Adivasis, reservations and justice

Reservations need to be understood and interpreted as a means to enable social justice to historically marginalised communities

On April 22, 2020, a five-judge bench of the Supreme Court delivered its verdict in the case of Chebrolu Leela Prasad Rao v State of Andhra Pradesh (2020). The main issue dealt with in the appeal was the constitutional validity of the 100% reservations provided to the Scheduled Tribe (ST) candidates for the post of teachers in the schools of scheduled areas by the then Andhra Pradesh government in 2000. The court observed that “providing for 100 per cent reservation is not permissible and it is violative of Articles 14 and 16 (4) of the Constitution of India”.

A review petition was filed by the Akhil Bharatiya Jan Jati Vikas Sangh, All India Federation of SC/ST Organisations, Baba Sahab Dr Bhim Rao Ambedkar Vidya Peeth and others.
The judgement preferred the principles of “equality” over “justice” and runs contrary to the constitutional vision of social justice. It overlooked the justice dimension only to deepen the distrust among the Adivasi communities towards the judiciary. The top court failed to recognise the importance of the evolution of the Fifth Schedule as an alternative arrangement of governance to administer the scheduled areas.

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However, the critical point here is not just the historical context, but the democratic content. The missing links in the verdict are denial of Adivasis’ democratic rights, preference for equality over justice and the unique role of the Governor in the Constitution with special reference to the Fifth Schedule.

Denial of democratic rights

By quashing the GO of the then AP government, the court denied the democratic rights of Adivasis guaranteed by the Constitution. It is unfortunate that the highest court of the land is failing the Adivasis through its judgements not only in reservation aspects but more so in the cases of Adivasi land alienation, particularly in the Fifth Schedule areas. However, the root of the problem goes beyond the issue of reservation. This has more to do with the inadequate understanding and recognition of the alternative governance scheme instituted in the Fifth Schedule of the Constitution.

In this context, it is worth to recollect the words of the former Chief Justice of India, Mohammad Hidayatullah, who called the Fifth and Sixth Schedules (Article 244 (1) and (2)) as a “Constitution, within the Constitution, or miniature Constitutions, for certain scheduled areas of India”. The said GO needs to be seen from the perspective of this governance mandate of enabling social justice. In fact, the anthropologist JP Rao, an active defendant of the 100% reservation for ST candidates in the scheduled areas observes that the GO is a policy response to address the issue of teachers’ absenteeism and to contain the Maoist insurrection in the agency tracts of undivided Andhra Pradesh during the late 1980s.

Preference for equality over justice

In A Theory of Justice, John Rawls identifies two “principles of justice” — the first is, “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all”; the second, “social and economic inequalities are to be arranged so that they are both (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity”.

Undoubtedly, the Adivasis are the least advantaged, who constitute 8.6% of the total population as per the Census of India, 2011. They are the most vulnerable section of society with 47.4% living below the poverty line and 41% of them still illiterate. The court should have considered the socio-economic reality of the Adivasis, which is a sufficient condition to extend the provisions of the Articles 14, 15 and 16.

Role of Governor in the Fifth Schedule

Article 244 (1) of the Constitution provides special provisions to administer the Fifth Schedule areas. The Governor is accorded special responsibilities for ensuring peace and good governance in the scheduled areas. This provision is a continuum of the Government of India Act, 1935. With slight modifications, it was adopted by the Government of India in 1950. Section 5(1 to 4) accords special legislative powers to the Governor to oversee the applicability of any State or Union law to the scheduled areas.

Earlier, in the case of BK Manish and others vs. State of Chhattisgarh & others (2013), the High Court of Chhattisgarh ruled that the Governor does not have discretionary powers in framing the rules for the Paragraph 4(3) of the Fifth Schedule. In this case too, the Supreme Court upheld the ruling of the Chhattisgarh High Court in November 2014. This is in contrast to the observations made by the then Attorney General of India according to whom in performing “the functions and exercise of powers under the Fifth Schedule, the Governor is not bound by the aid and advice of the Council of Ministers of the State”.

Fifth and Sixth Schedules

A skewed understanding of the Fifth Schedule, and specifically the role of Governor is antithetical to the plurality of democracy and constitutional vision of social justice. It must be noted that both Fifth and Sixth Schedules lay alternative governance mechanisms to administer the scheduled areas different from that of the mainstream governance scheme. Hence, the usual principles of equality and equity do not automatically apply to the Fifth and Sixth Schedules.

The legitimacy of the reservations needs to be understood, analysed and interpreted as a means to enable social justice to the historically marginalised communities. The criticality of the Fifth and Sixth Schedules has to be widely disseminated and must be dealt with utmost sincerity in the legal curriculum of universities and institutions of legal education. Let us hope that the courts see the inclusive aspects of the provisions of the Fifth Schedule as part and parcel of equity and equality in its future verdicts.

(The author is PhD Fellow & Guest Faculty at Institute for Social and Economic Change (ISEC) and University Law College, Bangalore University. These views are personal)

 

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