At the advent of democracy, the current territory of Andhra was partly under the Madras State and partly as Hyderabad estate under the Nizam.

It was after the reorganization in 1956, Andhra Pradesh became the first Indian state to be crafted on linguistic basis.

As on 26 January 1950, thus, there was no Andhra Pradesh as we know today.

However, the wise framers of the Constitution were conscious of the tribal presence in India and they crafted Article 244(1), Schedule V and VI in the Constitution for the better administration of ‘Scheduled Areas’ and ‘Tribal Areas’.

Similarly, Articles 15(4), 15(5), 16(4), 16(4A), 46, 338, 342, as they stand today, voice the same importance.

Under Schedule V, Part C, Para 6, the President has the power to declare any area as a ‘Scheduled Area’ i.e. where the population primarily comprises of members recognised as per the Schedule.

Areas in the state have been designated to be Scheduled Areas under the Constitution. These provisions vest the responsibility of governance and administration of the Scheduled Areas in the President and the Governor of the state.

The Constitution provides for the institution of the Tribal Advisory Council (TAC) comprising of the legislators representing the tribal tracts.

This schedule has far-reaching implications with respect to the tribals’ right to land and the other resources.

No non-tribal can buy land in the Scheduled Areas. The adivasi in these areas has a presumptive right over the land.

In 1974, vide a constitutional amendment, Article 371D came to be inserted in the Constitution laying down important ‘special provisions’ with respect to the State of Andhra Pradesh.

This included presidential powers to provide for equitable opportunities and facilities for people from different parts of the state and establishment of an Administrative Tribunal to hear disputes.

In 1976, the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 was notified, which in turn, has notified 33 STs in the state.

The A.P. Regulation of Reservation and Appointment to Public Services Act, 1997, deals with reservation in the state in the field of public services.

The state also later faced issues relating to extremism in tribal areas and many districts are still under the influence of extremist ideologies.

For the purposes of the present article, let us take the data from the 2001 Census when the population of Andhra Pradesh was 76,210,007.

Of this, 5,024,104 (6.6 per cent) were Scheduled Tribes (STs). Out of the 33 STs, five namely, Goudu, Malis, Nayaks, Thoti and Valmiki have been notified with an area restriction.

Goudu, Nayaks and Valmiki have been notified in the Agency tracts area, which comprises Srikakulum, Vizianagaram, Visakhapatnam, East Godavari, West Godavari and Khammam districts.

Malis have been notified in the state excluding Adilabad, Hyderabad, Karimnagar, Khammam, Mahbubnagar, Medak, Nalgonda, Nizamabad and Warangal districts.

Thotis have been notified in the Adilabad, Hyderabad, Karimnagar, Khammam, Mahbubnagar, Medak, Nalgonda, Nizamabad and Warangal districts.

Twelve tribes namely, Bodo Gadaba, Gutob Gadaba, Bondo Poraja, Khond Poroja, Parangiperja, Chenchu, Dongaria Khonds, Kuttiya Kondhs, Kolam, Kondareddis, Konda Savaras, and Thoti have been recognised as Primitive Tribal Groups (PTGs).

Out of the 33 STs, Sugalis are numerically the largest ST with a population of 2,077,947 constituting 41.4 per cent of the state’s ST population.

They are followed by Koya 568,019 (11.3 per cent), Yenadis 462,167 (9.2 per cent), Yerukulas 437,459 (8.7 per cent) and Gond 252,038 (5 per cent).

These five (5) STs together account for 76 per cent of the ST population of the state.

Among the major STs, Yerukulas have reported the highest literacy rate (45.4 per cent), followed by Koya (41.8 per cent), Gond (36.4 per cent), Yenadis (35.3 per cent) and Sugalis (34.3 per cent).

The female literacy rate of 26.1 per cent among the ST population is a matter of concern as almost a fourth of ST females are illiterate in the state.

This data is important to understand the tribal presence and tribal equations as it stood in 2000 in the state of Andhra Pradesh before we attend the facts of the case.

Facts At Hand

In short, the factual matrix of the case lied in determining constitutional validity of the GO issued in 2000. The backdrop of this challenge lies in a 1986 GO, issued by the Governor of Andhra Pradesh in exercise of his power under Para 5(1) of Schedule V to the Constitution of India, directing the posts of teachers in educational institutions in the Scheduled Areas shall be reserved for STs only.

