Case Comment: Chebrolu Leela Prasad Rao v. State of A.P. & Ors.

The case comment on Chebrolu Leela Prasad Rao & Ors. v. State of A.P. & Ors analyses how the Court narrowly interpreted the principle of equality and ambiguously applied the tests of equality. This decision has struck down 100% reservation in the job for SC/ST.

Bench: Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and Aniruddha Bose, JJ.

Background

• Article 244, read with Schedule V of the Constitution of India empowers the Governor to use his executive powers for the administration and control of Scheduled Areas and Scheduled Tribes.
• Through the exercise of power under Para 5(1) of Schedule V, the Governor can direct that a particular Act of Parliament or the State Legislature shall not apply to a scheduled area or any part thereof or shall apply with exceptions and modifications, as may be specified in the notification.
• In the year 1989, the Andhra Pradesh Administrative Tribunal (APAT) quashed the G.O. Ms. No. 275 dated 5.11.1986 which reserved the posts for teachers in the Scheduled Areas exclusively for Scheduled Tribes (STs). The decision of the APAT was questioned before the High Court but was later withdrawn and hence dismissed.
• On 25.04.1987, in the backdrop of the previous order of 1986 issued by the Governor, another order G.O. Ms. No. 73 was issued enabling non-tribals to hold the posts of teachers in the Scheduled Areas till such time the qualified local teachers are not available.
• This order was challenged by the non-tribals and was held violative of Article 14 by the High Court of Andhra Pradesh in the judgment dated 5.06.1996. A division bench accepted the appeal of this judgment of the single bench and the 20.8.1997 decision of the division bench validated the impugned order of the Governor.
• On an appeal to the Supreme Court, the decision of the division bench was overruled on 18.12.1998.

Facts of the Case

• In light of this background, a fresh notification was issued by the Governor on 10.01.2000. The said order provided 100% reservation to STs in respect to the posts of teachers in the Scheduled Areas.
• The order stated that the significant reason for providing such reservation was “to solve the phenomenal absenteeism of Teachers in the Schools situated in Scheduled Areas and to protect the interests of local tribals.”
• The APAT quashed this order while the High Court upheld its validity. An appeal was preferred before this bench to settle the validity of this order.

Issues

1. What is the scope of the Governor’s powers under Schedule V?
2. Whether the 100% reservation provided to the STs is valid under the Constitution?

Reasoning

On the scope of Para 5(1) of Schedule V, the Court opined that:

1. The clause under Para 5(1) of Schedule V only provides for exceptions or modifications of legislation passed by the Union or State legislature. This power does not extend to promulgating new laws. The Governor can exclude the applicability of any applicable law but cannot change the object and substance of the applicable law under Para 5(1).
2. Under Para 5(1) it is mentioned that such power of the Governor is limited to the laws made by the Union and State legislature. Therefore, a law promulgated by subordinate legislation is not under the ambit of scrutiny of the Governor.
3. This power exercised by the Governor is subjected to Part III of the Constitution. If this is not so, Article 13 becomes redundant. The Governor has this power to control the Scheduled Areas. It is not provided to prevail over the Constitution. The Governor can exercise his power not to apply or apply is subject to observance of provisions of Part III of the Constitution.
4. On the issue of the non-obstante clause of Article 371D and Para 5(1) of Schedule V, the Court reasoned that Article 371D was not enacted to be a superimposition on the Fifth Schedule. Therefore, the non-obstante clause is applicable in distinct fields. The Governor can pass any order which is not in conflict with the Presidential order under Article 371D.

On the validity of the reservation provided, the Court observed that,

1. Through various settled precedents, the Court has made the reservation valid up to 50%. Reservation provided more than this ceiling is arbitrary and anti-merit. Absenteeism of teachers is not a ground to provide 100% reservation; other measures could be considered to increase participation. It is an exception to the general rule, and it should not be excessive and societally injurious.
2. It is not a sound logic that only tribal people can teach in the Scheduled Area. The reservation provided will exclude other backward classes. This exclusion is unreasonable and unfair.
3. Non-arbitrariness should be the element to test the anvil of an administrative order. An order which restricts employment opportunities for other communities is arbitrary and unreasonable.
4. The condition of continuous residing is arbitrary and violative of Article 15(1). It is against the interests of people who are residing in the area after the cut-off date provided to be eligible for reservation.

