Sixteen Stormy Days
Page 6
Mookerji had been a Hindu Mahasabha leader and was ideologically opposed to the Congress vision. Neogy was from Bengal, acutely perceptive of public opinion in his home province and conscious of his own political compulsions. Their criticism could well be ignored by Nehru or dismissed out of hand as borne out of partisan politics or ideological commitments. But the accusations levelled by an ostensibly neutral figure like Matthai—a soft-spoken, academically inclined Syrian Christian from Kerala (whose nephew Verghese Kurien became the architect of India’s white revolution)—were much harder to shrug off.50 From the naval cruiser INS Delhi, aboard which he was vacationing, a wounded Nehru complained that his peaceful holiday at sea had been disturbed.51
With the press openly speculating on the prime minister’s authoritarian impulses and the clampdown on criticism of his Pakistan policy, and even private dissent within the Cabinet, the image of Nehru as an imperious figure averse to criticism and ideological challenge continued to gain ground. Bengali public opinion, already hostile, saw Matthai’s public utterances as further evidence of the prime minister’s duplicity.52 Having dealt with a bruising few months, Nehru himself continued to write about his frustration with the situation.53 And it was as these allegations and counter-allegations captivated major figures at the highest levels of the Union government that news of the decision of the Patna High Court striking down the Bihar Management of Estates and Tenures Act arrived. The judgment took the Congress establishment entirely by surprise.
Initially, there was bewilderment. This had not been thought possible. The legal foundations had been thoughtfully and intricately laid. After all, even within the Constituent Assembly, the impending task of land reform and the anticipated legal challenges had been discussed extensively by the subcommittee on fundamental rights when drafting the right to property into the chapter on fundamental rights to ensure constitutional support for zamindari abolition. It was for precisely this reason that Article 31, the right to property, had been drafted as a separate article, disassociated from the right to life and liberty.54 The matter was thought to have been closed. The judgment pulled the rug from under the government’s feet, and as it faced the prospect of further judicial challenge to its flagship policy, there was anxiety and consternation within its ranks.
For the Congress party as a whole, which had been committed to the policy since the 1930s, the judgment caused much embarrassment and humiliation. Zamindari abolition and land reform were the lynchpin of its social agenda, a policy on the basis of which it was going to approach the people for votes in the upcoming election. It had invested, and indeed continued to invest, enormous time and effort in its mass contact programme, and staked its prestige and reputation on the outcome. Across the country, its leaders and workers were going from village to village, informing people about their much-touted land reform programme and promising a social revolution. Even the state machinery had been co-opted. From district presidents like Raghubir Singh to senior cabinet ministers like C.B. Gupta,55 right up to the all-powerful high command, thousands had put their stature and influence on the line. They had proclaimed the end of the old order and the inevitability of zamindari abolition. The party’s hegemonic standing had lent their words an aura of invincibility. The shock judicial defeat, even before the major tasks of their land reform agenda had begun in earnest, thus felt like a metaphoric slap on the party’s face. It was a blow to its standing.
The court’s decision put Congress workers and leaders, still traversing UP and Bihar rousing the people to their cause, in a peculiar position. The Uttar Pradesh bill was yet to be passed. The Bihar bill waited for a presidential nod. Zamindari abolition and acquisition had not even properly started. With all the influence and power that their word represented, they had guaranteed the redistribution of land. And now, the entire programme had become open to question. The air of certainty evaporated. The halo of authority around the words of senior figures began to dissipate. Zamindari acquisition and redistribution could no longer be assumed to be a foregone conclusion. How would this situation be explained to the public? How were they to be told that the words of Congress leaders were not infallible?
The Bihar government, led by Sri Krishna Sinha, reacted with panic and fury. Revenue Minister Krishna Ballabh Sahay,56 livid at being thwarted by the courts, came up with an audacious new plan—‘a bombshell to the zamindars’—to use the Cess Act to temporarily take over estates that had fallen into cess arrears over Rs 15,000.57 In large sections of the provincial Congress unit, where the mood was virulently angry, there was a strong backlash against the Constitution. The Bihar government fully agreed with their view—Congress policies and commitments were non-negotiable, Constitution or no Constitution. They looked to their national leaders for action.
‘As the Indian Constitution has been found to be the stumbling block in implementing the Congress manifesto to abolish zamindaris in a peaceful manner,’ the Times of India reported on 10 June, ‘the Bihar Government, it is learnt, will approach the Indian Parliament to amend the Constitution.’58 It was the first public expression of the desire within certain powerful sections of the Congress to amend the Constitution, the first public acknowledgement of the opinion that the Congress manifesto and its social policies trumped the constitution and constitutional freedoms, the first ever description of the Constitution as a stumbling block on the Congress-directed road to progress.
