Vijayawada: The Supreme Court’s judgement against 100% reservation of teachers of the Scheduled Tribes (ST) in primary schools located in the Scheduled Areas brings to the fore a debate over the prospects of the interests of Adivasis protected under the Fifth Schedule of the Constitution coming in conflict with that of the other categories within the quota system.
A five-judge constitution bench led by Justice Arun Mishra on April 22 struck down a government order issued by Andhra Pradesh governor Biswabushan Harichandan which had provided absolute reservation for members of the STs for teaching jobs in the scheduled areas. The apex court has also reiterated the Indra Sawhney vs Union of India judgement, which capped reservations at 50%. The issue has reached the Supreme Court after an appeal was filed against the Andhra Pradesh high court ruling which had upheld the government order providing for 100% reservations for tribal teachers in the Scheduled Areas. The five-judge constitution bench has also interpreted its judgement prospectively not “retrospectively” and held that the existing appointments made in excess of 50% reservation shall survive but shall cease to be effective in the future, providing relief to the tribal teachers who have already been appointed.
One Chebrolu L. Prasad had filed an appeal against the high court order contending that the governor’s order was discriminatory since it affected not only the open category candidates but also the other reserved categories’ candidates and reservation under Article 16 (4) of the Constitution shall not exceed the 50% cap.
The bench, also comprising Justices Indira Banerjee. Vineet Saran, M.R. Shah and Ravindra Bhat, observed:
“100% reservation would amount to unreasonable and unfair and cannot be termed except as unfair and unreasonable. Thus we are of the considered opinion that providing 100 % reservation to the Scheduled Tribes and Scheduled Castes were not permissible. The Governor in the exercise of the power conferred by para 5(1) of the Fifth Schedule of the Constitution cannot provide 100% reservation.”
The bench further ruled, “By providing 100 percent reservation to the Scheduled Tribes has deprived the Scheduled Castes and the Other Backward Classes (OBCs) also of their due representation. It also impinges upon the right of open category and scheduled tribes who have settled in the Scheduled Areas after January 26, 1950. The rights of the Scheduled Tribes who are not residents of the scheduled areas shall also be adversely affected if the impugned order is allowed to become operational.”
Ravindra Reddy, president of the EBC (Economically Backward Classes) Association, welcomed the judgement, highlighting the need to keep the quota well below the 50% ceiling. The CPI(M) state unit requested the state government to file a review petition in the Supreme Court.
Call for safeguarding tribals’ interests
Tribal advocacy groups, however, contend that social justice cannot be delivered if tribals in the scheduled areas and the other marginalised sections living elsewhere are seen as being on the same page. Lawyer and tribal activist Palla Trinadha Rao told The Wire that the quashing of the government order will run counter to the principal objective of the Fifth Schedule of the Constitution. The schedule is framed to give protection to the tribals living in the scheduled areas from alienation of their lands and natural resources to non-tribals, he said.
Midiyam Babu Rao, a tribal leader of the CPI (M) and a former MP representing the Bhadhrachalam constituency currently in Telangana, said tribals in both Telangana and Andhra Pradesh have already been subjected to alienation of their lands and jobs. This, he said, has happened through flouting of the Land Transfer Regulation Act and producing fake caste and nativity certificates.
Other governments also faced challenges
In an unrelated development, the division bench of the AP high court on March 2 had dismissed a government order to take the limit of quota in elections for urban and rural bodies for Backward Classes, SCs and STs up to 59.85%. The division bench, headed by Chief Justice Jitendra Kumar Maheswari, and judge Naina Jayasurya, struck down the GO on the same ground as the Supreme Court, that reservations cannot extend beyond the 50% cap.
The former chief minister of undivided Andhra Pradesh, Y.S. Rajasekhara Reddy, was forced to reduce the quota for Muslims from 5% to 4, following a direction from the high court not to exceed the limit of 50%. Telangana chief minister K. Chandrasekhar Rao passed a couple of bills in the state assembly—one seeking to increase reservations for Muslims from 4% to 12% and the other to take the quota for STs from 6% to 10%, taking the total quota well above 50%. These bills were passed before the state elections in 2018, but have remained pending with the Central government. Similarly, the previous TDP government’s 5% quota move for the Kapu caste failed to see the day of light yet, for want of the Central government’s approval.