Background
- Reservation in India is a system of affirmative action by the State that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics.
- It was envisaged to help address social disparities and economic backwardness of certain sections of the population within a few decades.
- But gradually, amendments have been made, and there is no review of the list nor has reservation come to an end. Instead, there is a demand to increase them.
- Now it is very tough for any elected government to have the political will to meet the challenges that arise from the reservation.
Reservation being an all-time contested issue is a less inevitable topic for mains. However, we can expect some of the thought triggering questions such as – “Reservation is hardly capable of striking a balance between social inclusion and merit. Critically comment. (250 W)”
OR
Essay topic like- “Meritocracy is unrealized without an egalitarian society” are ready to raid your mind.
Present context
- Recently, the Constitution Bench of the Supreme Court has held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
- The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.
- The principal grounds cited are mainly found in a 1992 judgment of a nine-judge Bench in Indra Sawhney vs Union of India.
Yet again in the news
- Since 1992, governments—both the Centre and the states—have been liberal in their interpretation of “extraordinary situation”, and have used various legal provisions to protect policies that breached the 50% cap.
- For instance, some states have used the Schedule IX shield to protect state laws that expanded reservation beyond 50%. (A Tamil Nadu law that provides 69 per cent reservation in the state is part of the Schedule.)
- Maharashtra recently enacted legislation to give reservation benefits to Marathas.
- On the other hand, the Centre created a 10% quota for people from economically “weaker” sections (defying the sole criteria of socio-economic backwardness).
What is the present case?
- The Supreme Court has overruled the Andhra Pradesh government’s decision in 1988 to provide a 100% reservation to Scheduled Tribes for teacher posts in Scheduled Areas.
- The notification to provide a 100% reservation to Scheduled Tribes (STs) for teacher posts in Scheduled Areas was issued by then governor of the erstwhile Andhra Pradesh.
- The Fifth Schedule of the Constitution dealing with the administration of Scheduled Areas vests the Governor with legislative and administrative powers.
Note: We shall not indulge in dicussing the pros and cons of reservations. Numerous politicians and forged bhakts are there to brainstorm them.
Why did AP bring such a provision?
- The scheduled areas are treated differently from the other areas in the country because they are inhabited by ‘aboriginals’ who are socially and economically rather backwards and special efforts need to be made to improve their condition.
- Therefore, the whole of the normal administrative machinery operating in a state is not extended to the scheduled areas.
- Then AP govt. observed that there was chronic absenteeism among teachers who did not belong to those remote areas where the schools were located.
No 100% quota permissible
- The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
- Merit cannot be denied in toto by providing reservation observed the judgement.
- Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.
Constitutionality check: ‘Failed’
- The Supreme Court concluded that reservation in the case violated Articles 14 (equality before law), 15(1) (discrimination against citizens) and 16 (equal opportunity) of the Constitution.
- The Court ruled that the Governor’s powers under para 5 of Schedule V are subject to the fundamental rights guaranteed under Part III of the Constitution.
- It observed that in this case, “there were no such extraordinary circumstances to provide a 100 per cent reservation in Scheduled Areas”.
- The court also took note of a Presidential Order issued in 1975 under Article 371-D (Special provisions for Andhra Pradesh) of the Constitution, which said employment to people in the state were limited to only their districts.
Other legal loopholes
- Paragraph 5(1) of Schedule V empowers the Governor to issue a notification directing that any central or state law may not apply to a scheduled area or shall apply to the area with modifications and exemptions.
- The then Andhra Pradesh Governor had cited this provision.
- The government order had also cited Andhra Pradesh State and Subordinate Service Rules 1996, which provides for 6 per cent reservation for Scheduled Tribes in the State.
- But the bench ruled that Para 5(1) of Schedule V does not allow modification of Rules.
Invoking Indra Sawhney judgment: The 50% Cap
- The court referred to the famous Indra Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
- The court held that a 100% reservation is discriminatory and impermissible.
- Among others, it recognized socially and economically backward classes as a category and recognized the validity of the 27 per cent reservation.
