By Dr Palla Trinadha Rao
The verdict of the constitutional bench of Supreme Court (SC) comprising of five judges, striking down the government order manuscript (GO Ms) No 3 of 2000 issued under 5(1) of the Fifth Schedule to the Constitution by the United Andhra Pradesh, providing 100 percent reservation to the local candidates of Scheduled Tribes(STs) in the Scheduled Area, in Chebrolu Leela Prasad Rao & Ors vs State of AP & Ors. on April 22 has given rise to a great concern among the tribals of Andhra and Telangana states.
The fear of the tribals is that the existing constitutional protections and regulations promulgated by the Governor under Fifth Schedule of the Constitution will be replaced by the general rules and the result would be that lakhs of tribals would be evicted from their lands, and lost the employment opportunities in the Government Jobs. The decision of the SC court reversing the full bench decision of the AP High court, upholding the GO Ms No 3, has raised several contentious issues concerning the historical and socio perspective towards tribals and constitutional scheme of the Fifth Schedule to the Constitution.
The first and foremost point raised by the SC bench was on the competency of the Governor to issue a GO Ms no 3, exercising his power under Fifth Schedule to the Constitution. The SC held that the power of the Governor does not extend to subordinate legislation and it is subject to some restrictions, and also cannot override the fundamental rights guaranteed under Part III of the Constitution. Further it held that the power of Governor has to be exercised harmoniously with an order issued under Article 371D by the President of India, but not in conflict thereof. These findings are questionable.
Article 244 provides that the administration and control of the Scheduled Areas shall be in accordance with the Fifth Schedule to the Constitution and it is regarded as “a Constitution within the Constitution” for the special governance of Scheduled Areas. The constitutional scheme is well recognized in several judgments of the SC such as Samatha vs. State of Andhra Pradesh (AIR (SC)1997) , which is to preserve the tribal autonomy, their culture and economic empowerment, to ensure social, economic and political justice and for preservation of peace and good governance in the Scheduled Areas.
The Fifth Schedule has been designed to protect tribals from social injustice and exploitation in furtherance of Article 15(4) and Article 46, and the SC refused to hold tribal protective legislations to be violative of various fundamental rights, including Articles 14 and 19(1)(g).
In the case Lingappa Pochanna vs. State of Maharashtra (1985) 1 SCC 479, the SC held that there is a constitutional duty on the state to take positive and stern measures for the survival and preservation of the integrity and dignity of tribals. The SC further in State of Nagaland Vs Ratan Singh reported in (1966) 3 SCR 830 where reference was made to Article 244 of the Constitution of India. The Challenge was made to statutes and Rules providing for the exclusion of the jurisdiction of Civil and Criminal courts in the discretion of the Governor.
The SC upheld the legislative competency of the Governor under Fifth Schedule to make such Statutes and Rules. In Ram Kirpal Bhagat v. State of Bihar, (AIR 1970 SC 951), the SC while dealing with the Scheduled areas and the law applicable to the Scheduled Areas under the Fifth Schedule of the Constitution held that application of law is one of the recognized form of legislation.
The powers conferred on Governor under the Fifth Schedule was rightly interpreted by the SC in Samatha case, that it is a beneficent power, to be exercised for the social and economic advancement of the Scheduled Tribes. The “non withstanding anything in the constitution ”clause in the Fifth Schedule, empowers the Governor to make legislations even subjects touching the Articles 14, 15 and 16 of the Constitution and also applicable to the any enactment uncovered by the notification issued.
It is within this constitutional and policy approach that the Fifth Schedule and laws relating to Scheduled Areas, including the GO Ms NO 3 of 2000 must be examined. The SC bench should have considered that the G.O.Ms 3 of 2000 is aimed at implementing the directive in Art 46 of the Constitution to subserve the educational interests of tribal children, which are adversely affected by the phenomenal absenteeism and indifference to duty on the part of the nontribal teachers.
The experience in the tribal areas, largely shows that the non tribal teachers show no interest in the educational advancement of the tribal children but spend all their time seeking means of getting a transfer outside the Scheduled Area. The GO Ms 3 is to be construed, not primarily as a measure of reservation in jobs, but as a measure aimed at safeguarding the educational interests of Scheduled Tribe children as part of the constitutional obligation by virtue of the Fifth Schedule of the Constitution read with Art 46.
The Presidential Notification issued under Art 371 D for the recruitments in the context of the reorganization of the State cannot take away the constitutional power of the Governor and the purposes of these constitutional powers are different and distinct and cannot pit against each other to decide the validity of the Go Ms No 3.
The other findings of the SC in the case is that the G.O.Ms. No.3/2000 providing for 100 per cent reservation is not permissible under the Constitution, the outer limit is 50 per cent as specified in Indra Sawhney case. And the notification issued by the Governor in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India.
The SC should have held that the upper limit of 50% prescribed in the Indira Sawhney case applies only to the reservation given under Art 16(4), i.e., to backward classes of citizens who are not adequately represented in the services under the State and not to reservation that may be given on other grounds. The SC held in the cited case the that reservation can be given also under Art 16(1) itself, and not only under Art 16(4). Art 16(4) is not exhaustive of reservations, and reservation can also be made under Art 16(1) provided the State can justify such reservation in public interest.
