Supreme Court reverses High Court order in defence of 100 per cent reservation for Scheduled Tribes

The Supreme Court of India.

The Supreme Court’s five-judge Constitution bench, on April 22, held that providing 100 per cent reservation for Scheduled Tribes in scheduled areas of a State is not permissible. The bench, comprising Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose, held that the reservation of 100 per cent posts was irrational and arbitrary and violative of Article 14 of the Constitution.

Background

Paragraph 5(1) of Schedule V to the Constitution of India enables the Governor of a State to direct that any particular Act of Parliament or the Legislature of a State shall/shall not apply to a scheduled area or any part thereof in the State subject to such exceptions or modifications as he may specify, even with retrospective effect.

In 1986, the then Governor of Andhra Pradesh, in exercise of this power, directed the posts of teachers in educational institutions in the scheduled tribe areas of the State to be reserved for Scheduled Tribes only notwithstanding anything contained in any other order or rule or law in force.

In 1987, this direction was amended to allow the appointment of non-tribal people to hold the posts of teachers in the scheduled areas till such time the qualified local tribal people were not made available.

In 1993, non-tribals who were appointed as teachers in scheduled areas challenged the termination of their services in the High Court of Andhra Pradesh. After losing their case in the High Court, the non-tribal teachers appealed in the Supreme Court, which in 1998, upheld their challenge.

Following this, the Andhra Pradesh government issued a fresh notification in 2000, effectively providing for 100 per cent reservation for S.Ts in respect of appointment to the posts of teachers in the scheduled areas. Again, while the High Court upheld the validity of the 100 per cent reservation, the Supreme Court’s five-judge Constitution Bench, on April 22, ruled against it.

High Court’s logic

The High Court had sustained the 100 per cent reservation on the grounds that it would promote educational development of tribal people considering the phenomenal absenteeism of the teachers in the schools situated in the scheduled areas. The High Court had held that in extraordinary situations, reservation could exceed 50 per cent, and that the Governor possessed the power to issue the impugned notification under Schedule V, paragraph 5(1) of the Constitution. The same overrides all other provisions of the Constitution, including Part III of the Constitution of India, the High Court had held.

The Supreme Court, however, disagreeing with the High Court, has held that the Governor, in the exercise of the power conferred by para 5(1) of the Fifth Schedule of the Constitution, cannot provide 100 per cent reservation.

Naive understanding of the issue

The Governor, as per paragraph 3 of the Schedule V of the Constitution, has to submit a report to the President regarding the administration of scheduled areas annually or whenever so required by the President. The report is required to keep track of the progress in the areas. The report is essential for deciding to make reservation and for its review. The Supreme Court noted that the decision to reserve 100 per cent of the posts was taken not on verifiable data, but on the basis that there was chronic absenteeism of non-tribal teachers in the schools in scheduled areas.

The percentage of the S.T. population in Andhra Pradesh is 6 per cent. "The population in the scheduled areas not only includes Scheduled Tribes, but also open category, Scheduled Castes and other S.Ts settled after January 26, 1950, and they are not covered in the notification (to reserve the posts),” the Supreme Court bench noted.

The bench observed: “No law mandates that only tribal teachers can teach in the scheduled areas; thus, the action defies the logic. It is not the case that incumbents of other categories are not available in the areas . When a district is a unit for the employment, the ground of phenomenal absenteeism is irrelevant and could not have formed the basis for providing 100 per cent reservation. The problem of absenteeism could have been taken care of by providing better facilities and other incentives.”

The bench was of the view that 100 per cent reservation would weaken the educational infrastructure and the merit and the standard of education imparted in the schools. “It is an obnoxious idea that tribals only should teach the tribals,” the bench said categorically.

While the problem of phenomenal absenteeism of non-tribal teachers in tribal areas merits serious consideration and right remedial steps by the State government, the Supreme Court’s observation that reservation, by itself, could weaken merit and the standard of education, is not supported by facts, but based on a naive understanding of merit and efficiency in public employment.