Disposition

1. The reservation made in favour of a backward class through the provision of Article 309 can be promulgated by executive order. Once, appropriate laws or rules are framed, it is open to the Executive Government to provide for reservation through an executive order.
2. The concept of reservation is not proportionate but adequate. The order has deprived the rights of Scheduled Castes, Other Backward Communities, Unreserved Communities, along with Scheduled Tribe members who are residing in the Scheduled Areas after the cut-off date of 26-Jan-1950. The action of the Government is unreasonable, arbitrary, and violative of the provisions of Articles 14, 15 & 16 of the Constitution.
3. The Court observed that the total reservation provided to Scheduled Tribes in the State is of 6%. Providing 100% reservation to them in the Scheduled Area would be against the tribals who are residing in the Scheduled Area as they cannot stake their claim outside their area because of Article 371D. The post in other areas also needs to be reduced to provide 100% reservation in a particular area.
4. Lastly, the Court stated that the functionary like the Government was bound by the dictum of the Indra Sawhney Case. It was not expected from it to work in such a manner. The ceiling of the reservation is set to 50% and there was no rhyme and reason for the State Government to provide a 100% reservation.
5. The Court saved the past appointments conditionally so that the State Government would not attempt a similar exercise in the future.

Analysis

I. Scheduled Areas and the value of equality for Non-Tribals

• Little significance is given to the Scheduled Areas and Powers of the Governor:

The reasoning of the Court is close to dismantling the entire base of the 5th Schedule. The Court’s adherence that the Governor did not have the power to make new law under Clause 5(1) of the 5th Schedule is contrary to the opinion of the High Court whereby it held that the Governor has the power to make such laws.

Even during the Assembly debates, the concern regarding such powers was not whether the Governor could make such laws or not, but that they should not be used undemocratically, exercised against the elected legislature. Therefore, to check on these powers Tribes Advisory Council and the Governor were bound to refer matters to it. In this impugned case, the Council also concurred with the 100% reservation provided.^[1]

The notion of equality was so important for the non-tribals that the Court, based on presumptions & assumptions only (without examining the demographics, and socio-political condition of the Scheduled Area, which is expected from the Court to do so) considered the order as unconstitutional.

• Orthodox v. Mainstream Understanding of the Tribal Culture

The bench while adjudging the validity of the order made certain observations regarding the culture, way of life of the tribal community, which are objectionable. Such remarks are unacceptable coming from the highest pedestal of justice in India. The Court considered it an ‘obnoxious’ idea that only tribals should teach in the tribal areas, without detailing why it is so. The Court (in Para 107) used terms like ‘primitive’, ‘way of life’, and ‘ordinary people’ without defining them adequately.

If the literal meaning of these terms is referred to, the Court seems to be at a conclusion, that the community residing in the Scheduled Areas is considered as primitive, lagging off the development which took place in the rest of the society in terms of education, healthcare, and technological advances.

Such understanding is of ‘othering’ nature, whereby the dominant culture seems to supersede the other culture and define them in inferior characteristics. There was a limited understanding of the richness of culture or its inherent value. Such statements can never be used to condemn or demean the culture to be unworthy or the dominant culture is the best amongst others.^[2]

The provisions of the 5th and 6th Schedule do not exist on the whims of the constitution-makers, believing that one day; Scheduled Areas will merge with other regions of the country in the future. They are there to recognize that an independent modern India has many aspects and each aspect is equally valid. Therefore, the fundamental rights and the 5th & 6th Schedule should be considered as an intrinsic part of the Constitution.

The reasoning given for Article 371D is also limited without considering the demographics of the State as Schedule Areas form only a small portion of any district. Also, within these classified areas, the STs are in the clear majority and therefore. They deserve to be taught by a member of their community who knows better about their culture than non-tribals.^[3]

The Court’s perspective of equality

In this case, the Court seems to be more interested in providing political equality in terms of having the same basic rights than substantive equality. The latter calls for equality concerning opportunities & resources available, or equality in the quality of their lives itself. In the given case the order was promulgated to deal with the mass absenteeism of teachers in the tribal areas. The absenteeism was because of the social, economic and geographical position of such areas and the disinterest of non-tribals to engage actively with such areas.

To improve the education condition and overall quality of life of the tribals, the impugned order provided a 100% reservation, which the court completely disregarded. The order had a successful impact as submitted by the respondents, which was also ignored by the Court.

Gross inequality in society is influenced by people’s natural abilities and talents, which are shaped by the social positions in which they are born. Such inequalities can be reduced by creating social institutions and policies that will limit the influence of such factors. This is the underlying reasoning of distributive equality. The impugned order was issued to address such inequality only.

