[100% ST Reservations For Teacher Posts In Scheduled Areas][Day-2] How Will 100% Reservation Help When Qualified Persons Are Not There? Asks SC

The Supreme Court 5-judge Bench headed by Justice Arun Mishra on Wednesday resumed hearing on whether in schools in Scheduled Areas, 100 % reservation in the posts of teachers can be made in favour of members of Scheduled Tribes.

Senior Advocate Rajeev Dhawan, for the respondent-state of AP, drew the bench's attention to Paras 6 and 7 of the Fifth Schedule- while the former empowers the President to "at any time by order" direct that the whole or any specified part of a Scheduled Area shall cease to be so, as well as to alter the area of any Scheduled Area in a state, the latter allows the Parliament "from time to time by law" amend any of the provisions of this Schedule.

"While the area can be modified by the President on a once-only basis, the amendment by the Parliament can be made at anytime...so the temporality is taken care of", he advanced.

"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?", Justice Arun Mishra had asked on Tuesday.

"What about the proviso regarding 10 years", repeated the judge on Wednesday.

"That is different. That is regarding representation in the Parliament in Article 334", he was told.

"So in the Fifth Schedule, there is no time-limit?", questioned the judge.

"Sometimes, the time limit is fixed, like the constitution came into force on November 26. Sometimes, there is flexibility. Like the President may at anytime make a variation in the Scheduled Area, while the Parliament may do it from time to time", replied Dr. Dhawan.

"If the Parliament is not willing to do it? Suppose one section of the SC/ST class is now same as General, is there any way out except this? What is the way out if someone has actually developed and wants to come out of that group?", pressed Justice Mishra.

Submitting that there are such parts of Ranchi which, though Scheduled Areas, are really urbanised, the ST in those areas becoming less, Dr. Dhawan suggested that the bench may direct for there to be a review in this behalf from time to time- "I understand the relevance of Your Lordships' question...And I might be killed upon stepping out for saying this, but Your Lordships may keep it under review...otherwise, the authorities are the Adivasi Council, the Governor, the President, and of course, the State and the National Commissions"

Further, he discussed the power of the Governor in Para 5(2) of the Fifth Schedule to make regulations for peace and good governance of any area in a state which is, "for the time being" (stressed Dr. Dhawan pointedly), a Scheduled Area.

Indicating what the Para envisages the regulations may, in particular, govern, he remarked, "Land and money-lenders. The two big problems...We know about the 'baniya raj' in rural areas". "Not in urban areas?", quipped the bench.

"In Chhattisgarh also, there is 70-80% reservation. But there are not andantes for many posts. And it is a punishable offence to fill these posts from outside (the reserved category)", observed Justice Mishra.

"Teachers are not available. I am telling you. People don't want to go to these areas...('Some migrate, some are not sufficiently educated...It is the same problem as doctors', conceded Dr. Dhawan)...the people who go to America, 99% of the times, they are in villages in America, not in the main cities...where to find the teachers?", continued the judge.

"And if you don't have students, how will you get teachers?", asked Justice Mishra.

"It is now compulsory under the RTE (Right to Education Act). There has to be a school. And if it is a private school, they have to take in 30% (from the reserved categories)...there is also a teachers' training college", asserted Dr. Dhawan.

"They don't have teachers, inspite of 100% reservation. And outside teachers, who may be meritorious teachers, are not taken. So who will be manning these posts? Unqualified, Untrained persons? That is the bitter reality...When they haven't learnt, what will they teach? The people remain backward!...Firstly you may not get the teachers. And if you do get, they are not equipped. So 100% reservation is advantageous or disadvantageous for such areas?", reflected Justice Mishra.

"There is no good merit to compete...this leads to ad-hocism...it cannot be regularised", he continued.

"But now, if the candidates are there, they will be continued...nobody wants to go to a Scheduled Area...also, the language the students have to be taught in at the preliminary stage is the local language! Who is the right person? One who is knowledgable in the language, and can communicate to a ST in a Scheduled Area! Please bear that in mind", urged Dr. Dhawan.

The bench wondered if one section could be accorded priority over the other, so far as the SC/ST are concerned- "If it can be done, many problems would be solved...is it permissible to do? Is it bonafide to do so?"

"There is a power with the President as far as the SC/ST are concerned. If the President feels there is a need, one tribe may be given priority over the other", answered Dr. Dhawan.

"We talk of preservation of culture. And then we spend so much on bringing them up. But they are still (unclear)...we are not giving them exposure. Is this how benefits will percolate down?", noted Justice Mishra.

"That is why those who are qualified will get 100% reservation", advanced Dr. Dhawan.

"How will they get qualified? Correct me?", probed the judge.

"If a university gets a grant from the government, preference is to be given to the SC/ST. 20% is reserved for them! That is why the SC/ST go out and get their qualification! That is how they get qualified!", replied Dr. Dhawan.

Next, Senior Advocate R. Venkataramani, also for the state of AP, began with stating that post independence, most Scheduled Areas are regarded as "Red Corridors", "Naxal areas".

"What do they want? Economic, social justice, which is not able to percolate down. The have-nots remain have-nots....You keep ignoring them, and then want to solve the violence? What you sow, you reap!...2 decades have passed. What have you achieved? Few people are benefitting, other SC-ST are turning naxalite...persons have been deprived of employment, property. Why are the benefits not able to percolate down? You will have to answer this ultimately...how will 100% help you?", demanded Justice Mishra.

"It also closes the doors for those who are qualified", added Justice Vineet Saran.

When it was argued that it is difficult to fill-up posts in Scheduled Areas, Justice Saran commented that that is not a justifiable reason for extending 100% reservation in favour of the ST.

When it was sought to be countered that there are no students of any other class in the schools in Scheduled Areas, Justice Saran called it out as unconstitutional.

"The distinction has to be 'protective', not 'exclusive'", opined Justice Mishra.

"Can the Governor (under Para 5(1) of the Fifth Schedule, 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), carry out these kind of experiments to match the social and economic interests of Scheduled Areas? You can't play with the Constitution like this", iterated the bench.

To another Senior Counsel on behalf of the respondents, the bench repeated that the case of 100% reservation cannot be made without any empirical data to buttress the need for it.

"We are not against reservation. But to what extent? Is study required or not? Should we collect quantifiable data?", Justice Mishra had asked on Tuesday.

"Has the situation of the tribals improved 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?", Justice Saran had inquired.