In the then Madras Province of British India, the Communal G.O. that provided opportunities to the oppressed communities in the State Services and State educational institutions was implemented since 1928. Even after independence, the effect of the Communal G.O. was amplified by providing due representation to the various oppressed communities including the Backward Classes.
When the Indian Constitution came into effect since 26th January 1950, the Communal G.O. was challenged in the Madras High Court on the ground that the G.O. discriminate the citizens. Based on the arguments put forth from the petitioner side, the High Court held the Communal G.O. invalid. On appeal made by the State of Madras the Supreme Court upheld the verdict of the High Court despite the fact that the petitioner, a Brahmin lady had stated that she did not get the opportunity to pursue the medical degree course in the Government medical college. But the fact was that she did not apply for the course at all.
Thanthai Periyar started massive agitation in the Madras State and revolted against the verdict of the judiciary that denied social justice to the historically oppressed people who were denied of educational opportunities. The revolt with the support of the marginalized masses in multitude became unabated.
Recognising the justification of the revolt, Article 15(4) was inserted into the Indian Constitution through the First Amendment in 1951.
While debating over the issue and presenting the Amendment Bill at the floor of the Parliament, then Prime Minister Jawaharlal Nehru and the Law Minister Dr. B.R. Ambedkar narrated the purpose of the insertion of Article 15(4) thus.
The excerpts from their narration.
Law Minister Dr. B.R.Ambedkar: My view is that in Article 29 Clause (2), the most important word is ‘only’. No distinction shall be made on the ground only of race, religion or sex. The word ‘only’ is very important. It does not exclude any distinction being made on grounds other than those mentioned in this article and I respectfully submit that the word ‘only’ did not receive the same consideration which it ought to have received.
Then with regard to Article 16 Clause (4), my sub-mission is this that is really impossible to make any reservation which would not result in excluding somebody who has a caste. I think it has to be borne in mind and it is one of the fundamental principles which I believe is stated in Mulla’s last edition on the very first page that there is no Hindu who has not a caste. Every Hindu has a caste he is either a Brahmin or a Mahratta or a Kundby or a Kumbhar or a carpenter. There is no Hindu – that is the fundamental proposition who has not a caste. Consequently, if you make a reservation in favour of what are called backward classes which are nothing else but a collection of certain castes, those who are excluded are persons who belong to certain castes. Therefore, in the circumstances of this country, it is impossible to avoid reservation without excluding some people who have got a caste. On these points I do not think personally that the judgment is a very satisfactory judgment. In this connection I would like to state, notwithstanding what the House and some Members are saying, that I have often in the course of my practice told the presiding judge in very emphatic terms that I am bound to obey his judgment but I am not bound to respect it. That is the liberty which every lawyer enjoys in telling the judge that his judgment is wrong and I am not prepared to give up that liberty. I have always told the judges before whom I practised that that is my view of the matter. Now the point has to be borne in mind that in Article 46 of the Directive Principles an obligation has been laid upon the Government to do everything possible in order to promote the welfare and the interest of what are called the weaker sections of the public by which I understand to mean the backward classes or such other classes who are for the moment not able to stand on their legs – the scheduled castes and the scheduled tribes. It is therefore incumbent not merely on the Government but upon this Parliament to do everything in its hands to see that Article 46 is fulfilled and if that fulfillment is to come. I cannot see how one can escape an amendment so as to prevent Article 29 Clause (2) and Article 16 Clause (4) being interpreted in the way in which it has been interpreted and being made to block the advancement of the people who are spoken of as the weaker class. That is the necessity for amending Article 15.
Prime Minister Jawaharlal Nehru: Now I come to deal with those three specific Articles to which a great deal of argument has been attached. There is Article 15(2) or 15(4) as it is proposed to make it, that is to say, the clause which says that nothing in Article 15(2) or in Article 29(2) should come in the way of our making special provisions for certain groups or classes, etc. which are not defined exactly, but indicated there. I wonder if the House remembers that when I referred to this during the earlier stages of this Bill I mentioned that by an oversight the Bill as printed then had left out a small but rather important matter, that is, in clause relating to Article 15 we had said at that time in the printed Bill that nothing in Article 15(2) will come in the way, etc. What we had intended saying, in fact what we had decided to say was that “nothing in Article 15 or in Article 29(2)” but unfortunately owing to a slight error, the words “Article 29(2)” were left out. I mention this clearly merely to indicate that this was not an afterthought to include Article 29(2) because we had decided about it previous to putting it in the Bill. There were two views in regard to Article 29(2). It was the view of many eminent people that Article 29(2) in this particular context does not affect the matter at all. It does not come in the way at all, and yet, in another context Article 29(2) had been referred to and because of the certain doubt in people’s minds that although the best opinion was that it does not come in the way, nevertheless, there was a hesitation or doubt and we thought that that doubt should be removed.
