Abstract
Justice Rajindar Sachar was a stalwart and legend of his generation. He commanded respect, both as a judge as well as a jurist. Above all, he was known and will be remembered as a fine and wonderful human being. His laurels speak for themselves. A man always at the forefront in the fight to protect human rights, he had the natural ability to connect with the marginalised and thus become treasured by young people. His innate compassion for the poor and the deprived was something that attracted him to the human rights movement, which he led in the company of other legends like V. M. Tarkunde, K. G. Kannabiran, Rajni Kothari, Surendra Mohan, Y. P. Chibber and Inder Mohan, among many others. The younger generation will always look forward to these crusaders for inspiration in the on-going struggle for the protection of human rights in our country.
Justice Sachar demonstrated his resilience during the dark days of Emergency (1975–1977), which was marked by a severe onslaught on the basic freedoms guaranteed under the Constitution. Thousands of people suffered incarceration without the authority of law, and thousands were tortured in the state of lawlessness. The autocratic regime, to overawe the judiciary, resorted to the supersession of judges in the Apex Court and transfer of High Court Judges as punitive measures. Justice Sachar’s voice could not be muted during this period, though he was subjected to a punitive transfer from the Delhi High Court to the Sikkim High Court as the Acting Chief Justice and then subsequently to the Rajasthan High Court as a Puisne Judge. However, he sailed through the Emergency and overcame the series of indignities wreaked on him by the Executive with grace.
Justice Sachar’s father, Bhimsen Sachar, who, in his own illustrious career as a freedom fighter, served as the Chief Minister of Punjab, Governor of Orissa, High Commissioner of India to Sri Lanka and as a close friend of Pandit Jawaharlal Nehru, was arrested at the age of 85 years for appealing to Mrs Indira Gandhi to withdraw press censorship imposed during the Emergency years. During this period, Justice Sachar’s brother-in-law, Kuldip Nayyar, a prominent journalist, also suffered incarceration because of his bold opposition to the Emergency. However, Justice Sachar did not buckle under pressure and the coercive tactics of the administration during the Emergency regime. He stood strong and continued to follow his moral compass.
Sachar, the Judge
In his judicial capacity, Justice Sachar contribution was crucial in the development of human rights jurisprudence in India. His judicial experience was not ordinary. During his tenure he faced a multitude of challenges but still delivered inspiring judgements.
Justice Sachar led the Division Bench of the Delhi High Court in State v. Sanjay Kumar Bhatia [1985 Cri LJ 931] in decriminalising the attempt to commit suicide under Section 309 of the Indian Penal Code. While striking down Section 309 of the IPC, Justice Sachar observed for the Bench:
It is ironic that Section 309 IPC still continues to be in our Penal Code .… Strange paradox that in the age of votaries of euthanasia, suicide should be criminally punishable. Instead of society hanging its head in shame that there should be such social strains that a young man (the hope of tomorrow) should be driven to suicide compounds its inadequacy by treating the boy as a criminal. Instead of sending the young boy to a psychiatric clinic it gleefully sends him to mingle with criminals … No wonder so long as society refuses to face this reality its coercive machinery will invoke a provision like Section 309 IPC which has no justification to continue to remain in the statute book.
On the issue of decriminalisation of the attempt to suicide, the Supreme Court initially upheld the aforementioned view of the Delhi High Court in P. Rathinam v. Union of India 1 and struck it down from the Penal Code. However, in a subsequent Constitution Bench judgement in Gian Kaur v. State of Punjab 2 the Supreme Court while overruling Rathinam restored Section 309 to its original form in the Penal Code. Over two decades later, the Supreme Court in another Constitutional Bench judgement in Common Cause v. Union of India, 3 while permitting passive euthanasia as a constitutionally permissible aspect of right to die with dignity, has taken the view that Section 309 of the IPC requires reconsideration.
In 1984, Sachar expressed that the riots that engulfed parts of India caused him pain as akin to a dagger stabbing his heart. In the anti-Sikh riots of 1984, the doors of the High Court were knocked to challenge police atrocities and a sense of state-lawlessness. In the most passionate of ways and having always the objective of human rights in the forefront of his mind, he heard the matter. However, when Justice Sachar took a compassionate view towards the victims, the matter was transferred from his bench to another Division Bench, which ultimately dismissed the petition in the ‘national interest’. At the Justice/Insaaf–84 Conclave organised by Amnesty International in India on 23 June 2016, Justice Sachar commented on the 1984 riots: ‘Where we (the judiciary) have failed is at the top’.