The Court seems to be applying the deontological perspective of equality (ascertaining the fairness of an act of the agent. In this case, the Governor) which counts the action of the Governor as wrong because the impugned order treats different people in different ways. By contending the order as unfair to others, the result is equality. But latently, the Court consents to or ignores the other prevailing socio-economic inequalities.

Such inequality is the ability and talent, which an individual acquires naturally because of his birth in a particular community in the society. Deontological equality has limited application and is not able to deal with inequalities, which arise naturally, such as the ones discussed above.

The other perspective, which the Court did not deliberate upon, is teleological equality. As per this perspective, we should pursue equality because equality in itself is good. Under this principle, a combined moral view is also contained along with other principles that are concerned with improving, not equalizing lives. In the present case, the STs are deprived of the educational benefits that they would receive if such inequalities were reduced.

The present issue concerns an action that creates inequalities that benefit or at least do not harm the people who are worse off under the inequalities. The ST community in the scheduled areas has less than a fair share of education facilities because of its unique socio-economic position compared to other communities. To reduce such inequality and address the problem of teacher absenteeism, the Governor promulgated the impugned order. So in this sense, we are trying to satisfy the claim of the community who is worse off to have a fair share. The outcome that results will be fairer, even if it is worse in other respects.

The Court, while adjudging the validity of the impugned order should not have interpreted a narrow perspective of equality. It should be inclusive of such an understanding of equality also.^[4]

II. Ambiguous observation of the affirmative action provided by the GOM

Development of equality tests and affirmative action

For the first time, in the case of M.R. Balaji, the Court considered the special provisions framed for the advancement of these classes under Article 15(4) as an exception to the true equality principle enshrined in Article 15(1). The Court assumed that equality means blindness to an individual’s characteristics, race, caste, class, religion, sex, etc. But there are certain castes and communities which need the support of the State to advance in the society and therefore, special provisions made for them should be considered as an exception under Article 15(4). This is called the colour-blind^[5] approach to equality where the end goal is given more priority.

In approaching equality colour-blindly, affirmative action/reservations are presumptively impermissible because these actions are classified based on conditions prohibited. Therefore, Article 15(1) voids any such classification and 15(4) paves the way for affirmative action as a specific exception to the rule^[6].

In the case of State of Kerala v. NM Thomas^[7], the seven-judge bench shifted from the colour-blind theory of equality. It is considered that unequal must be brought equal to the level of others to provide equality of opportunity to an individual in a society and decrease the prevailing inequality. Thereby, indicating that Article 15(4) is part of Article 15(1) in which affirmative action is a remedial measure to achieve equality. This stand made affirmative action or reservation not as an exception to Article 15(1) but as an efficient means to achieve individual equality.

This understanding is of the group-subordination test. As per this test, some individuals have suffered various atrocities in the past because of their membership or belonging to certain communities and groups. Therefore, to achieve equality, the said groups should be uplifted and ensure that they are no longer subordinated. This creates a scenario, where Article 15(4) is not seen as an exception to Article 15(1) but a clause enhancing further the principles of equality.

Later, in the case of Indira Sawhney v. Union of India^[8], this jurisprudence became more efficient and yet problematic. The Court considered the reservation as an efficient means to individual equality, considering that since certain communities and groups are not treated equally with others, the members were also not treated well because they belonged to that community.

This inequality could only be reduced by uplifting the entire community by providing them with affirmative action. This was the support of the subordinate group test. But, while providing such benefits, the state should also not override the ideals of individual equality which is approached colour-blindly, whereby affirmative actions are not allowed because they classify individual-based race, caste, religion, sex, etc.

Therefore, to achieve equality in society by providing affirmative action or reservation for the advancement of Backward Classes the arrangement proposed should be scrutinized by both, the colour-blind and the subordinated group test and a ‘balance’ should be made between both these tests so that the affirmative action proposed do not lead to reverse discrimination. The word ‘balance’ used is very essential here, indicating that our constitution is inclusive for both the test and ultimately aims for a colour-blind society.^[9]

The ambiguous application of the tests in the present case

In the present case, the Court seems to be confused or hesitant to stick to a specific test to apply to the given facts. The Court in Para 116, citing the case of R. Chitralekha states that Reservation is an exception to the general rule (application of the colour-blind test). Later, in Para 137, the Court while deciding whether the impugned order is a mode of classification under Article 16(1) or a tool to provide reservation under Article 16(4) holds that Article 14, 16(1), 16(4) are all facets of equality (application of substantive equality test). Therefore, the Court seems to have applied two contradictory tests at the same time for ascertaining the validity of the order.

