A five judge Constitutional Bench headed by Justice Mishra has commenced the hearing on the issue of granting 100% reservation to the members of ST community for the posts of a teacher in Scheduled Area.
In the Article 244(1) of the Constitution, expression Scheduled Areas means such areas as the President may by order declare to be Scheduled Area
Reservations in granting such reservation:
Breach of limit
There is a demand of 100% reservation instead of the 50% limit.
Perpetuity of the reservation
Initially, the reservation was meant for the transitional phase for ten years (of the coming into force of the constitution, then it has been extended every ten years.
Has the reservation helped in improving culture of tribal areas?
The bench has asked for statistics to prove the positive impact of reservation in such areas.
Wide impact of granting the reservation
It impacts Article 15, 16 and 17, which is on untouchability along with the DPSPs, in Articles 37, 38, 47 and many such provisions in the law relevant to Scheduled Tribes.
Whether this reservation has a local limit of that particular area or district?
While granting 100% reservation and that too area-wise, chances of Schedule Caste are also minimized.
"Whether the power to make 'exceptions and modifications' (under Para 5(1) of the Fifth Schedule) has such wide scope?
This will grant arbitrary power to the governor which could be derogatory to the Legislature. The term “exceptions and modifications' is narrower.
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
16. Equality of opportunity in matters of public employment
- There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
- No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State
- Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment
- Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State
- Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination
Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law
Article 14 is not only about classification but also specifies how it deals with arbitrariness.
"...equality clauses in our constitutional ethic have an equalising message and egalitarian meaning which cannot be subverted by discovering classification between groups and perpetuating the inferior-superior complex by a neo-doctrine. Judges may interpret, even make viable, but not whittle down or undo the essence of the article. This tendency, in an elitist society with a diehard caste mentality, is a disservice to our founding faith, even if judicially sanctified..."
Article 16 enables the state to provide reservations
Both these articles have to be read harmoniously with Article 14 such that the power of the state to provide for quotas cannot obliterate the equality principle enshrined in Article 14 and Article 16.
M Nagaraj and Others vs Union of India.
A five-judge bench put in force several restrictions on implementing quotas. These included obtaining quantifiable data on the backwardness of a class, data on inadequacy of representation, the application of the “creamy layer” concept, efficiency in administration and the ceiling of 50% for reservations.
Jarnail Singh vsLacchmiNarain Gupta
The court refused to reconsider Nagaraj but modified the judgment on one aspect:
It accepted the assumption of backwardness of a group by virtue of being declared Scheduled Caste or Scheduled Tribe and said no data to justify the backwardness was required.
However, it upheld the other restrictions imposed by Nagaraj:
Data on adequate representation in jobs, creamy layer and efficiency in administration.
Other Safeguard Provisions for STs in India
I. Educational & Cultural Safeguards
Art. 15(4):- Special provisions for advancement of other backward classes(which includes STs);
Art. 29:- Protection of Interests of Minorities (which includes STs);
Art. 46:-The State shall promote, with special care, the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes, and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation,
Art. 350:- Right to conserve distinct Language, Script or Culture;
Art. 350:- Instruction in Mother Tongue.
II. Social Safeguard
Art. 23:- Prohibition of traffic in human beings and beggar and other similar form of forced labour;
Art. 24:- Forbidding Child Labour.
III. Economic Safeguards
Art.244:- Clause(1) Provisions of Fifth Schedule shall apply to the administration & control of the Scheduled Areas and Scheduled Tribes in any State other than the states of Assam, Meghalaya, Mizoram and Tripura which are covered under Sixth Schedule, under Clause (2) of this Article.
Art. 275:- Grants in-Aid to specified States (STs&SAs) covered under Fifth and Sixth Schedules of the Constitution.
IV. Political Safeguards
Art.164(1):- Provides for Tribal Affairs Ministers in Bihar, MP and Orissa;
Art. 330:- Reservation of seats for STs in LokSabha;
Art. 337- Reservation of seats for STs in State Legislatures;
Art. 334:- 10 years period for reservation (Amended several times to extend the period.);
Art. 243:- Reservation of seats in Panchayats.