However, he did not let this incident dissuade him or dent his vision. He stood down as a sitting judge to argue as a counsel. He espoused the cause of human rights and presented his cases with vigour and force.
Sachar, the Jurist
Sachar was at his core, a master of Constitutional law. A truly legal scholar guided by his heart, he advocated that the Fundamental Rights guaranteed by the Constitution should be enforced in letter and spirit. He was at the forefront in developing new rights intrinsic to an individual and persuaded the Courts in recognising them to be implicitly part of the Fundamental Rights.
He led the fight for privacy in the landmark telephone tapping case, 4 in which the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885, was being challenged. The foundation of Justice Sachar’s argument was placed on the right to privacy. Accepting his arguments, the Supreme Court recognised the need to provide procedural safeguards to ensure that the power of telephone tapping was not abused by state authorities.
Rajinder Sachar was a part of many other landmark judgements, too. Through the People’s Union for Civil Liberties (PUCL) he fought numerous public interest litigations on issues such as the mandatory declaration of assets by politicians and declaration of criminal antecedents by Members of Parliament and Members of Legislative Assemblies. He also brought out the concept of ‘None of the Above’ (NOTA) in the Indian electoral law reforms, wherein, an individual may choose not to vote for any of the political candidates and thereby express his dissatisfaction regarding political representation. He also challenged the Prevention of Terrorism Act as ultra vires of the Constitution and for being draconian.
These judgements are continuously referred to by the Supreme Court even today while it adjucates on contemporary landmark judgements. These judgements form part of a continuing discourse on developing new concepts of human rights in India. Recently, the nine-judge Constitutional Bench in the letter’s petition of Justice K. S. Puttaswamy (Retd.), 5 extensively referred to the telephone tapping case in developing and recognising the right to privacy as intrinsic and fundamental.
The Sachar Committee
The Congress-led UPA government appointed Justice Sachar as the chairperson of a High Level Committee (HLC) to study the social, economic and educational status of the Muslim community of India. This subsequent detailed report highlighted that the minority class was severely under-represented in public service and the various wings of Indian democracy, including the police, defence and military, as well as in the political spectrum.
This HLC is now commonly referred to as the Sachar Committee. Justice Sachar had a wealth of resources at his disposal, including information from various censuses, the database of the National Sample Survey Organisation and the data collected from the central and state government which he used to compile this report.
However, Justice Sachar believed in the value of grassroot investigation as well. He felt that sitting behind a desk, compiling information and preparing a report from there would neither serve the purpose nor the cause. Hence, the members of the committee visited various parts of the country to gain an experiential and ground level understanding of the situation, condition and plight of Muslim minorities. The committee also investigated how the Muslim community was perceived by other communities and religions in the local areas. The approach of the committee was holistic and far-reaching.
This landmark 403-page report in 2007 culminated in outlining several recommendations for implementation. The main recommendations of the committee, to be implemented within ten years from the report were:
Constituting an Equal Opportunity Commission to look into grievances of deprived groups such as minorities in public bodies. Establishing a nomination procedure to increase participation of minorities in public bodies. Creating a delimitation procedure which does not reserve constituencies with a high minority population for Scheduled Caste. Establish mechanisms to link madrasas
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with higher secondary school boards. Improve the employment share of Muslims. Recognise degrees offered by madrasas in defence, civil and banking examinations. Create a national data bank where all relevant data for various socio-religious communities are maintained. UGC should evolve a system where part of the allocation to colleges and universities is linked to the diversity of the student population.
However ironically, while the government of the day was enthusiastic about forming the committee, it was conversely unenthusiastic in implementing its recommendations. Thus, the next phase of Justice Sachar’s career was to actively persuade the administration for the implementation of the committee’s recommendations.
As he said, ‘The Preamble of the Constitution determines the policies and programmes that any government makes’. His understanding of ‘secularism’ was different. For him, the term did not mean that the nation was irreligious. Rather, his view was that secularism is a condition when ‘every religion, every path is the same in the eyes of the State’.
End Note
Recently, the PUCL has come out with a collation of its landmark judgements in Taking Human Rights Forward edited by Adv. Sanjay Parikh with a preface by Justice Rajindar Sachar.