In court, the petitioners were energetically represented by Alladi Krishnaswamy Aiyyar, a noted lawyer who had been one of the key architects of the new Constitution, and as a member of nine committees in the erstwhile Constituent Assembly, was intimately aware of the nuances involved. Aiyyar argued that the right granted by Article 29 (2) of the constitution, which in unequivocal terms prevented any discrimination in the matter of admissions to state or state-aided institutions, was an individual right personally granted to each citizen. It could not be sidestepped by granting restricted community-based opportunities, it was not a right granted to people as members of a particular caste or religion. It did not matter if other Brahmins had been admitted. The petitioners asked for their rights as Indian citizens, not their rights as Brahmins. There was no proviso that allowed for special provisions for backward classes in contravention of this article, as there was in Article 16, which prevented discrimination in the matter of appointments under the state. Marks may not be the one and only criterion to decide on admissions, he stated, but then neither could religion, race or caste be the basis of selection, even if the government wanted to support backward sections of society.
The Madras government did not deny that it was following discriminatory practices. Instead, it sought to justify such discrimination on the grounds of public policy and the need for social justice. It rested its arguments on the view that under Article 46 of the Constitution—a directive principle of state policy that enjoined the state to promote the welfare of the weaker sections of society—the state was bound to promote with special care the educational interests of the weaker sections of the people, and that it had sole discretion to decide who these people were. As a result of applying the ratio prescribed by the Communal GO, seventy-seven Brahmins, 224 non-Brahmins, fifty-one Christians, twenty-six Muslims and twenty-six Harijans had been selected for admission to engineering colleges. If caste and community considerations had been ignored, the numbers would have been 249 Brahmins, 112 non-Brahmins, twenty-two Christians, three Muslims and zero Harijans. To avoid such a situation, the state argued, classification and discrimination on the basis of class and community was imperative.
As the Madras High Court examined the virtues of the arguments presented over June and July, the question generated intense passions among ordinary people, especially amongst those who felt they had been wronged by the Communal GO.80 With the issues at stake touching on the lived experiences and aspirations of many young people, several letters made their way to newspaper offices, giving voice to the strong opinions against the government’s stand.
‘The pursuit of a strictly communal policy . . . by the Justice Ministry was violently criticized by the then south Indian Congress giants,’ wrote an angry man named S. Krishnaswamy, ‘but when the Congress came to power, not only were all these measures given a permanent place in the statute book, but also all intelligent opposition to them was crushed by an iron hand.’81 The communal policy the Congress was following was suicidal, one letter lamented, and not a word of protest had been uttered by supposedly responsible Congress leaders.82 ‘The poison of communalism which . . . has been sedulously developed by Government patronage resulted in the Madras Government restricting admissions of Brahmins in appointments and in colleges,’ charged another, arguing that Brahmin preponderance in education was because they had taken to modern education early under British rule.83
‘The governments of the various states constituting the republic should . . . give preference to those who are non-communal and non-provincial in their outlook,’ advised a citizen from Bombay.84 In Ootacamund, the state’s finance minister mounted a public defence of the Communal GO, stressing that the advanced communities in the state could afford to make some sacrifices for their less advanced brethren.85 The effect of the order ‘is not some sacrifice, but almost total effacement,’ promptly retorted a major newspaper, observing that the ‘road of communal rationing may be short, but it is full of pits.’86 The only way Article 46 could be interpreted, it maintained, was the provision of free tuition, free books and free lodging and boarding.
