supreme Court Should Decide Ayodhya Case — No Scope for Mutual Settlement

The suggestion of the Chief Justice of India to even act as a mediator in the pending Babri Masjid demolition case, showed his concern but it was a little odd considering that it came at the instance of an inter-meddler, and without the parties involved being before the Court— that is why it caused amongst the parties a certain concern. In my view, the Babri Masjid demolition case is not a matter for compromise. This case raises the deep concern regarding our Constitution which clearly says India is a secular republic.

I was in Geneva attending a UN Human Rights Commission meeting when I was told of the horrible news that came on TV that the Babri Masjid had been demolished and saw the gory spectacle of the BJP hoodlums climbing on to the Masjid and breaking it down. The BJP Government’s Chief Minister Kalyan Singh’s assurance to the Supreme Court, that he will take all steps to prevent it, was belied. The Supreme Court, by a majority, just accepted his apology instead of sending him to jail for contempt of court. But this was nothing compared to the ominous conspiracy of the Congress Prime Minister, Narasimha Rao, who suddenly became inaccessible to senior journalists, his Home Secretary and even his colleagues.

I am also ashamed to admit the unworthy role of complicity of the judiciary which, in spite of the injunction having given since 1949 against the public not to enter the area, did not proceed against those who perpetrated the act—even the higher judiciary did not intervene—rather turned a blind eye to it. This was the time when the magnitude of the danger should have been appreciated by all the parties but was not. The battle for secularism should have been joined with a singular determination of nipping in the bud the cancer of communalism. But nothing was done.

I then made a public statement observing: “Immediately the government should have announced December 6 as a ‘National Repentance Day’ when the people will fast and pray for unity and welfare of all the communities.” But the non-BJP parties analysed the situation as merely one of law and order and thus acquiesced in this dastardly act.

Whatever the past history, all the parties let the matter go to the Allahabad High Court to give a decision. The High Court has given a decision with which both parties are aggrieved. The BJP is still insisting that it would build a temple at the site where the Masjid undoubtedly stood for over 500 years. Muslims cannot obviously agree to a shameful compromise on the sanctity of the Masjid. The matter is already before the Supreme Court—it cannot run away from giving a decision which may not make everyone happy. But then it is its constitutional duty and it has no other alternative. I cannot foretell the Supreme Court decision. But if past precedents are to prevail, then the case in favour of the Muslims is invincible. I say this on the precedence of the Masjid Shahidganj case, Lahore, (now in Pakistan) decided by the Privy Council in 1940. The Supreme Court need not decide on merits whether the Babri Masjid had been in existence where the Ram Temple existed or not because that is of no consequence as it is not relevant to the decision of the case. This is because even if it was, there is no denying that the Babri Masjid has been in existence for 500 years.

Now it is obvious to the meanest intelligence that it is impossible to prove that the birthplace of Lord Ram was under the Masjid—it may be a matter of faith, genuine or contrived or otherwise, but that is no proof, nor can it ever be put forward as a legal ground to take away the land from the mosque.

If the finding is that the Masjid was not built on Ram’s birthplace, then the Muslims will get the land back and should be free to use it in any way, including the rebuilding of the mosque.

Alternatively even if it is held that there was a temple on the land of the Babri Masjid, even with this finding the suit by the VHP/RSS has to be dismissed. Admittedly, the Babri Masjid had been in existence for over 500 years till it was demolished by the goons of the VHP/RSS in 1992. Legally speaking, even then the Sangh Parivar would have no right even if a temple had been demolished to build the Babri Masjid. I say this in view of the precedent of the case of Masjid Shahidganj in Lahore decided by the Privy Council in 1940. In that case there was admittedly a mosque existing since 1722 AD. But by 1762, the building came under Sikh rule and was used as a gurdwara. It was only in 1935 that a suit was filed claiming that the building was a mosque and should be returned to the Muslims.

The Privy Council, while observing that “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contention that such a building cannot be possessed adversely”, went on to hold: “The property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of the mutawali (caretaker) to possession for the purposes of the waqf came to an end under the Limitation Act.” On the same parity of reasoning even if a temple existed prior to the building of the Masjid 500 years ago, the suit by the Hindu outfits like Nirmal Akhara/VHP/BJP etc. has to fail.

There is another reason why in such a situation the suit will fail: because in common law, even a rightful heir, if he kills his ancestor, forfeits his right of inheritance. In the Masjid case too there was a “murder most foul” and hence the murderer cannot be allowed to take the benefit of his own dastardly deeds, whatever the factual position may be.

Of course it is the privilege of the Chief Justice of India to constitute the Bench. One may, however, respectfully submit that it would be more reassuring if a Bench of seven or nine judges was to hear the appeal.

(Mainstream, April 8, 2017)

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Fight Against Treason Call of Hindu Rashtra by BJP

The results of the UP State Assembly elections have come as a shock to all parties including the pollsters. The appointment of Yogi Adityanath as the Chief Minister of UP is the worst outcome. I feel that it requires all political parties, the secular and Leftists (I am using loosely because unfortunately the meanings of the terms have become quite barren), to come close to each other.

I am mentioning some items which all of us could take up, as these have no party monopoly. Of course my suggestions are very tentative and can be finalised at a separate meeting of all parties, of the Leftist parties, trade unions. This is necessary because the BJP Government is determined to dismantle the public sector, the sheet-anchor for a socialist society.

