[100% ST Reservations For Teacher Posts In Scheduled Areas] SC [CB] Begins Hearing, 'Reservation Should Not Go If Even One Person Is Backward' Says Arun Mishra.J

A Five-Judge Constitution Bench of the Supreme Court bench headed by Justice Mishra has commenced the hearing on the question whether 100 % reservation in the posts of teachers can be made in favour of members of Scheduled Tribes in schools in Scheduled Areas, 

"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. Is there any safeguard against this renewal?", asked Justice Arun Mishra on Tuesday.

"Your Lordships have asked a politically forbidden question", quipped Senior Advocate Rajeev Dhawan, appearing for the state of Andhra Pradesh.

"No, not political. But now we are moving towards 100% reservation...We are positive right now. We are not against reservation. But to what extent? Should it be brought down? Is study required or not? Should we collect quantifiable data?", questioned the judge.

"It should not go if even one person is backward. If the benefit is not percolating, then we should give them secularity", he continued.

"Your Lordships are speaking about the temporality- when did reservation start, how long will it go on...Dr. B. R. Ambedkar had said that politically, we have given one person, one one. But in social and economic matters, there is no equality. Until we do so, the entire constitution will blow apart...", responded Dr. Dhawan.

"What should be the barometers for that?", asked Justice Mishra.

"The barometers should be left to the government to some extent", said Dr. Dhawan.

"Can you imagine a non-tribal teacher making you 'murga', twisting your ear or smacking you? It would be like ragging in college. Normally, it happens, but when there is a disparity?", he advanced, talking about the teacher's understanding in such an instance and when parents would complain that their child had returned home crying because they were beaten.

"Once we have put someone in a schedule, should they be there in perpetuity? Why is there not an effort to take them out? If we keep them there in perpetuity, the same instance will happen everywhere. Why are they not able to bring the tribals at par?", Justice Mishra reflected.

"We keep tribal culture intact. And then we give them reservation!", remarked the judge.

"Has it improved the situation of the tribals or has it remained the same? We have to see the effect in the two decades. Are there any statistics as to this of the last 20 years?", probed Justice Vineet Saran.

"In some areas, it has (improved)...this depends on urbanisation...", answered Dr. Dhawan.

Dr. Dhawan had opened his argument with the dispensation of the Constitution as regards the SC and ST-

"We are not dealing with one case here or there. The dispensation is extremely wide. It has a special place in the Constitution! It is there in Article 15, 16 and 17, which is on untouchability. And in the DPSPs, in Articles 37, 38, 47...it doesn't stop there. There is special reservation for the SC/STSC-ST alone in the Parliament, in the Panchayats...Justice Krishnaiyer said that among the backward classes, this a super class!"

"Add to this the asymmetrical federalism of our country. In the sense that all states are not equal. And asymmetrical not only because of the relations with the Centre, but because of the Fifth and the Sixth Schedules (Administration and control of Scheduled Areas and STs)", he had submitted.

"These special areas have three characteristics- first, extreme discrimination...tribals are killed, a community in Kerala was made to lick human excreta...second, extreme disadvantage...These people are on the cusp of losing their culture!...People say 'you are Nepali. We will make you watchman'. North-east Indians are prejudiced. This is how the Red Indians were treated in America!...third, sharing the power of the State...why were they not only made special but super-special? Reservation in promotion? SC and ST, but no OBC. In the Parliament? Again, SC and ST, but no OBC. In the Panchayat, some OBC...", he had expounded.

Dr. Dhawan also canvassed the public humiliation of B. D. Sharma, social activist and former Commissioner of Scheduled Castes and Scheduled Tribes, who was assaulted, stripped, garlanded with 'chappals' and made to walk naked through the streets of a city in Chhattisgarh for leading a tribal protest against the setting up of a steel plant.

"These are people with less education and more discrimination...symbiosis between the student and the teacher is very important. To put a teacher who is not a tribal, does not speak the same language as you, does not look like you, is not able to share your fear and suffering...? Who would be a better teacher?", he had urged.

Justice Mishra had earlier inquired if Article 14 is only about classification and 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 (Substitute with 'diehard tribal mentality', commented Dr. Dhawan) , is a disservice to our founding faith, even if judicially sanctified...", quoted the Senior Advocate in response from a 1979 Supreme Court decision.

"The doctrine of classification is not the end or the beginning of equality! Article 14, on equality, also deals with arbitrariness and not just classification", he suggested.

"Whether this reservation has a local limit of that particular area or district? As in, only STs of that area or district can apply? In that case, others will suffer because you are giving 100% reservation and that too area-wise...chances of SC are also minimised", Justice Mishra had observed earlier, quoting that "total reservation is negation of merit".

On a discussion on Paras 5(1) and 5(2) of the Fifth Schedule, the judge noted, "Article 31C also has a similar provision. Tribals given protection there. There seems to be some over-lapping".

When Dr. Dhawan had advanced that the 2006 M. Nagaraj ruling on quantifiable data of backwardness had been done away with in the case of SC and ST in Jarnail Singh in 2018, Justice Mishra had wondered, "But some reference is pending on Jarnail?".

"Nagaraj had said that the 50% upper-limit (on reservation) can be exceeded if the state has 80% population which is backward", the judge had observed.

When Dr. Dhawan sought to advanced, "Imagine an area which is totally tribal...", Justice Mishra remarked, "This is not totally tribal. We cannot lose sight of the fact that 40-50% of the population is so when we are considering Articles 15 and 16..."

He had asked the Counsel for the petitioners if the SC and the ST are also "backward" classes. When he was informed of Justice Jeevan Reddy's opinion in Indira Sawhney that they are "the most backward", Justice Mishra iterated, "But all are backward..."

"Whether the power to make 'exceptions and modifications' (under Para 5(1) of the Fifth Schedule, of the Governor in applying any law of the Parliament or the state legislature to any Scheduled Area, in exercise of which the notification making 100% reservation was issued), includes the power to totally substitute the law? That would mean absolute power to the Governor which could be derogatory to the Legislature...'exceptions and modifications' is narrower (in scope). Can the Governor reframe the entire scheme?", the judge had inquired.