"MY TAKE" on a SCHOLARLY / INFORMATIVE article by Sanjay Hegde in The Hindu dated April 14, 2017
Subject: The LEAD article, “Courting
faith and reason” by Sanjay Hegde, The Hindu, April 14, 2017
While most
scribes, commentators are busy, once again and rightly so, EULOGISING the colossal ICON who was the Single Most Important person
behind the CREATION of our Constitution that converted India from being a SLAVE NATION SLAVE NATION that had been, only a few years earlier, freed
from the YOLK of the 200 years BRITISH rule, into a REMARKABLE Democratic,
Socialist and Secular Republic, one may be surprised to see an article from an
eminent Supreme Court Lawyer that has a CENTRAL THEME of CRITICISING B.R.
Ambedkar on one of several but minor FLAWS in our constitution that have been
brought to our notice by similarly eminent legal luminaries both from the Bar
as well as from the Judiciary from time to time.
Mr. Sanjay Hegde, in a way, is RIGHT in criticizing
Ambedkar too for allowing the inclusion
of “Cow/Calf/ Cattle protection as a DIRECTIVE PRINCIPLE in the constitution,
especially while trying , as if , to TRACE BACK the single most important ROOT
CAUSE for the present VIOLENCE and CHAOS
that have been unleashed on a YOUNG, just about 70 years old REPUBLIC of INDIA
, in the name of COW PROTECTION by the RIGHT WING FRINGE GROUPS who call
themselves as “Gau-Rakshak” on the pretext of their belief in the Cow as their “MOTHER”, while in reality
,most of them are LUMPEN ELEMENTS indulging in ILLEGAL VIGILANTISM and do so
because they now feel that they have a license for “OPEN EXTORTION” with the
LAW ENFORCERS turning a blind eye towards their RAMPAGING ESCAPADES and with
the present dispensation at the center that is OPENLY acting under the
influence of its IDEOLOGICAL MASTER, the RSS and with
even the RSS chief, giving a TACIT SUPPORT to such unlawful elements and
ONLY OFFERING LIP-SERVICE to the VICTIMS of such VIOLENT and BARBARIC
VIGILANTISM that has left at least 10 or even more MUSLIM CATTLE TRADERS dead
since the first casualty two years ago ,of
Akhlaque of Dadri near Delhi.
However, as he begins his article and quite early in it,
after establishing the Phenomenon of “Normalisation of Deviance”( attributed as
the ROOT CAUSE for the NEGLIGENCE during design of an O-ring that had resulted
in the Challenger space shuttle’s mid-flight
explosion killing all seven astronauts abroad), he unleashes his “TEMP-PLATE”
to any how CRITICISE Dr. B.R Ambedkar as the single MOST RESPONSIBLE person for
“Cow Protection Clause Fiasco in the Directive Principles of the
Constitution" and I quote the
excerpt;
While making B.R. Ambedkar the single most responsible
person in the Constituent Assembly for this “Cow –Protection Fiasco” in the
directive principle”, just because he was HEADING the Assembly, Mr. Hegde
FORGETS that he was after all a “ Dalit” by Caste who was FIGHTING against great ODDS to obtain
GREATER FOCUS of deliberations of the Assembly
on the pernicious and INHUMAN PRACTICE of “ UN-TOUCABILITY against his
own community” and to ENSURE that it
TRULY GOT ABOLISHED with CRIMINAL CLAUSES
imposed on its PRACTITIONERS to ensure a REAL and LASTING BLOW against
that inhuman practice that also had various shades of the practice of “APARTHEID against the Blacks
in South Africa” and hence he had to COMPROMISE when FACED with the stubborn
UPPER-CASTE ,or to be blunt, Brahmanical, demand for this clause’s insertion
amongst the Directive Principles of the Constitution. Mr. Hegde should have recalled
the still earlier COMPROMISE that B. R. Ambedkar was forced to make by the
STUBBORN RIGIDITY of Mahatma Gandhi through a Fast unto Death, that had forced
Dr. Ambedkar to reluctantly, sign the FAMOUS ( and - quite infamous amongst the
DALITS for all times to come!)POONA –
PACT under VISIBLE duress.
