The Supreme Court has refused to reconsider its April 2020 verdict quashing the government’s proposal to enable 100 per cent reservation to local Scheduled Tribes (STs) for teachers’ posts in the Scheduled Area of united Andhra Pradesh.
- The Review Petitions were filed by both the Telangana and Andhra governments as well as some tribal groups.
Background of The Litigation
- Initial Government Order: The Governor of United Andhra Pradesh in exercise of powers under 5(1) of Fifth Schedule to the Constitution had issued an order in 1986 reserving teaching posts in educational institutions of the Scheduled Area for STs only.
- The order was quashed by the Administrative Tribunal in 1989.
- A parallel litigation:
- The Government then Issued another Order allowing non–tribals to hold the posts of teachers till such time qualified local tribals are available.
- This Order was challenged through a Writ Petition filed by non-tribal teachers when their services were terminated in 1993.
- The Single Bench of the High Court of Andhra Pradesh quashed the order in 1996.
- The Government Order was upheld by a Division Bench in a Writ Appeal filed by the government in 1997, But The Supreme Court nullified it again in the favour of the non-tribal appointees in 1998.
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- Fresh Notification: The Government of Andhra Pradesh again notified in 2000 under 5(1) of the Fifth Schedule providing 100 per cent reservation to local STs for teaching posts in the Scheduled Area.
- Final Supreme Court Order: A five-judge Bench of the Supreme Court in 2020 struck down the order while staying the tribal teacher appointments already made with a warning to both state governments to not attempt a similar exercise in the future.
- Snippets of The Ruling:
- The governor’s power under Para 5(1) of Fifth Schedule is limited only to modify the laws made by Parliament or state legislatures.
- This power does not extend to the subordinate legislations covered by Article 309 of the Constitution in relation to the condition of recruitment and public services of persons in the state.
- Limitations of Governor Power: The Governor cannot override the fundamental rights guaranteed under Part III of the Constitution or the Presidential order Article 371D which provides reservation in direct recruitment for local candidates.
- Illegality of 100% Reservation: The 100 per cent quota in jobs for local tribals is impermissible as the outer limit for Reservation is 50 per cent as specified in the Indra Sawhney case 1992
Impact of The Ruling
- Acted as a Precedent: The Supreme Court Ruling led to the overturn of the reservation rule in Chhattisgarh State (Nandakumar Gupta Vs State of Chhattisgarh 2022) and Jharkhand State (Satyajit Kumar vs The State Of Jharkhand in August, 2022 by Supreme Court) made to benefit the STs.
- Tribal Alienation: The Ruling can aggravate the problem of tribal land and resource alienation as government records show that already more than 50 per cent of land is held by non-tribals in the Scheduled Area of united Andhra Pradesh.
- The tribal protective Land Transfer Regulations 1 of 70 in both Telangana and Andhra prohibits transfer of land in favour of non-tribals, either from tribals or non-tribals, in the Scheduled Area.
- Catalyse Demographic Change: The ruling can bring a radical demographic change in the tribal and non-tribal population in the Scheduled Area, which would invariably lead to the demand for de-scheduling of the area, making STs vulnerable in their own land.
- Ignoring the Intent of the Legislation: The Intention behind the Order is to overcome the issue of Teacher Absenteeism and improve the literacy levels of STs by making local tribal teachers available, who will teach the children in their language and idioms known to them, aligning with local traditions and cultural context.
- Stalling Socio Economic Progress: The situation may also stand in the way of taking up other socio-economic development schemes for STs leading to a tense situation in the hypersensitive areas.
Remedies Available before the State Governments
- Curative Petition: It is the final legal recourse against the dismissal of the review petitions in The Supreme Court.
- Legislative Route: A new law repealing section 5(2) of Fifth Schedule of the Constitution is needed to empower the governor to promulgate a regulation to maintain peace and good governance in the Scheduled Area, with the assent of the President of India to provide 100 per cent quota in jobs to the local STs.
- The Tribes Advisory Council in Andhra Pradesh has already passed resolutions in its 111th, 112th and 113th meetings held between 2020 and 2022 recommending to bring a new law under 5(2) of Fifth Schedule to safeguard the interest of tribals.
- Amend Article 371 D: The Government of Andhra Pradesh on the request of itsTribal Welfare Department drafted a new regulation and also a presidential notification to amend the Article 371 D of the Constitution to provide special quota for local tribes in the Scheduled Area of the state.
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The Fifth Schedule of the Indian Constitution
- It pertains to the administration and governance of scheduled areas and scheduled tribes in states across India, excluding Assam, Meghalaya, Tripura, and Mizoram (which are covered under Schedule 6)
- Objective: This schedule delineates the powers and responsibilities of various governmental bodies in ensuring the welfare, autonomy, and cultural preservation of scheduled tribes within the specified regions.
- Present Status of Scheduled Areas in the Country:
- Fifth Schedule Areas are present in 10 States only, namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Telangana.
- Exclusion of Tribal Habitats: 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.
- Declaration of Scheduled Areas:
- The President is empowered to declare an area to be a Scheduled Area
- Alter area: The President can make changes in its area & boundary, rescind such designation or make fresh orders for such redesignation for an area in consultation with the Governor of state.
- Executive Power:
- The Governor has a special responsibility with regard to the Schedule Areas. The Governor submits a report to the President regarding the administration of such areas and The Centre can give directions to states for such areas.
- Administrative Structure:
- Tribes Advisory Council (TAC): Each State having scheduled areas has to establish a TAC consisting of 20 members ( 3/4th of whom are to be the representatives of STs in the State Legislative Assembly) to advise on welfare measures.
- The Governor may make rules prescribing or regulating the TAC,
- The number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof
- The conduct of its meetings and its procedure in general
- If the President so directs, a similar council can also be established in a state with scheduled tribes that lack scheduled areas.
- Laws Applicable to Scheduled Areas
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- Section 5(1):The Governor is empowered to direct if any Central or State Act applies to such areas or applies with any modification.
- Section 5(2): Governors can make regulations for peace & good governance of SAs after consulting TAC.
- Such regulations may prohibit or restrict the transfer of land by or among members of the scheduled tribes.
- Regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.
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August 1, 2024
