Pre-natal history of Article 16

What is the pre-natal history of Article 16(4) of the Indian Constitution?

Clause (5) of the Fundamental Rights Sub-Committee Report providing for ‘’equality of opportunity in matters of public employment’’ came up for consideration before the Advisory Committee under the chairmanship of no less a person than Sardar Vallabhbhai Patel between 17 and 19 April, 1947. There was a rigorous discussion on whether the classification of social and economically backward classes per se included minorities. There was unanimity among all that it did as far as Article 16(4) is concerned and disagreement only whether specification of ‘minorities’ was required.

When it came up for discussion, Clause (5) as recommended by the Fundamental Rights Sub-Committee was the most important clause, and it was given due consideration by the Committee. That Committee consisted of stalwarts like C. Rajagopalachari, KM Panikkar, Shyama Prasad Mookerji, Frank Anthony KM Munshi and many such legal luminaries.

Shri C. Rajagopalachari suggested making the provision explicitly for the minorities instead of ‘classes’ as it is provided now. Shri Rajagopalachari told the Committee on a specific clarification about it as to whether it was the classes or minorities who were being given protection. Shri KM Panikkar, who was responsible for the initial changed words explained that besides recognising religious minorities there might be many classes amongst the Hindus not adequately represented. According to him, they had also to be given reservation.

In this connection Shri Shyama Prasad Mukherjee suggested the phrasing ‘minorities and other classes’ instead of simple ‘classes’. That was the suggestion made by Shri Shyama Prasad Mukherjee. Again, Sardar Ujjal Singh, who was a member of that Committee suggested ‘minorities and backward classes’ without any reference to adequate representation. Shri Frank Anthony said that it should be ‘classes and minorities’. This was the discussion that took place in that meeting. Sardar Vallabhbhai Patel observed that ‘classes’ included ‘minorities’. So, according to the drafters of the Indian Constitution, looking at the discussions by this Committee, under Article 16(4) of the Constitution wherever ‘classes’ has been mentioned, it includes ‘minorities’.

"The Advisory Committee was chaired by Sardar Vallabhbhai Patel when the matter was taken up for discussion. The Advisory Committee met for the second day in the council’s chamber of the Council House in New Delhi at 10 a.m. on April 22, 1947. Sardar Vallabhbhai Patel was in the chair. When the discussion was initiated, there were a number of observations made by the hon. members of the Committee like Sardar Vallabhbhai Patel, Shri Rajagopalachari and others.

"Frank Anthony: I would like to suggest that the clause should be amended ‘nothing herein contained shall prevent the State from making provision for reservation in favour of minorities or classes.

Ujjal Singh: It should be ‘classes’ over ‘minorities’.

Frank Anthony: What is the objection to ‘classes and minorities’? ‘Classes’ will refer to the Scheduled Castes.

C. Rajagopalachari: It is sufficiently described here – ‘those who are inadequately represented’.

Frank Anthony: Why should we fight shy of using a word which has the sanction of law and usage? We can make it more specific.

C. Rajagopalachari: Just as we do not say, ‘citizens and persons’, if one word is wider, we omit the smaller word.

Frank Anthony: We can put it as ‘classes including minorities.

Chairman (Sardar Vallabhbhai Patel): ‘Minority’ is included in ‘classes’.

Frank Anthony: This is my amendment. I move in favour of ‘classes and minorities’.

Ujjal Singh: ‘Minorities and backward classes’.

Chairman: This is simple English. ‘Class’ includes ‘minorities’. This is absolutely unnecessary. It is as clear as daylight."

"The Committee has come to the unanimous conclusion and we also feel classes include minorities. There is no need to suspect. The whole basis of the provision is minorities. You say the State will exclude minorities?"

This is what Sardar Vallabhbhai Patel asked the Committee when Article 16(4) was under discussion of the Advisory Committee. Sardar Vallabhbhai Patel had taken the stand that the classes would include minorities. He said that there was no need to suspect and that the whole basis of the provision is minorities. Again I would like to quote:

"Frank Anthony: We are not suspecting the present leaders. We do not know who the future leaders would be.

Chairman: No leader would be so stupid as to interpret that classes do not include minorities.

Frank Anthony: We are not suspecting the present leaders. We do not know who the future leaders would be.

Chairman: No leader would be so stupid as to interpret that classes do not include minorities.

Frank Anthony: We have used the words elsewhere.

Chairman: Anybody will say that ‘’classes’’ is a wider term. It is better to use a wider word.

C. Rajagopalachari: I would appeal to him that according to the ordinary interpretation if you introduce the word minority, the question whether a class is a minority will become justiciable. Classes will be interpreted in the sense of minority. The use of the general term ‘classes’ is followed by the phrase ‘not adequately represented’ and the opinion of the State finally determines it. I think, this is the best way of solving it.

KM Munshi: In Section 153 A, the term ‘class of His Majesty’s subjects’ has been used. ‘Classes’ have been interpreted as minorities or religious communities also. Nobody has ever interpreted it as not meaning minorities."

(From the Constituent Assembly Debates The Framing of India’s Constitution by Dr. B. Shiva Rao).

Archived from Communalism Combat, July 2004. Year 10, No. 99, Special Report 7



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