July 31, 2020
August 10, 2020


To quote Dr B.R Ambedkar, “Equality may be a fiction but nonetheless one must accept it as a governing principle. An ideal society should be mobile, should be full of channels for conveying a change taking place in one part to other parts. In an ideal society, there should be many interests consciously communicated and shared.” The present article thoroughly discusses numerous issues that sprang up before the Hon`ble Supreme Court concerning the reservation policy and the power of the Governor under the fifth schedule of the constitution. The authors have attempted to critically analyse the verdict and hammer out various obscurities that continues to hold the fort regardless of the epic judgment.
A prolonged history of enslavement and persecution of the downtrodden section of the society has paved the way for the evolution of Protective Discrimination Strategy’. The reservation system was concocted as a mechanism to uplift the underprivileged who encountered and swallowed endless trials and tribulations throughout their life-span. Albeit, the concept of protective discrimination has the hallmarks of being antithetical to the principle of equality enshrined under the Indian constitution, however, if the action is impregnated with the motive to elevate the targeted sections, discrimination is categorically justified.   
The protective discrimination stratagem endeavours to buoy up the disadvantaged groups socially and economically so as to neutralize the effect of hardships suffered by them. Equitable apportioning of various resources and vesting power with them at all levels was the core reason for the implementation of the reservation system. Just like any other government policy, the reservation system has also been gravely criticized for granting more than what was needed to the weaker sections, thereby creating an atmosphere of disappointment and resentment. The authors in the present article attempt to analyse the latest Supreme Court judgment Chebrolu Leela Prasad Rao & Ors v. State of A.P & Ors.
Reservation limit conundrum-
The Supreme Court while analyzing the constitutional validity of 100% reservation with regard to the appointment of teachers in scheduled areas held that ‘the classification should be based on intelligible differentia and have rational nexus with the object sought to be achieved’. Granting 100% reservation to the schedule tribes would bereave other backward classes of their due representation.  The act of reserving all posts in the educational institutions in sympathy with STs of the area is violative of article 14, 15, and 16 of the constitution.  
The GOM issued by the Governor in the exercise of the power vested with him under Paragraph 5(1) of the Fifth Schedule of the Constitution is diametrically opposite to the chief objective of the reservation system which strives to subsume the weaker sections in the mainstream society. The idea of the tribal students to be taught by tribal teachers in the scheduled areas is akin to compromising with the merit and quality of education and further put them at a disadvantage and segregate them from the mainstream.
The court reckoned that “absenteeism of teachers in educational institutions” cannot wholly justify the 100% reservation order. Better facilities and quality incentives could work as an alternative to successfully purge out the issue of unannounced departure of the teachers. There were no such extraordinary circumstances to provide a 100 per cent reservation. The action defies logic and is arbitrary. Hence, the order is downright bizarre, irrational, and violative of Part III of the constitution which renders it inadmissible.  
Article 16(4) empowers the state to make special arrangements in favour of backward classes. No further concessions can be granted under Article 16(1) as 16(4) is an exhaustive provision. As per Presidential Order under Article 371D, a person of one district cannot claim employment outside the same. Therefore, by reason of 100% reservation, the masses belonging to other categories were unlawfully deprived of the right to employment. Thus, it is a clear-cut case of tampering with the reservation limit and not the classification under 16(1) of the Constitution.
Scope of Governor’s powers
The judgment has drawn a fine distinction between the powers of the Governor under Para 5(1) vis-à-vis Paragraph 5(2) of the Fifth Schedule of the Constitution. It has been clearly held that the Governor can direct that any Act of Parliament or the Legislature of the State shall not apply to a Scheduled Area or apply the same with exceptions and modifications. This is distinct from the power to make new laws/regulations, which is provided in Paragraph 5(2) of the Fifth Schedule. The court has explicitly stated that even the power under Paragraph 5(1) is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State and does not extend to subordinate Legislation. Governor’s power under Para 5(1) can neither override the fundamental rights nor can be in conflict with the notification issued by the President in the exercise of powers under Article 371D.
Reasonability of eligibility conditions
The GOM provided that the posts for teachers would be reserved for the incumbents who had been presiding permanently in the notified area since 26.1.1950. Article 15(1) prohibits discrimination on the basis of place of birth. Though it is permissible to keep residence as a condition for eligibility provided that, the condition is rational and not arbitrary. In the present case, a condition requiring the candidates to have permanent residency in the scheduled area since 1950, i.e., for 50 years or more has been held to be arbitrary and discriminatory.
Need for the periodical review of the list-
Various constitutional provisions such as Articles 341(1), 341(2), 342(1), and 342(2) provides for the inclusion of castes, tribes, races under the list of Schedule Caste/Tribes and it also entrusts the parliament with the power to amend such list. The growth of socially and economically advanced classes within the reserved classes has created an environment of disappointment. The reservation mechanism was adopted with a view to empower the poorest of the poor sections and grant them all the rights enjoyed by others. However, due to the growth of the above-mentioned class within the SC/STs, the voice of the distressed has been subdued. It was rightly solicited by Dr Rajeev Dhawan, learned senior counsel, that the government is obliged to revamp the list. At present, it can be done without disturbing the percentage of reservation so that benefits trickle down to the needy and are not usurped by those classes who have come up after obtaining the benefits for the last 70 years or after their inclusion in the list.
The viewpoint of the Supreme Court over the reservation threshold is truly laudable as it vehemently forbids happening of a similar event in the coming future. However, it fails to put forward the need of the government’s ground plan to encourage the growth of improved education among the tribals. The idea of providing better facilities and incentives to remove the barrier of absenteeism seems unsuccessful as the court has failed to mention any scheme to deal with the same and leaving the charge wholly on the government seems to be impractical.
The validity of the necessity of the government’s goals to improve education among Adivasis, reduce absenteeism, and ensure the Adivasi culture and way of life are barely mentioned in the judgment, and the government’s argument on this front is simply ignored. The constant reiteration of the phrase “reservation cap of 50 per cent can be extended in exceptional circumstances/considerations” has created chaos and confusion as to what constitutes ‘an exceptional circumstance’. The quandary revolving around such a question should be addressed without any further delay.
The apex court has enunciated its serious concerns over the situation where the state may resort to similar unlawful exercises in the future. They believe that what is least expected from the administrative machinery is to act within the bounds of the constitution. The need for betterment in education opportunities in the Scheduled Areas has been duly recognized, evidenced by the Court’s suggestion to provide better incentives for teaching posts in these areas. At present, the predicament is nothing short of a catch-22; if these posts are reserved for resident STs, then serious concerns over the quality of education arise, and if these are not limited to STs of the areas, those who do apply for and are appointed to the posts remain largely absent.
The issue of Governor’s powers being limited to issuing directions for non-applicability of any Acts to a scheduled Area or being applicable only with exceptions and modifications has been elaborately discussed, along with other statutory limitations such as not being in conflict with either fundamental rights or Presidential notifications. The concept of reservation is not opposed to the idea of merit. It only creates a special yet reasonable classification to produce a level-playing field for all. However, exceeding the limit set for reservation is, in all respects, unjustifiable and hence, constitutionally invalid.   




Vrinda Nargas is a third-year law student at National Law University, Jodhpur.





Anjali Busar is currently pursuing her BALLB (Hons) degree from Dr Ram Manohar Lohiya National Law University, Lucknow. 


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