Scores of people from tribal communities in Polavaram gathered on Saturday for a protest. With their faces covered and physical distancing in mind, the protesters held placards demanding that the state must continue to implement 100% reservation for Scheduled Tribes in educational institutions located in scheduled areas. Tribal rights organisations across Andhra and Telangana are registering their protest against a recent Supreme Court judgment quashing the 100% reservation for ST teachers in the Telugu states.
In the order dated January 10, 2000, the Governor of erstwhile Andhra Pradesh had directed that all teaching posts in schools located in scheduled areas in the state will be filled by local ST candidates alone, of whom 33% must be women. “Local candidates” meant those whose families had been living in the area continuously since January 26, 1950. This GO was contested by petitioners Chebrolu Leela Prasad Rao and others.
Tellam Ramakrishna from Andhra Pradesh Girijana Sangam says the struggle for complete reservation for STs in education and other sectors is a longstanding one. “There has been opposition since the first time such reservation was put in place in 1986,” he said. While a few protests were held outdoors, tribal groups and organisations across the Telugu states are upset with the judgment and are mulling action, bounded by the lockdown.
Grounds for absolute reservation
According to the government order, the 100% reservation was implemented to strengthen education infrastructure in scheduled areas, to promote education development and to protect interests of tribals, and to solve the phenomenon of teacher absenteeism in remote areas.
While a similar order was previously passed in 1986, it was quashed by the Andhra Pradesh Administrative Tribunal in 1989. The state government later withdrew an appeal filed in the SC challenging the tribunal’s decision, but ended up passing a similar order again in 2000, which was later upheld by a High Court bench in 2001.
Terming the absolute reservation “unreasonable and unfair”, the SC judgment said, “...we are of the considered opinion that providing 100% reservation to the scheduled castes and scheduled tribes were not permissible. The Governor in the exercise of the power conferred by para 5(1) of the Fifth Schedule of the Constitution, cannot provide a 100% reservation.”
Setting aside the government order from 2000, a five-judge Constitution bench headed by Justice Arun Mishra said that the reservation policy was “illegal”, “arbitrary”, and “not permissible” under the Constitution.
Objecting to the verdict, the Human Rights Forum in a statement wrote that the judgment dilutes the special status accorded to Scheduled Tribes living in Fifth Schedule areas. HRF noted that the rationale for the absolute reservation was that non-tribals with no empathy towards tribal people could not be expected to work dedicatedly for their welfare.
Candidates from other categories
Referring to the 1992 Indra Sawhney vs. Union of India verdict, which set a threshold of 50% on reservations barring extraordinary circumstances, the SC judgment said, “There were no such extraordinary circumstances to provide a 100% reservation in Scheduled Areas. It is an obnoxious idea that tribals only should teach the tribals. When there are other local residents, why they cannot teach is not understandable. The action defies logic and is arbitrary. Merit cannot be denied in toto by providing reservations.”
The appeal against the Government Order was made on the grounds that the absolute reservation deprives candidates of other categories, an argument noted by the bench as well. “By providing 100% reservation to the scheduled tribes has deprived the scheduled castes and other backward classes also of their due representation. 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. It also impinges upon the right of open category and scheduled tribes who have settled in the area after January 26, 1950,” the judgment said.
Appala Narasaiah, state secretary of Andhra Pradesh Girijana Sangham, said, “We are not against non-tribals. We are only asking for our constitutional right as per the Fifth Schedule. The reservation over the past several years has proven beneficial for education and employment among STs in Scheduled areas.”
HRF in its statement contended that the 100% reservation was accorded on the basis of Article 46 of the Directive Principles of the Constitution, in the interest of promoting the educational and economic interests of STs. Therefore the reservation was made under Article 16(1), while the 50% cap only applies to reservations under Article 16(4), the statement said.
Demands of tribal rights groups
Civil society groups have appealed to the state governments of Andhra Pradesh and Telangana to file a review petition on the SC judgment. “Because of the lockdown, we are unable to gather outside, or communicate the issue to public representatives properly,” Ramakrishna said.
Narasaiah said that the judgment posed a threat to reservations for STs across various government departments. “At the state level, reservations to varying degrees for STs in Scheduled areas have been implemented in around 20 government departments through nearly 35 different government orders. Unless absolute reservation for STs in Scheduled areas is brought in place through legislation, tribal people risk losing out on several opportunities we have strived for,” he said.
Girijana Sangham has demanded that the state government pass an immediate ordinance to allow the 100% reservation to continue.