On 27 July, a three-judge bench of the Madras High Court pronounced its verdict. It found that grounds of religion, race and caste could not be the basis for admissions, and hence the Communal General Order violated Articles 15(1) and 29(2) of the Constitution and constituted a form of discrimination.87 This was especially true in case of Article 29, which prohibited discrimination in admissions to state-funded educational institutions, since there was no provision for a contravention of the article to create reservations. The court was vociferous in its condemnation, stating:
The Communal GO denies equal treatment for all citizens under like circumstances and conditions, both in the privileges conferred and disabilities imposed . . . (it) shuts out students having high qualifications solely on the grounds of their caste or religion and lets in others with inferior qualifications on the same ground . . . As the articles of the Constitution stand at present, it is difficult to see how the state can make discrimination between applicant and applicant on the grounds of religion or caste, and restrict the number of seats that could be secured by applicants of any particular religion or caste, or prescribe different qualifications to applicants of different religions or castes to the advantage of some and the disadvantage of others . . . Does social justice or the welfare of the state require a suppression of the integrity and freedom of the individual personality of the citizen by reason of his belonging to a particular caste? . . . Is the lynch spirit having its roots in caste and colour and religious differences to be fostered and recognized as state policy?88
The Communal General Order, and the broader policy of reservations, was shot down. Shot down also was the government’s reference to the Directive Principles of State Policy. Directive principles were clearly and apparently subordinate to fundamental rights, the court categorically declared, and something prohibited by fundamental rights provisions in Part III of the Constitution could not be introduced through the back door using the directive principles in Part IV. In the court’s eyes, if the absence of reservations denied opportunities to backward communities and perpetuated social injustice, then the only real satisfactory solution would be to provide adequate facilities to all applicants.89
In a nutshell, the court had articulated three firm, unambiguous principles. First, that the directive principles were subordinate to the provisions for fundamental rights, and could not be used to suborn the individual freedom that the Constitution granted. Second, that no matter how altruistic the intention and how noble the cause, the government had to function within the bounds of the Constitution—and fundamental rights were inviolable, except in conformity with the Constitution itself. Third, that the Constitution, after much thought and deliberation, had been framed in a particular way, and even if it reversed previous administrative principles or widely prevalent practices, constitutional provisions had to be upheld. As one of the judges pointedly observed, a vague and undefined principle of social justice could not and did not justify a refusal to obey a plain command of the Constitution by which the legislature, the executive and the judiciary alike were bound.90
In the end, the judges were scathing in their critique of the government’s views, sarcastically noting:
If the person in-charge for the time being of a state, elected no doubt by a majority of voters at the polls, were free to enforce their own notions of social and economic justice unfettered by constitutional restraints, there is a possibility of serious and undeserved hardship and injury to large classes of citizens . . . Declaration of a guaranteed right in Article 15(1) of the Constitution would be worthless if the government could disregard or nullify it by executive acts like the Communal GO . . . (it) would become an empty bauble if the Communal GO regulating admission of students were held to be legal and constitutional.91
Another pillar of the Congress party’s social agenda had fallen, raising as many searching questions as it answered. Unlik
e the judgment in Bihar, where the major battle was yet to come, the Madras High Court had effectively taken a wrecking ball to what was an article of faith for much of the Congress. In Madras, there were strikes and agitations as backward class students demanded that the Communal GO be retained and the high court ruling reversed.92 Flustered members of the Congress Legislative Party demanded an emergency meeting of the party to consider the court’s ruling and appealed to the Government of India for intervention.93
A panic-stricken but nevertheless still combative Madras government immediately declared that they would appeal against the decision in the Supreme Court.94 And of course, another judicial battle would be fought, and perhaps even won; the government and the Congress were guarded but hopeful. The one question on everyone’s lips, however, was: What now? What if the next judicial battle was also lost? Two weeks later in the Madras Legislative Assembly, state law minister K. Madhava Menon provided a tantalizing answer. ‘No particular reservations would be made regarding education,’ he stated, and ‘the question of an amendment to the Constitution would arise after a definite decision had been reached in the matter’.95
Resolves harden
The news from Madras was greeted with dismay and disbelief in Delhi. It was an even bigger blow than what had transpired in Bihar. Land reform and social justice through reservations had been two central pillars of the Congress agenda. One was now under threat; the other had just been effectively demolished. An article of faith had just been violated. Even though the defeat wasn’t final and an appeal to the Supreme Court was being contemplated, the very fact that such a key part of Congress policy, an indispensable component of its social agenda, had outright failed the test of constitutionality caused disquiet and outrage among senior figures.
The court had demonstrated in clear-cut terms the primacy of the Constitution over political and bureaucratic power. It had enunciated a crucial dictum—that transgressions of fundamental rights in the pursuit of government policy, however positive, were explicitly forbidden. Article 15(1) guaranteeing freedom from discrimination was paramount; not only were considerations of caste or religion irrelevant, they were expressly taboo. They could not be factors under consideration, even if—through fortuitous circumstances—doing so advantaged certain people over others. Where qualifications and standards were to be prescribed, they had to be reasonably relevant to their purpose and had to be the same for all citizens. Examination scores or physical fitness, for example, could be a qualification; religion or caste could not.
The judgment was a powerful and expansive articulation of a new republican vision and an equally powerful indictment of government policy. In what it believed to be the underlying egalitarian spirit of the Constitution, the Madras High Court sought to shut out and resolutely combat ‘the tendency to think in terms of caste, race or religion in adjusting relations between the citizen and the state’.96 The verdict embodied a thorough repudiation of the Congress vision and the government’s social agenda. Closely following the adverse judgment in Patna, the defeat in Madras put Congress leaders in a quandary. A flabbergasted party searched for a response.