It is extremely important to quote Para 5(1) of Schedule V here because it vests extraordinary legislative powers with the Governor –

“5. Law applicable to Scheduled Areas.—(1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.”

This is a unique provision because of its powerful language. It starts with the extremely valuable power of the Governor, exercisable discretionally and overrides the entire text of the Constitution.

There are very few constitutional provisions which make use of this language [See Article 35, 245, 364 etc].

But this power of the Governor is still not unfettered but carries implied inhibitions which we will discuss further.

In 1989, the Andhra Pradesh Administrative Tribunal quashed the 1986 GO vide order dated 25 August 1989. This reached the Supreme Court leading to its dismissal as withdrawn in 1998.

In between, another GO dated 25 April 1987 was issued to amend the 1986 GO to allow appointment of non-tribals to hold the posts of teachers in the Scheduled Areas till such time qualified local tribals were not made available.

Non-tribals who were appointed as teachers in the Scheduled Areas approached the Andhra Pradesh High Court in 1993 against termination of their services.

The same was allowed by a single judge in 1996 and the 1987 GO and the advertisements were held to be violative of Article 14.

In a writ appeal, the order of the single bench was set aside by the Division Bench vide judgment and order dated 20 August 1997.

The non-tribal appointees preferred Civil Appeal 6437/1998 before the Supreme Court, which was allowed on 18 December 1998.

After the Supreme Court rendered its decision on 18 December 1998, the government issued a fresh notification in 2000 (impugned in the case under analysis) effectively providing for 100 per cent reservation in respect of appointment to the posts of teachers in the scheduled areas.

The Administrative Tribunal set aside the GO. Notably, this GO of 2000 did not amend the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997.

The provisions of the other Acts mentioned in the notification did not deal with the extent of reservation.

Sections 78 and 79 of the A.P. Education Act, 1982 and Sections 169, 195, and 268 of the A.P. Panchayati Raj Act, 1994, are not related to reservation.

The rules were framed under the proviso to Article 309.

They were not framed under the main provision by the legislature. The Governor in the exercise of power under Para 5(1) of Schedule V could have amended the Public Services Act, 1997, or direct it not to apply to Scheduled Areas.

Aggrieved thereby, writ petitions were filed in the High Court, a three-Judge Bench by majority (2:1) upheld the validity of the G.O.

The majority view opined that historically, scheduled areas were treated specially, and affirmative action taken was in the constitutional spirit.

The notification was a step for increasing literacy in the scheduled areas and also aimed at providing availability of teachers in every school in the scheduled areas.

A 100 per cent reservation can be sustained on the ground that it was based on intelligible differentia, and the classification has nexus with the object sought to be achieved.

The GO became necessary considering the phenomenal absenteeism of the teachers in the schools situated in the scheduled areas and was a step in aid to promote educational developments of tribals.

In extraordinary situations, reservation can exceed 50 per cent. The Governor possessed the power to issue the impugned notification under Schedule V, para 5(1) of the Constitution.

The same overrides all other provisions of the Constitution, including Part III of the Constitution of India.

The minority view opined that providing 100 per cent reservation for Scheduled Tribes in scheduled areas offends the spirit of Articles 14 and 16.

The Governor is not conferred power to make any law in derogation to Part III or other provisions of the Constitution of India in the exercise of his power under Clause I, Para 5 of Schedule V.

It was also held that the GO was discriminatory as the same adversely affects not only the open category candidates but also other Scheduled Castes, Scheduled Tribes, and backward classes.

It also opined that the reservation under Article 16(4) should not exceed 50 per cent. However, little relaxation was permissible.

The rules made under Article 309 of the Constitution could not be treated as an Act of Parliament or State Legislature.

The matter reached the Supreme Court thus.

The Questions of law

The court framed the following questions of law:

What is the scope of paragraph 5(1), Schedule V to the Constitution of India?
1. Does the provision empower the Governor to make a new law?
2. Does the power extend to subordinate legislation?
3. Can the exercise of the power conferred therein override fundamental rights guaranteed under Part III?
4. Does the exercise of such power override any parallel exercise of power by the President under Article 371D?
Whether 100 per cent reservation is permissible under the Constitution?
Whether the notification merely contemplates a classification under Article 16(1) and not reservation under Article 16(4)?
Whether the conditions of eligibility (i.e., origin and cut-off date) to avail the benefit of reservation in the notification are reasonable?

