Skip to main content

SC judgement opens flood gates to non-tribals to move to Scheduled Areas


By Dr Palla Trinadha Rao
The verdict of the constitutional bench of Supreme Court (SC) comprising of five judges, striking down the government order manuscript (GO Ms) No 3 of 2000 issued under 5(1) of the Fifth Schedule to the Constitution by the United Andhra Pradesh, providing 100 percent reservation to the local candidates of Scheduled Tribes(STs) in the Scheduled Area, in Chebrolu Leela Prasad Rao & Ors vs State of AP & Ors. on April 22 has given rise to a great concern among the tribals of Andhra and Telangana states.
The fear of the tribals is that the existing constitutional protections and regulations promulgated by the Governor under Fifth Schedule of the Constitution will be replaced by the general rules and the result would be that lakhs of tribals would be evicted from their lands, and lost the employment opportunities in the Government Jobs. The decision of the SC court reversing the full bench decision of the AP High court, upholding the GO Ms No 3, has raised several contentious issues concerning the historical and socio perspective towards tribals and constitutional scheme of the Fifth Schedule to the Constitution.
The first and foremost point raised by the SC bench was on the competency of the Governor to issue a GO Ms no 3, exercising his power under Fifth Schedule to the Constitution. The SC held that the power of the Governor does not extend to subordinate legislation and it is subject to some restrictions, and also cannot override the fundamental rights guaranteed under Part III of the Constitution. Further it held that the power of Governor has to be exercised harmoniously with an order issued under Article 371D by the President of India, but not in conflict thereof. These findings are questionable.
Article 244 provides that the administration and control of the Scheduled Areas shall be in accordance with the Fifth Schedule to the Constitution and it is regarded as “a Constitution within the Constitution” for the special governance of Scheduled Areas. The constitutional scheme is well recognized in several judgments of the SC such as Samatha vs. State of Andhra Pradesh (AIR (SC)1997) , which is to preserve the tribal autonomy, their culture and economic empowerment, to ensure social, economic and political justice and for preservation of peace and good governance in the Scheduled Areas.
The Fifth Schedule has been designed to protect tribals from social injustice and exploitation in furtherance of Article 15(4) and Article 46, and the SC refused to hold tribal protective legislations to be violative of various fundamental rights, including Articles 14 and 19(1)(g).
In the case Lingappa Pochanna vs. State of Maharashtra (1985) 1 SCC 479, the SC held that there is a constitutional duty on the state to take positive and stern measures for the survival and preservation of the integrity and dignity of tribals. The SC further in State of Nagaland Vs Ratan Singh reported in (1966) 3 SCR 830 where reference was made to Article 244 of the Constitution of India. The Challenge was made to statutes and Rules providing for the exclusion of the jurisdiction of Civil and Criminal courts in the discretion of the Governor.
The SC upheld the legislative competency of the Governor under Fifth Schedule to make such Statutes and Rules. In Ram Kirpal Bhagat v. State of Bihar, (AIR 1970 SC 951), the SC while dealing with the Scheduled areas and the law applicable to the Scheduled Areas under the Fifth Schedule of the Constitution held that application of law is one of the recognized form of legislation.
The powers conferred on Governor under the Fifth Schedule was rightly interpreted by the SC in Samatha case, that it is a beneficent power, to be exercised for the social and economic advancement of the Scheduled Tribes. The “non withstanding anything in the constitution ”clause in the Fifth Schedule, empowers the Governor to make legislations even subjects touching the Articles 14, 15 and 16 of the Constitution and also applicable to the any enactment uncovered by the notification issued.
It is within this constitutional and policy approach that the Fifth Schedule and laws relating to Scheduled Areas, including the GO Ms NO 3 of 2000 must be examined. The SC bench should have considered that the G.O.Ms 3 of 2000 is aimed at implementing the directive in Art 46 of the Constitution to subserve the educational interests of tribal children, which are adversely affected by the phenomenal absenteeism and indifference to duty on the part of the nontribal teachers.
The experience in the tribal areas, largely shows that the non tribal teachers show no interest in the educational advancement of the tribal children but spend all their time seeking means of getting a transfer outside the Scheduled Area. The GO Ms 3 is to be construed, not primarily as a measure of reservation in jobs, but as a measure aimed at safeguarding the educational interests of Scheduled Tribe children as part of the constitutional obligation by virtue of the Fifth Schedule of the Constitution read with Art 46.
The Presidential Notification issued under Art 371 D for the recruitments in the context of the reorganization of the State cannot take away the constitutional power of the Governor and the purposes of these constitutional powers are different and distinct and cannot pit against each other to decide the validity of the Go Ms No 3.
The other findings of the SC in the case is that the G.O.Ms. No.3/2000 providing for 100 per cent reservation is not permissible under the Constitution, the outer limit is 50 per cent as specified in Indra Sawhney case. And the notification issued by the Governor in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India.
The SC should have held that the upper limit of 50% prescribed in the Indira Sawhney case applies only to the reservation given under Art 16(4), i.e., to backward classes of citizens who are not adequately represented in the services under the State and not to reservation that may be given on other grounds. The SC held in the cited case the that reservation can be given also under Art 16(1) itself, and not only under Art 16(4). Art 16(4) is not exhaustive of reservations, and reservation can also be made under Art 16(1) provided the State can justify such reservation in public interest.