For the Congress, the problem was twofold. The first was that both these issues—land reform and reservations—had been discussed extensively in the Constituent Assembly when the Constitution was drafted. The Constitution had been drafted keeping these issues and Congress policies in mind. It had been drafted by Congress leaders. It represented a social contract that enabled and reflected a particular vision of a political society. Now, when pitted against the Constitution, there was little room to manoeuvre. How to square this circle? The conundrum was neatly summed up by the press: ‘It becomes a matter for serious consideration when high-ranking leaders of the ruling party, which had an overwhelming majority in the Constituent Assembly, fail either to grasp the content of the Constitution or to respect its provisions. Law makers must in no case be themselves law breakers.’97
The second and bigger problem, as Nehru had stated in his note to the home ministry,98 was explaining the situation to the people. Having raised their expectations and asked them to believe in the promises of Congress leaders, how were they to now go back to them and explain legal and constitutional niceties? Who was going to tell the people that the word of the government and the prime minister was not the law, that there was now a greater power, the Constitution of India? And what might happen if they did? In the context of land reform and zamindari abolition—essential parts of the Congress policy and programme with which the prime minister was personally identified—these questions assumed added importance.
Already facing the heat in Bihar, uncomfortable with constitutional restraints and impatient with long-drawn legal and judicial procedures, Nehru had been mulling his options for some time. The news from Madras hardened his resolve. On 3 August, he wrote to his chief ministers:
High Courts sometimes intervene and declare state law as ultra vires. It is clear that we have got to go through this programme of abolition of zamindaris and to avoid all delay, for delay is dangerous. Unfortunately, the law and the Constitution sometimes come in the way. I think we could devise methods which are in conformity with the Constitution. It is certain that if the law comes in the way, ultimately the law will have to be changed.99
A full six months and six days since the new republic had been inaugurated, the prime minister was seriously contemplating, and making the case for, amending the Constitution because it was coming in his way; the very Constitution that he had once described as the foundation of the country’s republican freedom. Between the Constitution and his own political agenda, his faith in the latter clearly trumped his allegiance to the former.
As Congress figures in Madras demanded the intervention of the Government of India and the overturning of the verdict, shrewd observers quickly realized the gravity of the situation. ‘Such redress as they [the Congress party in Madras] want,’ the Times of India prophetically warned, ‘can come only through an amendment of the Constitution which in consequence will have to be modified in such other respects as would destroy its present democratic and secular character.’ ‘In this context,’ it added, ‘no purpose can be served even if the Supreme Court were to uphold the High Court’s verdict. Those who do not respect the High Court will not necessarily show deference to the Supreme Court.’100
Meanwhile in Uttar Pradesh, the final schedule of compensation to the Zamindari Abolition Bill had been passed on 28 July, guaranteeing uniform rates plus rehabilitation grants to smaller landholders.101 On 4 August, to rapturous applause and wide acclaim, the UP Legislative Assembly ‘accomplished the herculean task’ of passing the Zamindari Abolition Bill. Angry socialists, disappointed that the bill granted compensation to landholders, abstained from voting. Affecting over two million landholders, this was a major success for Chief Minister Govind Ballabh Pant, who described it as a peasant’s charter and an antidote to communism.102 The measure was greeted by jubilant headlines in the press, such as ‘Bhumidari Zindabad: UP Zamindari Abolition Bill Passed’103 and ‘UP’s Feudal Order Being Changed.’104
But, as had been noticed by keen observers as early as 30 June, ‘the hilarious optimism which marked the first stages of UP’s Zamindari Abolition drive’ had faded away.105 It had been replaced by a potent combination of fear, apprehension and uncertainty. Jubilant headlines aside, both sides realized that another judicial contest loomed—and after the results in Bihar and Madras, no one could be sure about the outcome. The Bihar bill waited for a presidential assent. The UP bill made its way through the Legislative Council. The government and the zamindars, big and small, sharpened their legal swords and prepared for the upcoming battle.
3
The Deepening Crisis
A gradual escalation
On 15 August 1950, the Times of India surveyed the state of the nation, and found little to cheer about. It observed:
The third year of independence saw this country sink deeper in the economic morass sur
rounding her since the end of the war. The National Government’s struggle to pull her out of it has proved ineffective and exposed its inability, even incompetence, to tackle an abnormal economic situation. All of its other achievements . . . will fail to impress the common people who only know that life is becoming more difficult for them than ever before even under ‘independence’. . . The same incompetence has marked the administration’s handling of other problems during the year.1
It had been a year wracked by a turbulent relationship with Pakistan, persistent communal conflict and refugee influx in Bengal, spiralling prices and food shortages, and high-profile ministerial resignations. But even amid this gloom, the writer noted one bright spot, the most important set of events in the political arena: the inauguration of the republic and ‘the beginning of an assertion of fundamental rights guaranteed by the Constitution as a result of judgments given by the High Courts and the Supreme Court’.2 If ‘constitutions mark transformations of polity and codify moments of revolutionary change’—in the words of the legal historian Rohit De3—then the first six months of the new republic truly represented a metamorphosis in the nature of public life in India. And yet, even as the press pointed towards these developments—the ability of the Indian people to use the constitution to hold the state to account for its sovereign guarantees and the role of the courts in ensuring a vigorous defence of constitutionalism—as a singularly important silver lining in a challenging year, others saw in them the origins of frustration and difficulty.
Sixteen Stormy Days Page 7