Without going into the details of this Article or of the amendment proposed, I wish to say a few words about – shall I say-our basic ideas on this subject. Why have we done this and why has it been thought that these Articles come in the way of doing something that we wish to do? The House knows very well and there is no need for trying to hush it up, that this particular matter in this particular shape arose because of certain happenings in Madras. Because the Government of the State of Madras issued a G.O. – I do not know the details of it – by making certain reservations, etc. for certain classes or certain communities – rather for all communities – and the High Court of Madras said that this G.O. was not in order, was against the spirit or letter of the Constitution etc. I do not for an instant challenge the right of the High Court of Madras to pass that order. Indeed from a certain point of view it seems to me, if I may say so with all respect, that their argument was quite sound and valid. That is to say, if communities as such are brought into the picture, it does go against certain explicit or implied provisions of the Constitution. Nevertheless, while that is quite valid and we bow to the decision of the High Court of Madras in that matter, the fact remains that we have to deal with the situation where for a variety of causes for which the present generation is not to blame, the past has the responsibility, there are groups, classes, individuals, communities, if you like, who are backward. They are backward in many ways economically, socially, educationally; sometimes they are not backward if one of those respects and yet backward in another. The fact is therefore that of we wish to encourage them in regard to these matters, we have to do something special for them. We come up against this difficulty that we talk on the one hand in our Directive Principles of Policy of removing inequalities, in raising people up in every was socially, educationally, economically, reducing the distances which separate groups or classes of individuals from each other, we cannot separate them entirely, we cannot make a fool a wise man or make a wise man a fool, individuals are clever or not clever, individuals are tall or short, thin or fat and nobody tries to have similar rotundity either in the mind or body; but we do wish to give the same opportunities to everyone so that he can take full advantage of those opportunities and grow to the full stature as far as that stature allows it and if anything comes in the way of achieving this, we should remove that. It is not an easy matter, it is not a thing to be done quickly and suddenly when we have a vast population.
Yet, again, there is one Member who has pointed out in his minute of dissent that when we talk of people or groups as backward, whom are we thinking of. Because 80 per cent – I do not know what percentage it is – are backward in all these respects. That is perfectly true and yet we have to tackle the problem. It is no good saying that because 80 per cent are backward, so we must accept the position. We have to give to them opportunities – economic opportunities, educational opportunities and the like. Now in doing that we have been told that we come up against some provisions in the Constitution which rather lay down some principles of equality or some principles of non-discrimination etc. So we arrive at a peculiar tangle. We cannot have equality because in trying to attain equality we come up against some principles of equality. That is a very peculiar position. We cannot have equality because we cannot have non-discrimination because if you think in terms of giving a lift up to those who are down, you are somehow affecting the present status quo undoubtedly. Therefore you are said to be discriminating because you are affecting the present status quo. Therefore if this argument is correct, then we cannot make any major change in that respect because every change means a change in the status quo, whether economic or in any sphere of public or private activity. Whatever law you may make, you have to make some change somewhere. therefore we have to come to grips with this subject in some other way.
Take another very important approach of ours, that is, in our attempt gradually or rapidly to realize an egalitarian society or some society where these differences are not great, apart from national or physical differences, in our attempt to do that, we want to put an end to or try to put an end to all those infinite divisions that have grown up in our social life or in our social structure – we may call them by any name you like, the caste system or religious divisions etc. There are of course economic divisions but we realize them and we try to deal with them not always very satisfactorily. But in the structure that has grown up – quite apart from the religious point of view or the philosophical aspect of it – this is the structure of society with its vast numbers of fissures or divisions. Now, to get rid of that in order to build, not only to give opportunity to each individual in India to grow but also to build up a united nation where each individual does not think so much of his particular group or caste but thinks of the larger community – that is one of our objectives. On the other hand, while that may be our objective, the fact remains that there are these large numbers of divisions and fissures in our social life, though I think they are growing less. We are gradually obliterating all those hard and fast laws that divide them but nevertheless the process is slow and we cannot ignore the present. We cannot ignore existing facts. Therefore one has to keep a balance between the existing fact as we find it and the objective and ideal that we aim at. If we stick to the existing fact alone, then we are static and unchanging and we give up all the objectives we have or the Directive Principles of Policy that are laid down in the Constitution. That of course we cannot do, and must not do. On the other hand if we talk only about those Directive Principles, etc. ignoring existing facts, then we may talk logic and we may talk fine sense even in a way but it has no relation to facts and it becomes artificial, it becomes slightly adventurous and therefore not realistic enough.