- The concept of ‘creamy layer’ gained currency through this judgment. Those among the OBCs who had transcended their social backwardness were to be excluded from the reservation.
Significance of the present judgement
- The verdict quashing the 100% quota is not against affirmative programmes as such, but caution against implementing them in a manner detrimental to the rest of society.
- However, the solution for drafting only members of the local tribes was not a viable solution.
- As the Bench noted, it could have come up with other incentives to ensure the attendance of teachers.
- Another aspect that the court took into account was that Andhra Pradesh has a local area system of recruitment to public services.
- Thus, the 100% quota deprived residents of the Scheduled Areas of any opportunity to apply for teaching posts.
Why so much confusion persists over ‘reservation’ after several Judgements?
- There are many other reservation-related judgements where the SC has either read down its earlier judgments or has completely side-stepped these.
- A fair share of the blame, however, must rest with the SC itself in 1994, in Ajay Kumar Singh SC ruled on reservations at the highest levels of education, which Indra Sawhney proscribes.
- For instance, SC in 2018 upheld one part of the Nagaraj judgment saying that reservations can’t be allowed to affect efficiency negatively while in another judgment.
- It is necessary to liberate the concept of efficiency from a one-sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration.
- Unless the apex court lays down its opinion with some degree of certitude, the reservation will likely continue in perpetuity.
What is the remedy for such a situation?
- B.R. Ambedkar observed during the debate in the Constituent Assembly on the equality clause, that any reservation normally ought to be for a “minority of seats”.
- This is one of the points often urged in favour of the 50% cap imposed by the Court on the total reservation, albeit with some allowance for relaxation in special circumstances.
- It is still a matter of debate whether the ceiling has innate sanctity, but it is clear that wherever it is imperative that the cap be breached; a special case must be made for it (as TN and MH did).
- Such a debate should not divert attention from the fact that there is a continuing need for a significant quota for STs, especially those living in areas under the Fifth Schedule special dispensation.
Way Forward
- The reservation policy was introduced only for a temporary timeframe until equality reigns amongst all bases of discrimination.
- However, the policy of reservation has been continuing for over six decades now and continues to expand. Since, Reservation is necessary to provide equality, equity, and diversity in society.
- The Indra Sawhney judgement started a new era of reservation in India. But actual work of social upliftment is still incomplete.
- The present system seeks to elevate a section or decelerates another regardless of merit to bring them all on the same level.
- Still, it is the only prerogative for social upliftment of marginalized sections.
- There is a need for rationalizing the policy so that a balance can be established between social mobility and merit.
Back2Basics: What are Fifth Schedule Areas?
- The Fifth Schedule of the Constitution deals with the administration and control of scheduled areas and scheduled tribes in any state except the four states of Assam, Meghalaya, Tripura and Mizoram (ATM2).
Who can declare an area to be Scheduled Area?
- The President is empowered to declare an area to be a scheduled area.
- He can also increase or decrease its area, alter its boundary lines, rescind such designation or make fresh orders for such re-designation on an area in consultation with the governor of the state concerned.
Administration of Scheduled Areas
- The executive power of a state extends to the scheduled areas therein. But the governor has a special responsibility regarding such areas.
- The executive power of the Centre extends to giving directions to the states regarding the administration of such areas.
Role of Governor
- He has to submit a report to the President regarding the administration of such areas, annually or whenever so required by the President.
- The Governor is empowered to direct that any particular act of Parliament or the state legislature does not apply to a scheduled area or apply with specified modifications and exceptions.
- He can also make regulations for the peace and good government of a scheduled area after consulting the tribes advisory council.
The Tribes Advisory Council
- Each state having scheduled areas has to establish a tribes’ advisory council to advice on welfare and advancement of the scheduled tribes.
States having Scheduled Areas
- At present, 10 States namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana have Fifth Schedule Areas.
- Tribal habitations in the states of Kerala, Tamil Nadu, Karnataka, West Bengal, Uttar Pradesh and Jammu & Kashmir have not been brought under the Fifth or Sixth Schedule.
Also read:
References
https://www.civilsdaily.com/news/no-100-quota-for-scheduled-areas/