The rationale, as the preamble to the GO Ms No 3 shows, stems from the need to avoid and overcome absenteeism of teachers in the schools in the scheduled areas, leading to fall in standards of teaching in the schools. This is relatable, not exclusively to Art 16(4), but to Art 46, a Directive Principle of State Policy, which directs the State to take special care for the educational advancement of the scheduled tribes and the provisions of the fifth schedule, particularly Clause 5 of that Schedule.
Thus the reservation provided by GOMs 3 of 2000 is not under Art 16(4) but under Art 16(1), with the rationale of Art 46, and is therefore a valid reservation, and moreover, it is not to be counted for the purpose of the 50% upper limit for reservations under Art 16(4). The GO Ms no 3 is an emanation from the Fifth Schedule of the Constitution as such it is an act of constitutional legislation but not executive.
On the point of upper limit of reservation of 50 % in the Indira Sawhney vs State (AIR 1993 SC 477) the SC held that the upper limit of 50% can be breached in extraordinary circumstances, especially with reference to the population of far flung and remote areas, for whose benefit it may be imperative to breach the limit. Therefore the decision of the Governor under Fifth Schedule issuing notification providing 100 percent reservation for the STs in the Scheduled areas completely matches this description and permissible under law.
The other concern is that the SC held in the GO Ms no 3 case that no law mandates that only tribal teachers can teach in the scheduled areas and it is also depriving the employment opportunities of the non tribals, including the STs who have settled in the Scheduled Area after the cutoff date 26-01-1950 for the eligibility to secure benefit of the GO Ms No 3.
In P.Rami Reddy & Ors. Etc vs State Of Andhra Pradesh & Anr. (1988 AIR 1626) on the point of constitutional validity of the AP Schedule Area Land Transfer Regulations 1 of 70 promulgated by the Governor under Fifth Schedule to the Constitution, held that “ In the absence of protection, the economically stronger ‘non-tribals’ would in course of time devour all the available lands and wipe out the very identity of the tribals who cannot survive in the absence of the only source of livelihood they presently have. It is precisely for this reason that the Architects of the Constitution have with farsight and foresight provided in paragraph 5(2) of Fifth Schedule that the Governor may make regulations inter alia “prohibiting or restricting the transfer of land in the scheduled areas notwithstanding any provision embodied in the Constitution elsewhere”.
Instead of raising a query by the SC how the non-tribals in the Scheduled Area could seek the jobs in the Scheduled Area if their infiltration to the Scheduled Area itself is questionable and regulated under the tribal protective Land Transfer Regulations 1 of 70, has permitted non tribal teachers to secure the jobs in the Scheduled Area. The efficiency of non tribals teachers cannot stand for a test when the local tribal teachers are able to teach their children in the language, idioms, known to them aligning with the local traditions and cultural context. The knowledge and information, skills equipped by the outsiders cannot match with the teaching methods of local STs for their children.
The Panchsheel Doctrine, a set of five fundamental principles devised by Shri. Jawaharlal Nehru, India’s first Prime Minister, enunciated tribal development, which includes that the tribals should develop along the line of their own genius and should avoid imposing anything on them and should try to encourage in every way their own traditional arts and culture. They should be trained and built up a team of their own people to do the work of administration and development and avoid introducing too many outsiders into tribal territory.
Therefore the protection of the tribals culture, their autonomy and way of life is an essential feature of their development. Therefore “any other interpretation would sow the seed beds to disintegrate the tribal autonomy, their tribal culture and frustrate empowerment of them, socially, economically and politically, to live a life of equality, dignity of person and equality of status” as laid down by the SC in Samata case.
In relation to the prohibition of other than local eligible STs for the purpose of GO Ms No 3 is to be understood in the context of the notifications issued by the President of India from time to time declaring the STs under Art 342 of the Constitution. Some of the tribal communities including lambada who are also known as banjara or sugali were declared as a Scheduled Tribe by a Presidential order only in the 1970s. Therefore, the Governor finds that certain communities among the Scheduled Tribes are not adequately represented, notwithstanding the provision of reservations to the STs in general. It is settled law that not only treating equals as un equals but also treating un equals as equals is violative of Art 14.
In this regard the State therefore must necessarily make an equitable subdivision of the reservations where real internal inequality and unequal access to reservations are made out as was said by Justice Chinnappa Reddy in K.C.Vasanth Kumar vs State of Karnataka (1985 Supp SCC 714). The SC in the Indira Sawhney case also held that `there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward` and that `even among the backward classes, there can be a subdivision on a reasonable basis`. Therefore excluding the ST candidates or the parents who are not residents of the Scheduled Area continuously from 26.1.1950 to date for the purpose of securing benefit of the GO Ms3 is neither un constitutional or unreasonable.
Therefore the wisdom of the constitutional bench quashing the GO Ms No 3 is questionable. The Judgement of the SC opens the flood gates to the non-tribals for immigration to the Scheduled Area which further affects the survival and identify of the Scheduled Tribes.