So we have to find a middle way, that is in keeping with the objective or the ideal in view, taking steps which gradually carry us in that direction and yet not ignoring the existing facts with which we have to deal – we have to deal with them anyhow even if you have to deal with it in the sense of fighting against the existing situation.
These were the difficulties and the House will understand that in grappling with this problem one can lay emphasis on this aspect or that aspect of it, because both aspects are important and the real difficulty comes in finding a balance between the two. It is very easy to say to any Member that it is a simple problem which requires an aye or nay. This is good or that is bad. But normally the problems we have to face cannot be answered easily by ayes and nays. We have to consider them in the total context of things. We have to consider them in their relation to a hundred other things and thereby bring the ideal into some relation to the actual. These were the matters at the back of our minds as we discussed this matter from hour to hour in the Select Committee.
I think I may say with perfect truth that every single Member of the Select Committee recognised the desirability of giving these opportunities for growth to those who in any sense may be considered backward. There was no doubt in any Member’s mind but what some Members were afraid of in doing so was, might not this be abused, might this be utilised for the accentuation of the very class or communal divisions which have done us so much injury and which we have been trying to get rid of. This fact troubled and rightly troubled their minds as it must trouble the House and each one of us. So we tried to find a middle way and I submit that the wording we have adopted in this Article is more or less a successful way of meeting this difficulty and find the middle way.
You must have read an earlier paragraph in the report which says:
Some apprehensions have been expressed in respect to this amendment. The Select Committee is of the view that this provision is not likely to be, and cannot indeed be, misused by any Government for perpetuating any class discrimination against the spirit of the Constitution, or for treating non-backward classes as backward for the purpose of conferring privileges on them.
We have said so and we earnestly hope that if and when this provision is passed it will not be misused. Nobody can guarantee against misuse or some kind of special or undesirable use by any authority of any provision you may make. We can only try our best to create the conditions where this would not be so. What I wish to assure this House about is we are alive to the possibility of this kind of thing being used for a particular purpose to which we are opposed. And may I say also that when we talked with certain persons, including the Chief Minister of the Madras Government they also told us that they realised our difficulty, they appreciated it and they had no desire to function exactly in that way which people feared. So I would commend this particular amendment of Article 15 to the House.
Judicial Oath
During the rule of British colonial India, in Mayor’s Courts allowed ‘native’ Indian witnesses to swear their testimonies by all kinds of oaths. For example, Hindu witnesses were sometimes asked to swear an oath by touching the head of a cow, the feet of a Brahmin, or the Bhagwad Gita. The most common form of swearing oaths by Hindus was the Ganga Jal oath. A Hindu witness would have to hold a copper vessel containing a tulsi leaf and water from the holy Ganga river, and swear that the testimony he was about to give in court was true.
Source: ‘Republic of Religion – The Rise and Fall of Colonial Secularism in India’ by Abhinav Chandrachud –
page :160
………….May I now go back to article 15? I tried to make clear on the last occasion when I spoke that in what we were trying to add there was really not the slightest attempt at changing the Constitution or amending it in any real sense. It was to lay a certain emphasis on something which had been adequately emphasised in other parts of the Constitution, but again because some doubts had arisen; it is perfectly true that those doubts had arisen in another connection. Although there is a connection, nevertheless it is another matter. Looking at that narrow issue that arose in Madras, for my part this amendment, I should like to say, is not intended to be a communal amendment, or to help in any way a communal approach to this problem. We must distinguish between the communal approach and the approach of helping one of our weaker, backward brothers and sisters. And, if I may say so, although it is my amendment thinking about it I do not particularly like the words “backward class of citizens”, and I hope the Select Committee may find a better wording. What I mean is this: it is the backward individual citizen that we should help………..
…………. One of the main amendments or ideas put forward is in regard to the addition of the word “economical”. Frankly, the argument put forward, with slight variation, I would accept, but my difficulty is this that when we chose those particular words there, “for the advancement of any socially and educationally backward classes”, we chose them because they occur in Article 340 and we wanted to bring them bodily from there. Otherwise I would have had not the slightest objection to add “economically”. But if I added “economically” I would at the same time not make it a kind of cumulative thing but would say that a person who is lacking in any of these things should be helped. “Socially” is a much wider word including many things and certainly including economically. Therefore, I felt that “socially and educationally” really cover the ground and at the same time you bring out a phrase used in another part of the Constitution in a slightly similar context.
Courtesy: ‘Selected Works of
Jawaharlal Nehru’
The inserted Article 15(4) says,
Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
The Article 15(4) enlarged the scope of reservation benefits to the Backward Classes from the erstwhile Communal G.O. applicable to the State of Madras to the whole of the country.
