100% Reservation is Unconstitutional- SC 5 Judges

A Consitution Bench of Supreme Court, comprising Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah and Justice Aniruddha Bose, delivered a significant judgment, in the case of Chebrolu Leela Prasad Rao & Ors Vs State of A.P (Civil Appeal No. 3609/2002) on the issue of reservation in Public Employment. The Court upheld its earlier decision that Reservation cannot be 100% and there is a need of revisiting the list of SC and ST by the Government, because the benefit of reservation is not reaching to the needy and eligible people. 

Background:

The Governor of Andhra Pradesh issued a notification directing that post of teachers in schools ofthe scheduled tribe areas be reserved for Scheduled Tribes only notwithstanding anything contained in any other order or rule or law in force. The Administrative Tribunal quashed the notification by order dated 25.8.1989, against which an SLP was filed and same was dismissed as withdrawn.

Another notification was issued to amend earlier notification allowing the appointment of non-tribals to hold the posts of teachers in the scheduled areas. However it was only till such time the qualified local tribals were not made available for appojntment. Thereafter, non-tribals who were appointed as teachers in the scheduled areas filed Writ Petition in the A.P. High Court at Hyderabad against termination of their services. The same was allowed and the notification and the advertisements were held to be violative of protection guranteed under Article 14 of Constitution. In appeal, the order of the Single Judge was set aside by the Division Bench. The non-tribal appointees preferred Appeal before the Supreme Court, which was allowed . After the decision of Supreme Court on 18.12.1998, the Government issued a fresh notification/GOMs providing for 100% reservation in respect of appointment to the posts of teachers in the scheduled areas. The tribunal again set aside the notifications. Feeling Aggrieved writ petitions were filed in the High Court, a 3-Judge Bench by a majority upheld the validity of G.O. Aggrieved by the same, the appeals have were filed before the Supreme Court.

Issues framed by the Court:

  1. What is the scope of paragraph 5(1), Schedule V to the Constitution of India?
  2. Does the provision empower the Governor to make a new law?
  3. Does the power extend to subordinate legislation?
  4. Can the exercise of the power conferred therein override fundamental rights guaranteed under Part III?
  5. Does the exercise of such power override any parallel exercise of power by the President under Article 371D?

2. Whether 100% reservation is permissible under the Constitution?

3. Whether the notification merely contemplates a classification under Article 16(1) and not reservation under Article 16(4)?

4.Whether the conditions of eligibility (i.e., origin and cut-off date) to avail the benefit of reservation in the notification are reasonable?”

Arguments on behalf of the Appellant:

  1.  Under Para 5(1) of the Fifth Schedule to the Constitution the Governor has limited legislative power to modify the existing legislation made by the Parliament or the State legislature.
  2. Providing 100% reservation is against catena of Judgments of the Supreme Court.
  3. 100% reservation will cause compromise with the standard of education in the garb of cent percent reservation, and merit is a casualty.
  4. The Constitution does not permit 100% reservation in respect of any particular class or category by total exclusion of others. Reservation cannot not exceed the limit of 50%, in any case
  5. The notion that tribal students to be taught by tribal teachers in the scheduled areas amounts to tinkering with the merit and quality of education and also cause disadvantage and segregate the tribal children from the mainstream.
  6. The Classification is arbitrary, illegal and discriminatory, as it creates unreasonalble classification by providing condition of continous residence in scheduled areas since 26.1.1950.

Arguments on behalf of the Respondents:

  1. The Government can relax the normal rule of 50% reservation in appropriate cases.
  2. Reservation can be made by executive order. Reservations cannot be termed to be anti-meritarian.
  3. The scheduled areas and the tribes are a special homogenous class, who can be dealth with specially..
  4. There was no intention behind the notification to favour local scheduled tribes or to disrimnate with other categories. The object was to promote the educational interest of such areas, as such it cannot be held unconstituional on the ground of violation of Article 14 or 16 of Constituion.

Finding of the Court:

  1. The rules made under the proviso to Article 309 of the Constitution cannot be said to be the Act of Parliament or State legislature. Though the rules have the statutory force, they cannot be said to have been framed under any Act of Parliament or State legislature. The rules remain in force till such time the legislature exercises power. The power of the Governor under Para 5(1) of Schedule V of the Constitution is restricted to modifying or not to apply, Acts of the Parliament or legislature of the State. Thus, the rules could not have been amended in the exercise of the powers conferred under Para 5(1) of Schedule V. The rules made under proviso to Article 309 of the Constitution cannot be said to be an enactment by the State legislature. Thus, in our opinion, it was not open to the Governor to issue the impugned G.O. No.3/2000.
  2. The power is conferred on the Governor to deal with the scheduled areas. It is not meant to prevail over the Constitution. The power of the Governor is pari passu with the legislative power of Parliament and the State. The legislative power can only be exercised by the Parliament or the State subject to the provisions of Part III of the Constitution. In our considered opinion, the power of the Governor does not supersede the fundamental rights under Part III of the Constitution. It has to be exercised subject to Part III and other provisions of the Constitution. When Para 5 of the Fifth Schedule confers power on the Governor, it is not meant to be conferral of arbitrary power. They are to be exercised in a rational manner keeping in view the objectives of the Constitution. The powers are not in derogation but the furtherance of the constitutional aims and objectives.
  3. The concept of equality cannot be pressed to commit another wrong. The concept of equality enshrined in Article 14 of the Constitution is a positive concept. It is not a concept of negative equality. It cannot be used to perpetuate an illegality. Equity cannot be applied when it arises out of illegality. The doctrine of equity would not be attracted when the benefits were conferred on the basis of illegality.
  4. By providing 100 percent reservation to the scheduled tribes, State has deprived the SC and OBC also of their due representation. As held in the case of Indra Sawhnet, the concept of reservation is not proportionate but adequate The action is thus unreasonable and arbitrary and violative of provisions of Articles 14, 15 and 16 of the Constitution of India.
  5. There is no mandate of any law that only tribal teachers can teach in the scheduled areas; thus, the action defies the logic. Another reason given is the phenomenal absenteeism of teachers in schools. As such it can not be the reason for providing 100 percent reservation to the tribal teachers in the areas.
  6.  By providing 100% reservation, the state has illegaly deprived the employment to others and they due to which such candidates will have no chance of employment anywhere else in the capacity of teacher because of the order issued under Article 371D in which district/zone is a unit. Therefore it is a clear case of tinkering with reservation.
  7. Public employment envisages opportunity to all, who have been provided reservation is by way of exception to do the compensatory jobs. The condition above deprives the scheduled tribes who are permanent residents of the areas and have settled after the said cutoff date. Thus, the classification created is illegal, unreasonable, and arbitrary. Making such a provision that a person should be a resident on or before 26th January 1950 to date is discriminatory and has the effect of exceeding the purpose of providing the reservation.
  8. The Court noted that now there is a cry within the reserved classes. Today there are affluents and socially and economically privileged classes within SC/ST. Deprived persons are raising voice for social upliftment of some of the SC/ST, but the benefits are not reaching to the person at the lowest strata. As such, there is real struggle within, as to worthiness for entitlement within reserved classes of SC and ST and OBC.
  9. The Court agreed with the submission of Dr Rajeev Dhawan that the Government is required to revise the lists. It can be done presently 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 Government is duty-bound to undertake such an exercise as observed in Indra Sawhney (supra) and as constitutionally envisaged. The Government to take appropriate steps in this regard.

Conclusion:

Question No.1: The Governor in the exercise of powers under Para 5(1), Fifth Schedule of the Constitution, can exercise the powers concerning any particular Act of the Parliament or the legislature of the State. The Governor can direct that such law shall not apply to the Scheduled Areas or any part thereof. The Governor is empowered to apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect.

Question No.1(a): The Governor is empowered under Para 5(1), Fifth Schedule of the Constitution, to direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications. The Governor can make a provision within the parameters of amendment/ modification of the Act of Parliament or State legislature. The power to make new laws/regulations is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India.

Question No.1(b): The power of the Governor under Para 5(1), Fifth Schedule to the Constitution does not extend to subordinate legislation, it is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State which can be dealt with.

Question No.1(c): The Governor’s power under Para 5(1) of the Fifth Schedule to the Constitution is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution.

Question No.1(d): In exercise of power under Para 5(1) of the Fifth Schedule to the Constitution of India, the Governor cannot override the notification issued by the President in the exercise of powers under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof.

Question No.2: The G.O.Ms. No.3/2000 providing for 100 percent reservation is Unconstituional and violative of the the upper limit of 50% as specified in Indra Sawhney Case.

Question No.3: The notification under challenge cannot be said to be a classification made under Article 16(1). Artilce 16(1) taks away the power of State, as soon as the reservation is provided to STs under Article 16(4). The notification is therefore violative of protection guranteed under Articles 14 and 16(4) of the Constitution of India.

Question No.4: The condition of continous residence in the notification with a cut-off date, i.e., 26.1.1950, to get the benefits of reservation, is arbitray and unreasonable

Relief Granted:

Though the Court held that 100% reservation is unconstitutional and set aside the GOMs issued by the Government, but considering the fact that the incumbents, who have been appointed, cannot be said to be at fault and they belong to Scheduled Tribes, the Court protected the appointments of such incumbents and imposed a cost of Rs. 5 Laks on the State of Andhra Pradesh and Telangana. The Court observed:

“In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date. We direct the respondents-States not to exceed the limits of reservation in future. Ordered accordingly.”

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