The Human Rights Forum (HRF) takes strong exception to the Supreme Court quashing of the order providing 100 per cent reservation to Scheduled Tribe (ST) candidates for the posts of teachers in schools in the Scheduled Areas. The 22-4-2020 verdict by a 5-judge Constitution Bench is deeply regressive and undermines hard-won rights of the Adivasis. Contrary to what the Supreme Court has stated, it is the HRF’s view that the 100 per cent reservation for STs in the instant case is reasonable, fair, non-arbitrary, permissible and Constitutionally valid.

The 152-page judgement by the Apex Court betrays a basic lack of understanding about the nature and importance of the Fifth Schedule (described by experts as a ‘Constitution within a Constitution’) enshrined in the Constitution. It dilutes, in a fundamental sense, the special status accorded to Adivasis resident in the Fifth Schedule areas. Indeed, the strong statutory framework that the Constitution bestows upon the Fifth Schedule flows from a recognition that the special purpose of the Scheduled Areas is to preserve tribal autonomy, their culture and economic empowerment so as to ensure social, economic and political justice and to preserve peace and good governance.

The motivation for the 100 per cent reservation to local STs is located in Article 46 of the Directive Principles of the Constitution. It is laid out there that the State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular, the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

The object of the 100 per cent reservation was to strengthen educational infrastructure in the Scheduled Areas so as to promote educational development of tribals. It was intended to solve the phenomenal absenteeism of teachers in these schools situated in remote areas with a view to protect the interests of the local tribals. Appointment of local tribals exclusively as teachers was the proposed remedy to overcome the problem of absenteeism and to subserve the educational development of Adivasi school children.

It may be recalled that in 1986, orders were issued in the State of Andhra Pradesh reserving 100 per cent of vacancies for Adivasis in certain government posts as applicable to the Scheduled Areas by invoking provisions of the Fifth Schedule to the Constitution. The rationale of this reservation was that non-tribals who have no empathy with tribal people could not be expected to work with requisite dedication for the welfare of Adivasis. Teacher’s posts in particular in all the schools in the Scheduled Areas were reserved 100% for local Scheduled Tribes. This reservation had a chequered history, going up and down from the State Administrative Tribunal to the Supreme Court, and back over a fifteen-year period at the behest of non-tribal teacher aspirants. Finally, when it came to rest before a Full Bench of the AP High Court, it was mainly the argument put forth by K Balagopal that carried the day and the order was upheld in November, 2001.

The 5-judge Constitution Bench’s contention now, several decades later, that the 100 per cent reservation is violative of the 50 per cent threshold norm stipulated by the Apex Court in the 1992 Indra Sawhney judgement (known as the Mandal verdict) is plainly invalid. This is because the 100 per cent reservation G.O 3 of 2000 (issued in the State of Andhra Pradesh) was made not under Article 16(4), but on the basis of a reasonable classification with the aim of subserving the Directive Principle in Article 46, and is therefore made under Article 16(1). It is therefore not to be added to the reservation given in Rule 22 of the AP State and Subordinate Service Rules, 1996 under Article 16(4) for the purpose of the 50 per cent upper limit, which applies only to reservation made under Article 16(4).

It has to be borne in mind that much like the Fundamental Rights of Part III, so also Part X of the Constitution and the Fifth Schedule, unique to the our Republic’s foundational document, are equally a part of its ‘Basic Structure’. The Fifth Schedule was intended by the founding fathers of the Constitution as an innovative device for promoting the welfare and advancement of Scheduled Tribes and the administration of Scheduled Areas. It thereby confers uncommon powers for governance in Scheduled Areas on the Governor of a State.

In fact, Clause 5 of the Fifth Schedule is a unique provision that recognises the characteristics of the Adivasis as distinct from those of the rest of the population. In particular, it makes the laudatory recognition that laws enacted for the rest of the country may not be in complete harmony with the interests of Adivasis and therefore bestows the President/Governor the authority to review the same and adapt them to suit the interests of the Adivasis, before they can be extended to the notified areas. There is no similar provision anywhere else in the Constitution, except in the Sixth Schedule applicable to the North-Eastern areas.

None of these commendable concerns seem to have weighed on the Constitution Bench. Rather, there are parts of the judgement that lay bare the essentially blinkered and retrograde thinking of those who have authored it. We fear what might come next. An assault on Regulation 1 of 70 that prohibits alienation of tribal land to non-tribals? An attempt to damage the principle of adequate representation, the scheme of reservation, itself? How else can one view this outburst from the Bench: “The action defies logic and is arbitrary. Merit cannot be denied in toto by providing reservations,”

Why is it “an obnoxious idea”, as the judgement states, that “tribals only should teach the tribals”. Is this Constitution Bench blissfully unaware of the reality in the Fifth Schedule tracts, where STs inhabit remote and far-flung areas? Does it not know that the Constitution itself treats the tribals as a special case of people requiring extraordinary measures for their protection? Can it not appreciate the simple fact that for certain positions like that of teachers, an Adivasi teacher familiar with the culture and customs of fellow tribals will be in a better position than a non-tribal counterpart to communicate with the Adivasi parents and children? That he or she will be more than willing to reside in the Adivasi villages and share their living in a harmonious manner?

We are unfortunately in a situation where a dangerously illiberal political executive is being matched by in-egalitarian judicial pronouncements that are plainly insulting to the redeeming features of our Constitution. In recent years, we have seen appalling judgements from the highest court of the land in several matters; the order in February last year calling for eviction in a summary manner of those whose claims for forest rights under the FRA have been rejected, and the dilution of key provisos of the SC, ST (PoA) Act on March 20, 2018, come to mind.

HRF calls upon the Andhra Pradesh and Telangana governments to seek a review of the Supreme Court judgement in order to safeguard the significant Constitutional rights and special provisions meant for Adivasis in the Fifth Schedule. We also appeal to all political parties in the country to oppose this judgment and for all democratic rights organisations and pro-people’s movements to campaign against it and ensure that the rights of adivasis are not diluted in any manner.

VS Krishna

S Jeevan Kumar

HRF AP & TS Coordination Committee members


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