INTRODUCTION
The constitution of our country guarantees the right to equality as a fundamental right to every citizen. Article 15 prohibits discrimination on the grounds of sex, race, caste, sex and place of birth. Article 16 provides equality of opportunity in the cases of public employment. Equality before law means equality among equals. The right to be sued and prosecuted for the same offence should be equal to each and everyone.Wealth,social status and political influence of a person should not be taken into consideration.
This case is based on the validity of a government order issued by Andhra Pradesh providing 100 percent reservation to schedule tribe candidates for the post of teachers in school in the scheduled areas of Andhra Pradesh. This was challenged before the court and subsequently many issues came up with this case.
BACKGROUND
On November 25, 1949, Dr BR Ambedkar sounded a grave warning in the Constituent Assembly: “On January 26, 1950, we will have equality in politics and inequality in social and economic life. We must remove this contradiction at the earliest moment, or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.” To guard against such an explosion of discontent, the Preamble of the Constitution clearly spells out the objectives of securing “JUSTICE for all its citizens JUSTICE, social, economic and political” as well as “EQUALITY of status and of opportunity.”
The case State of West Bengal.vs.Anwar Ali Sarkar the judges stated that article 14 of the constitution ensures equality and each one should be treated equally.
Several questions were based on the validity of this government order dated 10.1.2000 issued by the state of Andhra Pradesh. It provides 100% reservation to scheduled tribe candidates out of which 33.1/3% shall be women for the post of teachers in the scheduled areas of Andhra Pradesh.
The order questioned was issued by the governor in exercise of powers under paragraph 5[1] of schedule v of the constitution of India. Another government order was issued to amend this order which allowed the appointment of non-tribals to hold the positions of teachers in Scheduled areas till such time the qualified local tribals were not made available.
Non tribals who were appointed as teachers in this area filed a writ petition before the high court of Andhra Pradesh against the termination of their services. This was allowed for a vide judgement and the advertisements were held to be violative of article 14. Civil appeal preferred by the non-tribals were allowed.
The court rendered this decision and provided 100 percent reservation in respect to the appointment of teachers and the 3-bench majority in the high court upheld the validity of the government order based on the writ petitions. The majority opinioned that 100%reservation can be sustained on the grounds of intelligible differentia along with rationale nexus. They had the opinion that the reservation limit can exceed 50% in extraordinary cases and the governor possessed the power to issue impugned notification under paragraph 5[1] of schedule 5.The minority had the opinion that this reservation offends the spirit of article 14 and 16 and the governor cannot make any laws in derogation with the fundamental rights guaranteed under part III of the constitution. The reservation should not exceed 50% under article 16[4].
The government order whose validity was questioned reserved the posts in educational institutions within the areas of scheduled areas in Favour of local scheduled tribes.
PRE-CASE YEARS
The validity of reservation was questioned in many cases
In the case of State of Madras.VS.Smt.Champaka Dorairajan,the majority held that the respondent to be admitted into medical college was only based on caste. The court held that caste-based reservations violate article 15[1] of the constitution. Apart from the judgement the parliament also amended article 15 adding a new clause 15[4] which invalidated the judgement that Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
M.R.Balaji and Ors VS. State of Madras was another case in which the debate of reservation prevailed. The state reserved 68% of seats for socially and economically backward classes merely leaving 32% of seats for others. This was challenged and the court held that the prescribed limit of 50% should not be exceeded. This reservation came outside the scope of article 15[4] and 16[4].
T.Devadasan . vs. Union of India which is famously known as the carry forward rule case. This rule states that in addition to the existing reserves, unfilled vacancies for reserved category candidates are to be extended to the next year. The court held that the reservation is so unreasonable in this rule, and it effectively excludes members of other communities from a fair job opportunity.
In the case state of Kerala vs N.V.Thomas also revolves around the reservation policy of a state. This case is based on the reservation for backward classes for promotion in government jobs. The court held that the classification of workers into SCs and STs for the permission to extend up to two years was reasonable and justifiable.
The most important judgement in reservation cases was none other than Indira Sawhney VS Union of India in which the court held that the reservation shall not exceed the ceiling limit of 50percent.
LEGAL QUESTIONS RAISED
There were 4 legal questions which were raised in this case, the first one was questioning the scope of paragraph 5[1] in schedule V of the constitution of India There were 4 sub questions under this. Will this provision empower the governor to make new law, does this power extend to the subordinate legislation, whether the exercise of such powers conferred override the fundamental rights guaranteed under part III of the constitution and whether it override any parallel exercise of power by the president of India by article 371D.