( Ref: 'The Poona Pact' refers to an agreement between Dr.
Babasaheb Ambedkar and Mahatma Gandhi signed on 24 September 1932 at Yerwada
Central Jail in Pune, India. It was signed by Pandit Madan Mohan Malviya and
Dr. Babasaheb Ambedkar and some other leaders to break the fast unto death
undertaken by Gandhi in Yerwada prison to annul the MacDonald Award giving
separate electorates to Dalits for electing members of state legislative
assemblies in British India.)
So, to conclude, I feel that Mr. Hegde, and quite
uncharacteristically so, has definitely erred ,to single out Dr. B.R Ambedkar,
for what he now considers as a Fiasco of “Cow Protection Clause entering into
the Directive Principles of the Indian Constitution”, since there were many
other tall and eminent members in the Constituent assembly,(and mainly
some RIGHT-WING SYMPATHIZERS amongst the
CONGRESS), who did ARM-TWIST Dr. Ambedkar for this FIASCO, occupying, as they
did, a position of strength, by virtue of belonging to the UPPER CASTES among
the majority Hindus and were in fact, and truly, the GUILTY PARTY, for ensuring
that this , what has ended up as a TIME-BOMB-
the “Cow Protection Clause within the Directive Principles of the Indian Constitution”
.
Shahabuddin Nadeem,
Now the EXCERPTS of the article are provided in the following for READY READING /Reference
How religious belief disguised as an economic principle changed the original intent of Ambedkar’s Constitution
The Challenger space shuttle exploded in 1986, killing all seven crew members. It occurred because of a design flaw in the rocket boosters of the spacecraft. The U.S. National Aeronautics and Space Administration (NASA) had sub-contracted the design of the boosters to an independent company. The company had noticed that the putty used to seal rings on the boosters was forming bubbles that caused a heat jet so hot that it could burn through the rings. The engineers changed the putty. They knew that a putty erosion could still occur, but with very low probability of a catastrophic disaster. Unfortunately for the seven who perished, in a series of small steps NASA deviated from its safety standards and determined that the erosion of the putty was an acceptable risk of flight.
Later, NASA commissioned many inquiries into the cause of the disaster. The most insightful report came from Diane Vaughan, then a teacher of sociology at Boston College, who attributed the disaster to what she called a “normalisation of deviance”. The phrase meant that “people within the organisation become so much accustomed to a deviant behaviour that they don't consider it as deviant, despite the fact that they far exceed their own rules for the elementary safety”.
Today on B.R. Ambedkar’s 126th birth anniversary, violence over cow slaughter threatens to rend apart the Republic and his magnificent Constitution which gave us a secular country with a fundamental right to life and liberty assured to every citizen. How did the body politic slowly deviate so much so that a man’s choice of meat has become his poison? It is time to recount Ambedkar’s normalisation of deviance in the Constituent Assembly on the question of cow protection. That deviance emboldened the Supreme Court decades later to take a position that would have been an abomination to men like Ambedkar.
The Challenger space shuttle exploded in 1986, killing all seven crew members. It occurred because of a design flaw in the rocket boosters of the spacecraft. The U.S. National Aeronautics and Space Administration (NASA) had sub-contracted the design of the boosters to an independent company. The company had noticed that the putty used to seal rings on the boosters was forming bubbles that caused a heat jet so hot that it could burn through the rings. The engineers changed the putty. They knew that a putty erosion could still occur, but with very low probability of a catastrophic disaster. Unfortunately for the seven who perished, in a series of small steps NASA deviated from its safety standards and determined that the erosion of the putty was an acceptable risk of flight.
Later, NASA commissioned many inquiries into the cause of the disaster. The most insightful report came from Diane Vaughan, then a teacher of sociology at Boston College, who attributed the disaster to what she called a “normalisation of deviance”. The phrase meant that “people within the organisation become so much accustomed to a deviant behaviour that they don't consider it as deviant, despite the fact that they far exceed their own rules for the elementary safety”.