The Court seems to have inferred that reservation is an exception to Article 16(4), whereas other forms of affirmative action are the tools to further the equality enshrined under Article 14.

This ambiguity seems to be arising because of the discomfort of the Court to allow such an extent of reservation to the Scheduled Tribes. For the Court, providing 100% reservation is a violation of the principle of equality because such an arrangement would be unreasonable and unfair to others (Para 115).

Emphasis on the 50% ceiling

The other problem is with the Court’s adherence to the 50% ceiling and treating reservations provided to Scheduled Tribes under the ambit of 16(4) only. It purposefully uses reservation provided under Article 16(4) as a facet of equality under 16(1) to avoid creating new classifications and thereby excluding STs from the ambit of 50% reservation cap.

The Court, in the judgment several times stated that this ceiling of 50% can be breached in special condition but refuses to treat the impugned order as a special condition for STs. It is a problem that none of the landmark cases has extensively discussed the numerical cap posed for the reservation and given an explanation and justification for putting it to 50%.

The silence of the past cases reignites this debate in the present case. The Court is not ready to accept the 100% reservation provided to STs. For them, such measures are antithetical to the idea of equality. This was made clear when the Court stated that such measures not only affect the unreserved categories but also Scheduled Castes, Other Backwards Classes, and the Scheduled Tribe members who were residing in the local area after the cut-off date of 26 January 1950.

This reasoning is not backed by any doctrinal proof and contradicts the earlier statements of the Court, which considers reservation as an exception to the general rule.

Lastly, the Court’s random usage of words like unreasonable, arbitrary, irrational, and unfair as the standard of review, is objectionable. The Court only used these terms interchangeably, without providing any sufficient argument why the Governor’s order is such. The Court also misses the existence of such laws which can be reasonable and yet arbitrary.

The Court should have explained why they believed the order to be unreasonable, irrational, unfair, or arbitrary instead of just stating that it was. It is important to justify the usage of such terminologies, as each of the terms has different tests and can be applied in distinct situations only.

For example, the Court could have considered this order as ‘unreasonable’ and ‘irrational’ because it does not serve the needs of other minorities. It would be rational if the order took into account the needs of all the other communities. However, it would be wrong to consider the order as ‘arbitrary’ because the class benefitting from the order is already protected under Article 16(4).^[10]

Conclusion

The Court narrowly deliberated on some of these important points. Such examination is important because based on such limited application of the power of the Governor, and a narrow interpretation of the principle of equality, this precedent can lead to serious consequences, even overturning the Samata Judgment, which prohibited mining leases from being given to non-tribals under the provisions of 5th Schedule.^[11]

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Authored by: Rajat Chawda

Institute of Law, Nirma University

This Case Comment was shortlisted in 2nd Amity National Case Comment Writing Competition 2020

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References

^[1] Nandini Sundar, Why India needs Schedule Tribes to Educate its Future Judges, The Wire (Apr. 13, 2020, 2:50 PM), Available Here

^[2] Amit George, Tribal Culture(s) and the Supreme Court: A Critique of Chebrolu Leela Prashad & Ors. v. State of A.P. & Ors., Bar and Bench (Apr. 14, 2020, 3:36 PM), Available Here

^[3] Supra note 1.

^[4] Dennis McKerlie, Equality, 106(2) The Uni. Of Chicago Press 274 (1996)

^[5]Gautam Bhatia, Reservations, Equality and the Constitution – I: Origin, Ind. Const. L. & Phil. (Apr. 12, 2020, 12:30 AM), Available Here

^[6] Gautam Bhatia, Reservations, Equality and the Constitution – II: The Early Cases, Ind. Const. L. & Phil. (Apr. 16, 2020, 2:30 AM), Available Here

^[7]1976 AIR 490

^[8] AIR 1993 SC 477

^[9] Gautam Bhatia, Reservations, Equality and the Constitution – V: Indra Sawhney, Ind. Const. L. & Phil. (Apr. 19, 2020, 1:23 AM), Available Here

^[10] Anant Sangal, The Supreme Court’s 100% Reservation Judgment-Two Inconsistencies, Ind. Const. L. & Phil. (Apr. 17, 2020, 3:10 AM), Available Here

^[11] Supra note 1.

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