Submissions In Favour of 100% Reservation For Scheduled Tribe Teachers At Schools In Scheduled Areas Before SC[Read Written Submissions]
A Five Judge Constitutional Bench of the Supreme Court is currently hearing a matter pertaining to the issue of Constitutionality of 100 per cent Reservation for teachers belonging to the class of "Scheduled Tribes" at schools situated in Scheduled Areas. On Wednesday, Counsel representing the Respondent(s) advanced interesting and in-depth Constitutional Law arguments....
A Five Judge Constitutional Bench of the Supreme Court is currently hearing a matter pertaining to the issue of Constitutionality of 100 per cent Reservation for teachers belonging to the class of "Scheduled Tribes" at schools situated in Scheduled Areas.
On Wednesday, Counsel representing the Respondent(s) advanced interesting and in-depth Constitutional Law arguments.
Written Submissions were also handed over to the Bench.
Senior Advocate Rajeev Dhavan's Written Submissions
Dhavan sought to justify the validity of cent percent Reservation affirmed by the Government Order which was issued by the Social Welfare department on 25.04.1988 under the hand of the Governor of the State of Andhra Pradesh.
The following is a crux of the submissions tendered by the Senior Advocate warranting that the exercise of the powers by the Governor to issue notifications in terms of Para 5(1) of the 5th Schedule of the Constitution is constitutionally sound.
A. The Constitution has solicitude for SC & ST
The premise of this submission begins with bringing to light the mindfulness of the Constitution towards the Scheduled Castes and Scheduled Tribes.
1) Right from the Preamble to the Basic structure, the constitution has due consideration for the disadvantaged castes and classes. Apart from the there are special provisions in the Constitution, which further substantiate this.
2) The Indian Constitution is asymmetrical in nature. Articles 244, Fifth Schedule and Sixth Schedule are spatially woven to include Scheduled Areas within their ambit. Moreover, there are special provisions for various states.
3) In the Constituent Assembly debates advanced by Dr. B.R. Ambedkar, the affinity towards the SC & ST is justified on the basis of existing inequalities in the Indian Society.
B. "Equality" as envisaged in the Constitution is not just for the purposes of classification but also to insinuate "anti-arbitrariness"
The premise of this argument is substantiated by various judgments vis-à-vis Ajay Hasla v. Khalid Mujib Sehravardi (1981) 1 SCC 722, E.P. Royappa v. State of T.N. (1974) 4 SCC 3, International Airports Authority Employees Union v. Airport Authority of India (1997) 10 SCC 754, Maneka Gandhi vs. Union of India (1978) 1 SCC 248
C. 50% Rule/ Ceiling for Reservation can be done away with for special areas.
The premise of this argument suggests that Indra Sawhney vs. Union of India 1992 Supp (3) SCC 217 has categorically held that Reservations can be made by an executive order, i.e. Governor has the power to issue Orders for reservations and Reservations are not antithetical to meritocracy.
D. Reservations are made to curb Discrimination and for insinuating "sharing of state power" by the Disadvantaged
The premise of this argument justifies the importance of Reservations and their validity, even if they go up to 100 per cent. If the means to an end are met, the reservation thus effectuated is valid.
Senior Advocate R. Venkataramani's submissions
Venkatramani sought to justify the validity of the Government Order that effectuated 100 per cent Reservations. He appeared for the State of Andhra Pradesh.
The following is a crux of submissions tendered by the Senior Advocate:
1) The administration of scheduled areas is required to operate in a special ambit where interests of the tribal people remain prime. Scheduled areas have a special designation in the constitution and the essence of it lies in paras 2 and 5 of the Fifth Schedule of the Constitution.
2) All exceptions and modifications in terms of law and applicability deserves to be done from the lens of promotion of interests of the Scheduled Areas and the protection of the interests of the scheduled tribes.
3) Promotion of educational interests of the Scheduled tribes is important and effective implementation of the Government Order does not impinge the Right of Equality (Article 14) or the basis of Article 16(1) of the Constitution.
4) Securing socio-economic interests by legislatures, i.e. the Governor in this case is not Antithetical to the tenets of the Constitution.
Advocate Shivam Singh's Submissions
Singh has sought to justify the validity of the 100 per cent Reservation Government Order. His submissions are substantiate the existence harmonious construction between the 5th Schedule of the Constitution and the Fundamental Rights.
He appeared for individual Respondent(s).
The following is a crux of the Submissions tendered by the Advocate:
1) Powers granted to the Legislature vis-à-vis Schedule V Paragraph 5(1) are independent (non-obstantive) of any other provision in the Constitution.
2) Para 5 of Schedule V of the Constitution were part of the "original text" of the Constitution and were not introduced by any subsequent amendments after it came to force. Therefore, in light of the Keshavananda Bharti Case, the Governor validly derives its power from the Constitution to legislate in Scheduled Areas without being ultra vires of the Basic Structure model. Both Part III & Schedule V of the Constitution are harmoniously construed.
3) The benefit of reservation as enshrined in the notification is reasonable as it leads to an impetus in the education in Scheduled Areas. Moreover, strictly limited judicial review applies in case of reasonable classifications and eligibility criteria.
[Read Written Submissions by Senior Advocate Rajeev Dhavan]
Written Submissions By Senior Advocate R Venkatramani
Written Submissions By Advocate Shivam Singh