The rationale, as the preamble to the GO Ms No 3 shows, stems from the need to avoid and overcome absenteeism of teachers in the schools in the scheduled areas, leading to fall in standards of teaching in the schools. This is relatable, not exclusively to Art 16(4), but to Art 46, a Directive Principle of State Policy, which directs the State to take special care for the educational advancement of the scheduled tribes and the provisions of the fifth schedule, particularly Clause 5 of that Schedule.
Thus the reservation provided by GOMs 3 of 2000 is not under Art 16(4) but under Art 16(1), with the rationale of Art 46, and is therefore a valid reservation, and moreover, it is not to be counted for the purpose of the 50% upper limit for reservations under Art 16(4). The GO Ms no 3 is an emanation from the Fifth Schedule of the Constitution as such it is an act of constitutional legislation but not executive.
On the point of upper limit of reservation of 50 % in the Indira Sawhney vs State (AIR 1993 SC 477) the SC held that the upper limit of 50% can be breached in extraordinary circumstances, especially with reference to the population of far flung and remote areas, for whose benefit it may be imperative to breach the limit. Therefore the decision of the Governor under Fifth Schedule issuing notification providing 100 percent reservation for the STs in the Scheduled areas completely matches this description and permissible under law.
The other concern is that the SC held in the GO Ms no 3 case that no law mandates that only tribal teachers can teach in the scheduled areas and it is also depriving the employment opportunities of the non tribals, including the STs who have settled in the Scheduled Area after the cutoff date 26-01-1950 for the eligibility to secure benefit of the GO Ms No 3.
In P.Rami Reddy & Ors. Etc vs State Of Andhra Pradesh & Anr. (1988 AIR 1626) on the point of constitutional validity of the AP Schedule Area Land Transfer Regulations 1 of 70 promulgated by the Governor under Fifth Schedule to the Constitution, held that “ In the absence of protection, the economically stronger ‘non-tribals’ would in course of time devour all the available lands and wipe out the very identity of the tribals who cannot survive in the absence of the only source of livelihood they presently have. It is precisely for this reason that the Architects of the Constitution have with farsight and foresight provided in paragraph 5(2) of Fifth Schedule that the Governor may make regulations inter alia “prohibiting or restricting the transfer of land in the scheduled areas notwithstanding any provision embodied in the Constitution elsewhere”.
Instead of raising a query by the SC how the non-tribals in the Scheduled Area could seek the jobs in the Scheduled Area if their infiltration to the Scheduled Area itself is questionable and regulated under the tribal protective Land Transfer Regulations 1 of 70, has permitted non tribal teachers to secure the jobs in the Scheduled Area. The efficiency of non tribals teachers cannot stand for a test when the local tribal teachers are able to teach their children in the language, idioms, known to them aligning with the local traditions and cultural context. The knowledge and information, skills equipped by the outsiders cannot match with the teaching methods of local STs for their children.
The Panchsheel Doctrine, a set of five fundamental principles devised by Shri. Jawaharlal Nehru, India’s first Prime Minister, enunciated tribal development, which includes that the tribals should develop along the line of their own genius and should avoid imposing anything on them and should try to encourage in every way their own traditional arts and culture. They should be trained and built up a team of their own people to do the work of administration and development and avoid introducing too many outsiders into tribal territory.
Therefore the protection of the tribals culture, their autonomy and way of life is an essential feature of their development. Therefore “any other interpretation would sow the seed beds to disintegrate the tribal autonomy, their tribal culture and frustrate empowerment of them, socially, economically and politically, to live a life of equality, dignity of person and equality of status” as laid down by the SC in Samata case.
In relation to the prohibition of other than local eligible STs for the purpose of GO Ms No 3 is to be understood in the context of the notifications issued by the President of India from time to time declaring the STs under Art 342 of the Constitution. Some of the tribal communities including lambada who are also known as banjara or sugali were declared as a Scheduled Tribe by a Presidential order only in the 1970s. Therefore, the Governor finds that certain communities among the Scheduled Tribes are not adequately represented, notwithstanding the provision of reservations to the STs in general. It is settled law that not only treating equals as un equals but also treating un equals as equals is violative of Art 14.
In this regard the State therefore must necessarily make an equitable subdivision of the reservations where real internal inequality and unequal access to reservations are made out as was said by Justice Chinnappa Reddy in K.C.Vasanth Kumar vs State of Karnataka (1985 Supp SCC 714). The SC in the Indira Sawhney case also held that `there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward` and that `even among the backward classes, there can be a subdivision on a reasonable basis`. Therefore excluding the ST candidates or the parents who are not residents of the Scheduled Area continuously from 26.1.1950 to date for the purpose of securing benefit of the GO Ms3 is neither un constitutional or unreasonable.
Therefore the wisdom of the constitutional bench quashing the GO Ms No 3 is questionable. The Judgement of the SC opens the flood gates to the non-tribals for immigration to the Scheduled Area which further affects the survival and identify of the Scheduled Tribes.