Findings

The court held the following:

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.
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.
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.
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 149 guaranteed under Part III of the Constitution.
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.
GO of 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’s judgment.
The notification 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 conditions of eligibility in the notification with a cut-off date, i.e., 26 January 1950, to avail the benefits of reservation, is unreasonable and arbitrary one.

However the bench speaking through Justice Arun Mishra went one step further and directed that the appointments already made under the GO of 2000 shall be allowed to continue on a condition that the reorganised states i.e. the States of Andhra Pradesh and Telangana will not 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. The court also directed the respondents-states not to exceed the limits of reservation in future but not before imposing cost of Rs 5 lakh on each.

Flaws

The judgment while holding the upper limit of 50 per cent reservation limit is correct. The judgment is also correct in holding that the Governor’s power in relation to the subject matter at hand are not unfettered and a Governor cannot act beyond the scope and width of powers given by the Constitution.

However, the court did not properly adjudicate the historical connotations to the legislative intent behind incorporating such a law.

This has to be done on an area-to-area basis. The intent of the action of the Governor behind brining in a notification has to be given due credit, otherwise, the judiciary will eventually turn itself into the highest legislative chamber in the country.

Legislative intent should be answered with a language of enthusiasm to give a purposive construction to the same.

It is extremely important to note two more concerns this judgment as laid down.

In Para 107 of the judgment, the Supreme Court has recorded an obiter mooting a revision of the lists of SCs and STs.

It has recorded a categorical finding that advanced and affluent sections of SCs and STs are cornering all benefits and do not permit a trickle down.

This finding by a five-judge bench of the Supreme Court, if not reviewed, will stay for a long time and will hamper the decades of progress the under privileged sections of the society have made.

Lest we forget, equality is still viewed with the eye of Moses looking over into the promised land.

The Supreme Court till now has had only one ST judge – Justice H.K. Sema. The court in para 107 wrote that “their…..way of life differs from the ordinary people, their language and their primitive way of life makes them unfit to put up with the mainstream and to be governed by the ordinary laws. It was intended by the protective terms granted in the constitutional provisions that they will one day be part of the mainstream and would not remain isolated for all time to come…… as such required a helping hand to uplift them and to make them contribute to national development and not to remain part of the primitive culture. The purpose of the constitutional provisions is not to keep them in isolation but to make them part of the mainstream. They are not supposed to be seen as a human zoo and source of enjoyment of primitive culture and for dance performances.”

As this judgment is by five-judges of the Supreme Court, this will also apply to other states and the central government.

We are conscious of the fact that every state will have different quantifiable data and different set of facts on which the law is to be applied, but even then, this judgment will have to be kept into consideration while making all policies in relation to reservations to STs throughout.

We must also explore the option of Union of India as Parens Patriae to come forward and seek abeyance of this judgment till a policy considering overall aspects of the issue are considered.

The judgment also lays down the law in respect of the Governor’s power to make a law or amend a law under powers of Para 5(1) of Schedule V of the Constitution. This judgment restricts this unfettered power of the Governor to issue a notification directing that any state or even any central law may not apply to a scheduled area or shall apply to the area with modifications and exemptions.

This will apply squarely to all states where Schedule V of the Constitution is applicable.

Further, the court in the ‘Relief’ portion at the fag end of the judgment has saved the appointments made till now but with a condition that the two states will not attempt crafting a similar notification in the future. Doing so will not save any appointments made from 1986 under the notification.

This in my view violates the doctrine of parliamentary sovereignty and principle of cabinet responsibility.

It is trite law that the Supreme Court renders a judgment on a certain set of facts.

It cannot base a judgment and craft a contingent condition on probabilities and presumptions.

The Supreme Court also cannot deprive the state legislature of its power to legislate.

This would violate the very essence of democracy by snatching away the power of representatives of the people to legislate.

It is also settled law that the Supreme Court cannot restrict the unbridled power of the parliament or the state legislature to make a law on any subject which is constitutionally permissible.

The powers of judicial review have to be exercised judiciously. The judgment is silent on ‘prospective overruling’ but uses this doctrine in effect without assigning any reasons.

Usurping powers to make laws on a mere presumption without taking into consideration that in future, the need to do may arise, is violative of the constitutional doctrine of separation of powers and legislative supremacy.

The judgment is on facts before the court. What the legislature may do later on should not be restricted merely because the present facts were legally unstable.

The moonlight may be clear and shiny. Should it be filtered only because the moon has spots?

Namit Saxena

Get Swarajya in your inbox.