Article 245 deals with the administration of tribal areas. The provisions of schedule V shall apply to the administration of scheduled areas. Paragraph 3 under this schedule states about the interplay between the governor and the president. The governor should report to the president regarding the administration of scheduled areas. Paragraph 4 provides for the formation of tribal advisory council to advise on such matters related to the advancement of scheduled tribes.
The governor has the power to exclude their operation by a notification. The act of the parliament or the appointment of legislature applies to the scheduled areas. Paragraph 5[3] of this schedule empowers the governor to repeal or amend any act of the parliament or the state legislature following all the procedures prescribed. The governor also has the power to modify or create exceptions.
The governor’s power under paragraph 5[1], fifth schedule is not extended to subordinate legislations When it comes to modification or exception concerned with the cat of the parliament the subordinate legislation cannot be added to paragraph 5[1].
The governor’s power under this cannot override the fundamental rights guaranteed under the constitution. These powers should be exercised subject to fundamental rights under part III. These powers do not confer any arbitrary power on the constitutional authorities. They should always be exercised in a rational manner and all the objectives of the constitution should always be kept in mind.
The main question considered under the last issue is whether there is any conflict between the presidential order and the governor’s order. The governor is only competent to issue an order without conflicting with the presidential order. The governor should not issue any order in derogation to the presidential order. When the presidential order was already in force throughout the entire state under article 371D.
The next issue was whether 100% reservation is permissible.
There is no law implying that tribals can only teach in tribal schools.100 Percent reservation was irrational and violates article 14 guaranteed under the constitution. If the local tribes were unavailable the posts would remain vacant. The concept of reservation should always be proportional as held in the landmark judgement of Indira Sawhney case. It also deprives the rights of the tribals who settled in our country after 26th January 1950. By depriving others opportunities, it cannot be said to strengthen the educational infrastructure of the tribal people. Social equilibrium cannot be achieved in these cases. Thus, it was held that 100 percent reservation is not permissible.
The next legal question raised was whether the notification merely contemplates classification under article 16[1] and not reservation under 16[4].
Clause 4 of article 16 is an instance of classification arising out of Clause 1 of article 16. It would not be correct to say that the backward class of citizens under article 16[4] is same as in article 15[4]. The court in the case of Indira Sawhney held that once reservation has been provided to any further exemptions, preference and concession to such class of persons can only be extended under article 16[4].
The final question was whether the conditions of eligibility to avail the benefit of reservation in the notification are reasonable.
Public employment always provides an opportunity for all. This condition under the government order deprives the rights of scheduled tribes who have settled after the cutoff date 26th January 1950. The classification treated is unreasonable, illegal and arbitrary.
POST CASE YEARS
Nagaraja and others union of India is a case where the idea of reservations in promotions was challenged based on policies. These policies were illegal. Madhya Pradesh government provided reservation in promotion to SC/ST’s. This decision of the government was criticized as it was ultra vires of the constitution and breached the equality guaranteed by the constitution. In Suraj Bhan Meena.v. state of Rajasthan the petitioner, a Rajasthani administrative officer filed the writ to quash the notification dated 25.04. 2008.The respondents should strictly adhere to the catch-up rule. The seniority of all the petitioners should only be revised after giving benefits to the general category for regaining seniority. They argued that this circular was illegal and unconstitutional. Another case was Ashok Kumar Thakur.VS. union of India which revolved around the validity of the Central education institution act, section 2[g]. It deals with the identification of socially and economically backward classes. The validity of the 93rd amendment was also questioned as it violates the basic structure of the constitution. There were no fixed criteria to determine the SEBC’s.Janhit Abhiyan.vs. union of India was also based on an amendment. The main issue raised in this case was the violation of the basic structure by the 103rd amendment. The economic criteria cannot be a sole determinant in allowing reservation. Also, the additional 10%reservation provided to economically weaker sections will cross the ceiling limit of 50%.
CONCLUSION
The main aim of reservations in India is the advancement of Scheduled tribes, scheduled castes and other backward sections. There is SC/ST reservation and EWS reservation in India. It is the duty of the government to ensure equal opportunities to all. But it is equally important to balance this. Reservations should not take away other opportunities. This should always be kept in mind during the amendments.
Written by Krishnapriya P. D, Intern Under Legal Vidhiya