Today on B.R. Ambedkar’s 126th birth anniversary, violence over cow slaughter threatens to rend apart the Republic and his magnificent Constitution which gave us a secular country with a fundamental right to life and liberty assured to every citizen. How did the body politic slowly deviate so much so that a man’s choice of meat has become his poison? It is time to recount Ambedkar’s normalisation of deviance in the Constituent Assembly on the question of cow protection. That deviance emboldened the Supreme Court decades later to take a position that would have been an abomination to men like Ambedkar.
Political and pragmatic
In 1948 Ambedkar published his book The Untouchables: Who Were They and Why They Became Untouchables? He wrote: “In the first place, we have the fact that the Untouchables or the main communities which compose them eat the dead cow and those who eat the dead cow are tainted with untouchability and no others. The co-relation between untouchability and the use of the dead cow is so great and so close that the thesis that it is the root of untouchability seems to be incontrovertible. In the second place if there is anything that separates the Untouchables from the Hindus, it is beef-eating.” He went on to say: “The reason why Broken Men only became Untouchables was because in addition to being Buddhists they retained their habit of beef-eating which gave additional ground for offence to the Brahmins to carry their new-found love and reverence to the cow to its logical conclusion.”
However, in the Constituent Assembly debates around the same time, Ambedkar was not as vocal against ‘cow reverers’. In February 1948, the first draft of the Constitution was placed before the Assembly. It contained no reference to cow slaughter. The cow protection brigade within the Assembly pushed for an amendment seeking for cow protection as a fundamental right. Ambedkar and his team of draftsmen came up with a constitutional compromise.
A directive principle, seemingly based on economic and scientific grounds, was allowed to be introduced by Pandit Thakurdas Bhargava, a prosperous Brahmin lawyer from Hisar. It read: “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”
Despite his political stance outside the Constituent Assembly, within it Ambedkar said nothing substantial in the debates on cow slaughter, only that he accepted Bhargava’s amendment. Bhargava, however, emphasised his reluctant acceptance of the compromise when he said, “… for people like me and those that do not agree with the view of Ambedkar and others, this entails, in a way, a sort of sacrifice.”
Another cow proponent, Seth Govind Das, amplified Ambedkar’s lawyerly thinking in the matter. “I had then stated that just as the practice of untouchability was going to be declared an offence so also we should declare the slaughter of cows to be an offence. But it was said that while untouchability directly affected human beings, the slaughter of cows affected the life of animals only and that as fundamental rights were for human beings, this provision could not be included therein.”
In 1948 Ambedkar published his book The Untouchables: Who Were They and Why They Became Untouchables? He wrote: “In the first place, we have the fact that the Untouchables or the main communities which compose them eat the dead cow and those who eat the dead cow are tainted with untouchability and no others. The co-relation between untouchability and the use of the dead cow is so great and so close that the thesis that it is the root of untouchability seems to be incontrovertible. In the second place if there is anything that separates the Untouchables from the Hindus, it is beef-eating.” He went on to say: “The reason why Broken Men only became Untouchables was because in addition to being Buddhists they retained their habit of beef-eating which gave additional ground for offence to the Brahmins to carry their new-found love and reverence to the cow to its logical conclusion.”
However, in the Constituent Assembly debates around the same time, Ambedkar was not as vocal against ‘cow reverers’. In February 1948, the first draft of the Constitution was placed before the Assembly. It contained no reference to cow slaughter. The cow protection brigade within the Assembly pushed for an amendment seeking for cow protection as a fundamental right. Ambedkar and his team of draftsmen came up with a constitutional compromise.
A directive principle, seemingly based on economic and scientific grounds, was allowed to be introduced by Pandit Thakurdas Bhargava, a prosperous Brahmin lawyer from Hisar. It read: “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”
Despite his political stance outside the Constituent Assembly, within it Ambedkar said nothing substantial in the debates on cow slaughter, only that he accepted Bhargava’s amendment. Bhargava, however, emphasised his reluctant acceptance of the compromise when he said, “… for people like me and those that do not agree with the view of Ambedkar and others, this entails, in a way, a sort of sacrifice.”
Another cow proponent, Seth Govind Das, amplified Ambedkar’s lawyerly thinking in the matter. “I had then stated that just as the practice of untouchability was going to be declared an offence so also we should declare the slaughter of cows to be an offence. But it was said that while untouchability directly affected human beings, the slaughter of cows affected the life of animals only and that as fundamental rights were for human beings, this provision could not be included therein.”