A. Minimum of 30 per cent Income Tax on those with higher income including the Corporate Sector.

B. Inheritance Tax to reduce gross inequality in the society; even the conservative Governor of the Reserve Bank is suggesting it.

C. Disclose in public the names of big defaulters of public sector banks, the total amount being Rs 8 lakh crores. Why should they be shielded, when they are endangering the public interest and economy?

D. Napams and anti-corridor battle could be jointly fought out.

E. Prohibition against any election funding by the corporate sector even in the guise of separate electoral trusts formed by the corporate sector.

I am also suggesting some other common items in the programme for action immediately like: Revival of women’s reservation in State Legis-latures and Parliament.

Fight against the government’s misuse of perverting the Lok Sabha Speaker’s power to certify certain legislations as Money Bill in order to avoid defeat in the Rajya Sabha.

There is a gross misuse of the majority in the Lok Sabha by the BJP Government. The BJP’s Central Government has already started working unconstitutionally, as is clear from its misuse of Article 110 of the Constitution—regarding the Finance Bill. This is done obviously because it could not modify the Income Tax Law or the Companies Act for making such vital changes against the established rights of citizens guaranteed by the Constitution as it has no majority in the Rajya Sabha.

The BJP’s Central Government is tearing all established conventions, including amendments on the Companies Act, which is most mischievous. At present under the Companies Act there is a ceiling for donation, especially making it anonymous. The Central Government’s amendment will result in what an American commentator has said after the Citizens case in the USA, “that the nation” will have corporate democracy and not people’s democracy.

I believe one could go to court against the provisions incorporated in the Income Tax Act and Companies Act on the ground of violation of Article 14, and the irrelevance of these legis-lations behind the passing of the Finance Bill.

I know political funding is a touchy subject for the Congress but then larger public interest requires it to be challenged. The misuse of Aadhar to make each one of the provisions of secrecy of the Income Tax Act, the banking law a nullity is a further assault of the individual rights of citizens.

Speaking personally, we must refuse to file Income Tax Returns or opening of Bank accounts by getting Aadhar, which I believe is a serious inroad into the privacy of the individual except in the case of those programmes like subsidies schemes to avoid possibly the wrong person getting the benefit. I know the Congress Government brought in Aadhar. But really its misuse by the Modi Government requires action by the Congress. I would suggest that the Congress and entire Opposition should bring a legislation in the Rajya Sabha opposing the changes made in the Companies Act and Income Tax by the BJP as incorporated in the Finance Bill (where it will be passed because it has a majority in the Rajya Sabha). This will create a constitu-tional crisis and bring the matter strongly to the notice of the public on these issues.

  The extreme danger of the BJP choosing Yogi Adityanath and his open declaration that India is a Hindu Rashtra has shown the deep viciousness of the RSS and BJP. For this purpose other parties will have to make serious mutual adjustments—of course subject to the ruling parties in other States also playing fair. I would provisionally suggest that the distribution of seats in respective States should be done by non-BJP parties in such a manner that there is a single candidate opposing the BJP candidate. Of course the Opposition-ruled States like Mamata in Bengal, Patnaik in Odisha, the Congress in Punjab and Karnataka will have to make equitable adjustments, but the other parties must also go for deep adjustment. Only in this way can the evil of the BJP headed by the Yogi in UP, with its obvious call for Hindu Rashtra (a treasonable slogan by the ruling party at the Centre) can be successfully met to prevent fascism in our country.

Let all the parties sit together and work out concrete specific programmes and policies to meet this menace. If the parties will not show this adjustment, the public in India will never forgive the Opposition parties for failing to show that foresight, self-abnegation before the attack on secularism, the basic feature of our Constitution. We should start an open debate and launch public meetings to point out the danger to our democracy. This will require approaching all political parties to draw up a common programme. In this certain ground rules will have to be worked out. Both the political parties, which are in power in respective States, and the non-BJP Opposition parties will have to work out a joint strategy for mutual benefit of each other.

In order to meet the 2019 parliamentary electoral challenge, I feel that all non-BJP parties should work on a commonly agreed programme. Loose general talks separately will not work. I feel we need to develop Dr Lohia’s election strategy of 1967 where we had non-Congress Opposition- ruled governments in nine States. We only have to work for similar non-BJP Opposition ruled States—this alone will create an atmosphere which may result in non-BJP parties forming the government at the Centre in Delhi.

(Mainstream, April 15, 2017)

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Irfan Engineer’s Tribute

We are deeply saddened by the recent passing of former Chief Justice of the Delhi High Court Rajindar Sachar. Justice Sachar was the chair of the seven member high-level committee that came to be known by his name, the Sachar Committee, which reported on the social, economic, and educational status of Muslims in India. He was also the President of the People’s Union for Civil Liberties (PUCL), a human rights organisation. Justice Sachar was unwavering in his commitment to protecting the human rights of marginalised communities. The Centre for the Study of Society and Secularism takes inspiration from Justice Sachar’s work in our attempt to contribute in improving the conditions of vulnerable communities.

Irfan Engineer 

Director,
Centre for Study of
Mumbai Society and Secularism