Comments

TRENDING

Crucial to revisit roots, embrace core Hindu principles: love, compassion, harmony

A note on religious leaders'  Satya Dharam Samvad in Haridwar: *** In a groundbreaking gathering, more than 25 religious leaders including Swamis, Acharyas, Pujaris, Gurus, and Sadhvis from all over India convened to discuss the tenets of Hinduism on September 16th, 2023, in Haridwar, to discuss and discern the current trajectory of Hinduism. This brand new initiative, the Satya Dharam Samvad, was inspired to organize its first assembly in response to the December 2021 Dharma Sansad, where hate speech and calls for violence against the Muslim community contravened the essential principles of Hinduism. Religion is being used to incite riots among Hindus, Muslims, Christians, Buddhists, Jains, etc. In the face of such hatred, Swami Raghavendra felt that something meaningful should be done in the present climate. 

Commodification of road accident deaths: The hidden health hazard of motonormativity

By Chandra Vikash*  Jahnavi Kandula, an Indian student from Andhra Pradesh, studying in America was killed in a road accident by a police motor car in January 2023. Now, 8 months after the accident, a bodycam video of Daniel Orderer, who is the vice president of the Seattle Police Officers Guild, has gone viral on social media. He was laughing at her death and saying that “she was 26 years old, anyway… she had limited value… just give her $11,000 (ie Rs 9.13 lakh)”.