Barely four months into the new republic, the Bihar government and its leading figures became the first ones to publicly demand that the Constitution be subordinated to the Congress party’s social agenda. Suspicions about Congress’s commitment to the Constitution, which had so far remained a matter of private conjecture or the subject of an occasional hint by the Opposition, appeared to be vindicated. Perhaps sensing the mood from faraway Kerala, where he was on an official trip, Union Law Minister B.R. Ambedkar cautiously reminded his colleagues that on their observance of constitutional morality depended the success of the new republic’s experiment in parliamentary democracy.59 Few, it seemed, wanted to listen.
For their part, the zamindars in Bihar attempted to extend an olive branch, announcing that they did not want to put up obstacles in the way of the government’s attempt to improve economic conditions, if it only approached the issue with a generosity of spirit—in the manner that Sardar Patel had settled the issues of the princes. The leader of the zamindars, Maharaja Kameshwar Singh of Darbhanga, stated that ‘he was anxious to cooperate with the government in improving the existing land system and implementing the Congress manifesto, if the government discussed the problem in an imaginative manner and gave the zamindars a fair deal’.60 ‘It is for the judiciary alone to examine the laws and determine how far they are consistent with fundamental rights,’ an editorial chimed in. ‘It may be a cumbrous process, but it is inevitable.’61
The Bihar Congress, embarrassed and vengeful, was however in no mood for any sort of compromise. The zamindars might have won this round, but the bigger blow of abolition and acquisition was yet to come. Over June and July, as the government was forced to return the estates it had taken over,62 it strenuously urged the Cabinet and the president to give immediate assent to the Bihar Land Reforms Bill.63 An alarmed Central government, well aware that it was navigating a constitutional minefield and reluctant to rush into another debacle, parried the thrust by appointing a special committee of the Cabinet to examine the bill and the issue of compensation.64
In Lucknow, where the Land Reform Bill was still being debated in the assembly, a circumspect Charan Singh assured landholders that the Uttar Pradesh government would pay compensation for the abolition of zamindaris, and in one lump sum if possible.65 With the Reserve Bank of India (RBI) estimating the zamindari abolition bill to come up to Rs 414 crore, the probability of this actually happening ranged from negligible to non-existent.66 The mood was equally sombre. Nevertheless, when the assembly reconvened in July after a recess, the slow, tiresome process was accelerated in an attem
pt to pass the legislation as fast as possible. One particularly productive day, the assembly passed seventy-two clauses of the mammoth bill.67
The Congress party’s socialist challengers, raging at what they saw as unjustified delay in the destruction of the old order, raised the temperature by publicly describing the Constitution ‘as a clumsy document that cannot be an instrument of full and complete democracy’.68 Jayaprakash Narayan, who till then had been reprimanding the prime minister for disrespecting the Constitution and endangering democracy, now passionately stated, ‘Left to myself, I would go to the extent of saying that the Constitution should be scrapped and a new one drafted.’69
In Delhi, shockwaves rippled through the corridors of power. ‘It seems partly because of the Constitution and partly because of the lawyer’s opinions and High Court judgments, we have got into a bad tangle,’ Pandit Nehru wrote to the home ministry, ‘ . . . I am quite certain that unless we find a quick way out to deal with the agrarian problems in Bihar and elsewhere, we shall be in serious trouble.’70 In his note, he plainly and precisely delineated his problem:
Having for long proclaimed as a major point in our policy the abolition of the zamindari system and having repeatedly made attempts to do so and raised expectations high, we just cannot, on either moral or practical grounds or even on the basis of legal difficulty, stop this process or delay it . . . I feel therefore that it is not quite enough for us to accept with resignation the legal difficulties that are pointed out to us, but to find some way out fairly quickly which enables our state governments to deal adequately with their problem of abolishing the zamindari system. If necessary, the matter might have to be put up before Parliament.71
Spooked by the issue’s potential to trigger a political earthquake, the prime minister was clearly flustered and blamed the Constitution for his problems. He had provided the ideological force and moral leadership for the government’s land reform drive. If the unthinkable happened and public expectations were belied, who would shoulder the blame? The fear of lengthy legal battles over land reform and the possibility of further judicial defeats made the government and the prime minister jittery. The question occupying centre stage however, was just one. How to act within the bounds of the Constitution when it was pitted against the party’s manifesto? Which of the two was paramount? What was the way out?
The court’s answer had been unequivocal. The prime minister was still pondering the question and weighing his options. Several thousand miles away in Tamil Nadu, meanwhile, where a plucky woman named Champakam Dorairajan had taken the provincial government to court, another pivotal case was heading towards conclusion. And in the tussle between the state and the Constitution, another front was about to be opened in Madras.
