Extraordinary circumstances need to be kept in mind to go beyond the ceiling limit of 50% in reservations: Justice Arun Mishra (Day 2) Hearing

Supreme Court Justice Arun Mishra said, “Extraordinary circumstances need to be kept in mind to go beyond the ceiling limit of 50% in reservations”.

Supreme Court Constitution bench led by Justice Arun Mishra was hearing the issue whether 100 % reservation in teachers posts can be made in favour of Scheduled Tribes in schools situated in scheduled areas in state except Assam, Meghalaya, Tripura and Mizoram. The central issue is whether 100 per cent reservation in this regard would be ultra vires of the Constitution.

On day 2, Senior Advocate Rajeev Dhavan begin his submission asserting that the essence of ‘Indra Swahney’ judgment is oversight, therefore, provisions related to reservation can be altered. Shifting to the importance of provisions made for SC & ST, he said that chapter XVI of the Constitution has eleven specific provisions especially dedicated to the Schedule Castes and Schedule Tribes. He further argued that the rationality behind reservations is to enable the backward classes to enable them to share power along with the other classes of the society. He substantiated his contention by stating that till the primary level in schools, children need to be instructed in native language only and pointed out that, there are many people who don’t even want to go the scheduled areas for the purpose of employment. He concluded by submitting that reservations go hand in hand with co-extensive development and that it is legal to deviate from the principle of proportional representation since schedule tribes are disadvantaged.

Thereafter, Senior advocate Venkataramani for respondent (State of Andhra Pradesh) gave his submission to whom Justice Arun Mishra put a question that what have these regulations achieved and is there any data that suggests that deprivation of regular category candidates is suitable, to which he replied that there is a study of 2009 which can be of help here. He further argued that the intention of the governor while enacting these rules was to promote education in these areas to which Justice Saran countered that this is not the correct justification. He concluded his arguments by requesting to appreciate the object of legislation rather than focusing only on its defects. He also asserted that the ceiling of fifty percent reservation can be increased in exceptional circumstances and in the present case, schedule areas are exceptional circumstances.

Senior advocate Adinarayan Rao gave his submissions on behalf of State of Telengana (for respondent), he stated that so far as the administration of the tribal areas are concerned, Indian Constitution has contemplated a separate administrative order for schedule tribes and referred to some excerpt from Indra Swahney case, therefore concluding his arguments.

Advocate Shivam Singh for respondents (on behalf of some private individuals) begin his submissions, he tried to throw some light on the importance of the doctrine of Basic Structure and asserted that article 244(11) is the part of the original text of the constitution and provisions enacted post 1973 can only be discussed in the light of the basic structure. He further submitted that the provisions of the constitution are required to be tested in the light of their date of enactment. He will be continuing his submissions tomorrow.

-India Legal Bureau