The economic backdoor
Thus, though expressed in terms of economic policy, underlying this agreed amendment was the Assembly’s covert yielding, in a limited measure, to Hindu sentiments of cow protection. Protection ostensibly was restricted to cows and calves, milch cattle and those cattle capable of pulling heavy loads.
A bench of five judges of the Supreme Court in the 1959 case of Mohammed Hanif Quareshi v the State of Bihar strengthened the compromise when it did not uphold a complete ban on slaughter. Bhargava, appearing as an amicus in this matter, submitted that the directive principle of cow protection in Article 48 ought to have primacy over any fundamental right of the petitioners. Turning him down, the court said that “a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights”. The court finally concluded: “(i) a total ban on the slaughter of cows of all age and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with the directive principles laid down in Art. 48; (ii) a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid; and (iii) a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.”
This formulation held till 2005 when a seven-judge bench was constituted by Chief Justice R.C. Lahoti with five vegetarian judges on it. The resultant judgment had the Supreme Court — by a 6-1 majority — permitting State governments to impose total bans on cow slaughter. The reasoning was that “Times have changed; so have changed the social and economic needs… there is no escape from the conclusion that the protection conferred by impugned enactment on cow progeny is needed in the interest of Nation’s economy.” Justice A.K. Mathur dissented on the principle of stare decisis — that long-settled positions of law should not be easily reversed — adding, “There is no material change in ground realities warranting reversal of earlier decisions.”
Thus, though expressed in terms of economic policy, underlying this agreed amendment was the Assembly’s covert yielding, in a limited measure, to Hindu sentiments of cow protection. Protection ostensibly was restricted to cows and calves, milch cattle and those cattle capable of pulling heavy loads.
A bench of five judges of the Supreme Court in the 1959 case of Mohammed Hanif Quareshi v the State of Bihar strengthened the compromise when it did not uphold a complete ban on slaughter. Bhargava, appearing as an amicus in this matter, submitted that the directive principle of cow protection in Article 48 ought to have primacy over any fundamental right of the petitioners. Turning him down, the court said that “a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights”. The court finally concluded: “(i) a total ban on the slaughter of cows of all age and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with the directive principles laid down in Art. 48; (ii) a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid; and (iii) a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.”
This formulation held till 2005 when a seven-judge bench was constituted by Chief Justice R.C. Lahoti with five vegetarian judges on it. The resultant judgment had the Supreme Court — by a 6-1 majority — permitting State governments to impose total bans on cow slaughter. The reasoning was that “Times have changed; so have changed the social and economic needs… there is no escape from the conclusion that the protection conferred by impugned enactment on cow progeny is needed in the interest of Nation’s economy.” Justice A.K. Mathur dissented on the principle of stare decisis — that long-settled positions of law should not be easily reversed — adding, “There is no material change in ground realities warranting reversal of earlier decisions.”
Questions for our Republic
The questions that today haunt our Republic are — would the country not have been safer and better off had Ambedkar stuck to his first draft, which had no reference to cow slaughter at all? Did he allow a “normalisation of deviance” from the constitutional norm of secularism when he allowed a religious belief to be disguised as an economic principle? Has the Supreme Court done justice to the original intent of Ambedkar’s magnificent Constitution by reversing itself to keep up with political fashions of the day? A Challenger need not explode for us to realise that deviance into vigilantism can’t always be normalised.
Sanjay Hegde is a senior advocate of the Supreme Court
The questions that today haunt our Republic are — would the country not have been safer and better off had Ambedkar stuck to his first draft, which had no reference to cow slaughter at all? Did he allow a “normalisation of deviance” from the constitutional norm of secularism when he allowed a religious belief to be disguised as an economic principle? Has the Supreme Court done justice to the original intent of Ambedkar’s magnificent Constitution by reversing itself to keep up with political fashions of the day? A Challenger need not explode for us to realise that deviance into vigilantism can’t always be normalised.
Sanjay Hegde is a senior advocate of the Supreme Court