Battle ordinaire
Much before backward caste assertion and social justice politics had become a trend in northern India, Madras had been known as the land of social reform and social justice. Social justice politics in Madras had been pioneered by the Justice Party, the forerunner of today’s Dravida Munnetra Kazhagam (DMK), which had ruled the province and dominated politics for significant periods in the 1920s and 1930s. From the Justice Party was born the Self-Respect Movement under the leadership of E.V. Ramasamy Periyar, which challenged the dominance of Brahmins and the prevalence of caste-based discrimination in Tamil society. In the 1940s, the Justice Party transformed itself into the Dravidar Kazhagam (DK) under Periyar’s leadership and began a vehement fight for social reform, the rights of backward classes, the promotion of ‘rationalism’ and the negation of a Hindi or Aryan-influenced identity.72
Questions of caste and communal representation had been critical to the political philosophy of the Justice Party, and remained so for Tamil politics as a whole. Experiments with using reservations to challenge the caste order and push back against the marginalization of backward castes had begun as early as 1921, when the first Justice Party ministry had taken charge in the Madras province and instituted the first Communal General Order, creating reservations in government departments and in educational institutions to ‘prevent the over representation of students belonging to a particular community’ and secure the advancement of non-Brahmins in the face of Brahmin monopoly in education, professions and government service.73
The Communal GO, as it came to be called, was a rather intricate device for achieving this objective. Out of every thirteen, it strictly reserved seats for students and applicants from six categories in the following ratio: Non-Brahmin Hindus—5, Mohammedans—2, Anglo-Indians—2, Indian Christians—2, Brahmins—1, Other Depressed Classes—1. Since no one from one group could occupy a seat that belonged to another group, the GO achieved two things at the same time: it reserved a certain number of seats for particular categories and at the same time restricted the applicants from those categories to that arbitrarily fixed number. So, for example, out of every thirteen applicants, five positions were reserved for ‘Non-Brahmin Hindus’—but this was also the maximum number of positions they could occupy. Brahmins competed with other Brahmins for the lone position in their category. In other words, there was stringently enforced and rigid community-wise distribution of seats in universities and appointments in government departments.
Reservations as an administrative tool and a radical politics based on securing greater representation for backward class and marginalized groups in the state apparatus, as well as a great push for ‘de-Brahminization’, thus formed an enduring legacy in Tamil politics, a legacy that profoundly shaped the electoral arena and was impossible to ignore even when the Congress replaced the Justice Party in the 1940s. The Communal GO itself went through a number of iterations over the 1920s and 1930s and reached its final iteration in 1948 under the Congress government of O.P. Ramaswamy Reddiyar. In this last iteration, the ratio for every fourteen applicants stood at: Non-Brahmin Hindus—6; Brahmins—2; Muslims—1; Anglo-Indians, Christians and Europeans—1; Others—2, Harijans—2. It was this iteration that was being followed when the dispute erupted.
Once the Constitution of India had come into force, the legal and constitutional validity of the Communal GO immediately came under a cloud. At a glance, its provisions seemed obviously incompatible with the fundamental right of freedom from discrimination enshrined in Article 15 and the fundamental right of not being denied admission to a state institution on caste grounds enshrined in Article 29 of the Constitution, even with the proviso that this would not prevent the state from making special provisions for backward classes. It was, in constitutional terms, a sitting duck. Few, however, paid much attention until 7 June 1950 when, just as the country woke up to the shock judicial defeat for the government in Bihar, two students, Champakam Dorairajan and C.R. Srinivasan, approached the Madras High Court to file petitions praying for writs of mandamus.
Champakam Dorairajan was a middle-aged woman from Madras who had graduated from the University of Madras in 1934 and had decided to attempt to gain admission to the Government Medical College in Madras. She discovered that she had little chance of actually securing admission to the college MBBS programme because admissions were strictly regulated according to the ratio set out in the Communal GO.74 Since she was a Brahmin, the number of seats available to her to apply for was necessarily limited and the qualifying marks required were necessarily higher. C.R. Srinivasan, a young student who had just cleared his intermediate examinations and applied for admission to the Government Engineering College at Guindy, faced a similar predicament. He found that since admissions were governed by the terms of the Communal GO and granted according to communal proportions, there was little chance of his application being considered on its merits, ignoring considerations of caste, race or religion. Both were scandalized and infuriated by what they perceived as completely unjustified discrimination.
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In their petitions—one filed on 6 June and the other on 13 June75—both petitioners contended that the Communal GO was an infringement of their fundamental rights, and inconsistent w
ith the provisions of the Constitution. The order, they asserted, violated both Article 15 (1) of the Constitution of India, which guaranteed that ‘the state shall not discriminate against any citizens on grounds only of religion, race, caste, sex, place of birth or any of them’, and Article 29 (2), which guaranteed that ‘no citizen shall be denied admission into any educational institutions maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them’.76 All that they wanted, they prayed to the court, was for their applications to be considered on their merits, without taking into consideration their religion, caste or sex.77
This small, inoffensive prayer from two aspiring students raised one of the most profound questions for the Indian republic. In it lay the genesis of a political fault line that endures to this day. As the first legal challenge to the idea of reservations and the first one to consider the relationship between the Constitution and social justice, the case—as Justice Basheer Ahmed Sayeed observed while accepting the petition—‘involved issues of supreme importance to the future well-being of the state’.78 Whether the Communal GO was ‘discrimination or not will have to be decided once and for all,’ reported the Times of India.79 The future of reservations, indeed the future of the government’s vision of affirmative action, was at stake.