Asymmetrical Federalism and the 100% Reservation Judgment

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[In this piece Ankush Rai, provides us an introduction to the arguments he makes in his piece titled “Asymmetrical Federalism and the 100% Reservation Judgment” that has been published by the Economic and Political Weekly in their Vol 55 Issue 26-27. Access the Article here, before it goes behind the paywall!]

Recently, in the case of Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, a five-judge bench of the Supreme Court of India quashed the January 2000 Governmental Order (GO) of the formerly undivided state of Andhra Pradesh. The impugned GO provided for 100% reservation to ST candidates for the post of teachers in schools located in Scheduled Areas of Andhra Pradesh and Telangana. The Court unanimously stated that the governor’s powers under the Fifth Schedule of the Indian Constitution are subject to fundamental rights as given in Part III of the Constitution. Accordingly, it held that the 100% reservation was unconstitutional as it violated Articles 14, 15(1) and 16 of the Constitution.

The article argues that the judgment is legally unsound. It critiques the judgment by using the idea of asymmetrical federalism as woven into the scheme of the Constitution. The idea of asymmetrical federalism according to Louise Tillin is “the granting of differential rights to certain federal sub-units, and the recognition thereby imparted for distinct, territorially concentrated ethnic or national groups”. The idea of asymmetrical federalism has been woven into the scheme of the Indian Constitution as can be observed by the Constituent Assembly Debates, Reports of the Sub-Committee on administration of tribal areas, Fifth and Sixth Schedule of the Constitution and Supreme Court judgments like the Samatha v. State of Andhra Pradesh and Union of India v. Rakesh Kumar.

The Court in this case adopts the approach of examining the G.O. through the general idea of equality with respect to reservations as laid down in Articles 14 to 16 of the Constitution and judgments such as Indra Sawhney and N.M. Thomas. I argue that this approach adopted is incorrect because such an examination of reservations in Scheduled Areas is acontextual to the history and constitutional scheme of the Fifth Schedule. Reservation policies specifically made for Scheduled Areas using the Fifth Schedule cannot be examined by looking at through the general idea of equality. Asymmetrical provisions like the Fifth Schedule allow for special governance measures to depart from the conventional ideas of equality.

Additionally, the Court uses several judgments like Indra Sawhney, N M Thomas and M R Balaji to impress upon the 50% limit and makes these judgments as the basis of its reasoning to strike down the 100% reservation G.O. The Court by doing so errs in its reasoning because it creates an equivalency between reservation policies made for the rest of country and reservation policies meant for Scheduled Areas which have a distinct history behind their creation. Moreover, the ground realities that exist in the schools of Schedule Areas further mandate that 100% reservation is allowed for.

Further, there are precedents of the Supreme Court like Union of India v. Rakesh Kumar, and P Pammi Reddy v. State of Andhra Pradesh that have stated that asymmetrical provisions can legitimately supersede fundamental rights in order to protect the rights and interests of STs living in Scheduled Areas. These two cases also warn about the disastrous consequences that transgressing the Fifth Schedule can have on the lives of STs.

Therefore, for all these reasons, the judgment of the Court was legally unsound. Moreover, this judgment of the Supreme Court attacks the heart of asymmetrical federalism and considerably weakens the Fifth Schedule.

Ankush Rai is a fourth year law student at the NALSAR University of Law, Hyderabad.

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