Telengana peasant uprising 1946-51: Path breaking period in Communist movement

By Harsh Thakor  Telengana armed struggle from 1946-51 was path breaking period in the Indian Communist Movement, enabling it to reject the Russian insurrectionist path and emulate the Chinese model. The intensity of the movement escalated people’s democratic power to a scale unparalleled in Indian history. It literally dawned a new era. Revolutionary zeal climbed heights rarely traversed in semi-colonies. The death defying spirit which the comrades displayed in giving a blow to the Nizam ruler of Hyderabad and the Razakar landlords will be written forever in the red letters of history. Tragically it was crushed by the Congress party led by Nehru, who mercilessly ordered the army to swoop on the rebellion, with the Communist Party of India adopting a compromising position. It was ample proof of how Nehru and the Congress party collaborated with the feudal landlord class.

Inside Indian energy-mining giant Vedanta's campaign to weaken environmental rules

By Akshay Deshmane  It was 2021 and the COVID-19 pandemic was ripping through India, crippling the country’s health system and bringing the economy to a standstill. But for Anil Agarwal, chairman of the energy and mining giant Vedanta Resources Ltd, the crisis presented an opportunity.

Job opportunity in unexplored territory... to bulldoze hurdles on way to Akhand Aryavart

By Abdul Puncharwala*  Baba and Mama the Jai-Veeru Jodi of Shuddh desi politics bring an excellent opportunity of employment to all the bright matriculate drop-outs busy with their Insta and YouTube reels. Keep your phones aside for a moment and read this advert carefully. It is going to change your life forever.

Abrogation of Art 370: Increasing alienation, relentless repression, simmering conflict

One year after the abrogation by the Central Government of Art. 370 in Kashmir, what is the situation in the Valley. Have the promises of peace, normalcy and development been realised? What is the current status in the Valley? Here is a detailed note by the People’s Union for Civil Liberties , “Jammu & Kashmir: One Year after Abrogation of Art. 370: Increasing Alienation, Relentless Repression, Simmering Conflict”:

Regretful: Kapil Dev retired not leaving Indian cricket with integrity he upheld

By Harsh Thakor  Kapil Dev scaled heights as an entertainer and a player upholding the spirit of the game almost unparalleled in his era. In his time he was cricket’s ultimate mascot of sportsmanship On his day Kapil could dazzle in all departments to turn the tempo of game in the manner of a Tsunami breaking in. He radiated r energy, at a level rarely scaled in his era on a cricket field. Few ever blended aggression with artistry so comprehenisively. Although fast medium, he could be as daunting with the ball as the very best, with his crafty outswinger, offcutter, slower ball and ball that kicked from a good length. Inspite of bowling on docile tracks on the subcontinent, Kapil had 434 scalps, with virtually no assistance. I can never forget how he obtained pace and movement on flat pancakes, trapping the great Vivian Richards in Front or getting Geoff Boycott or Zaheer Abbas caught behind. No paceman carried the workload of his team’s bowling attack on his shoulders in his eras muc

Informal efforts to help children of remote Bundelkhand village unable to go to school

By Bharat Dogra  Rajaram Ka Purva is a remote rural hamlet in Banda district of Uttar Pradesh inhabited by the poorest of the poor. Almost none of the children in this hamlet are able to go to school. The reasons relate to poverty, distance of the nearest school as well as the unsafe path to school.

Understanding universe, time, space: A crucial, unresolved question before humanity

By Prof Sudhanshu Tripathi*  A crucial question before humanity, still unresolved, is to comprehend the true nature and expanse of Time and Space in Universe. If both are indeed limitless, there is no question then to go beyond them. Because both Time and Space are indeed the two key determinants in this mundane world which define the very expanse of the life period of all living organisms and non-living entities and their relative spatial area producing mental and extra-mental consciousness. 

2024 elections in India: An agenda for justice, peace, democracy and environment

By Bharat Dogra  As debates leading up to 2024 union elections in India preceded by some important state assembly become intense, it is not enough to talk about election alignments among various political parties and their seat adjustments; the questions relating to the most important priorities and a future agenda based on justice, equality, peace, environment protection and democracy must get the most importance.