Fifth Schedule and injustice to adivasis

On August 2, 2022, a two-judge bench of the Supreme Court delivered its verdict in the case of Satyajit Kumar & Ors vs the State of Jharkhand & Ors (2022). The learned judges arrived at an inference that 100 per cent reservation to local adivasis under the Fifth Schedule is arbitrary, illegal and unconstitutional. It was also found that the same stands in violation of Articles 13(2), 14, 15, 16(3) & (4) and 35(a-­i) of the Constitution of India. In the same case, the Jharkhand High Court had in September 2020 heavily relied upon the apex court’s judgement in the case of Chebrolu Leela Prasad Rao vs the State of Andhra Pradesh (2020) to invalidate the 100 per cent reservation. The main issue in both these cases is the constitutional validity of 100 per cent reservations provided to Scheduled Tribe candidates (STs) for the post of teachers in the schools of Scheduled Areas under the Fifth Schedule of the Constitution.

To understand the verdict from the perspective of politics in particular, it is important to understand the majoritarian regime of contemporary times, and get a comprehensive picture of the interface between law, polity and society. In the instant case, the top court’s verdict has inclined fully towards majoritarian interests and done justice to non-adivasi communities at the expense of adivasi rights in the Fifth Schedule. The law or rule of law (here, principle of equality) is one of the means to dispense justice; if any law/statute fails to provide justice to the minority population in a democracy, then it is bound to widen the gap between the majority and the minority population, thereby threatening political stability and social order.

A cursory reading of the verdict indicates that the judges have failed to look into the evolution and historical significance of the Fifth Schedule and its constitutional vision of social justice. This is the main problem in the above-mentioned verdicts, and the negation of the historicity of the fifth and sixth schedules has made the reasoning accorded by the court in dismissing 100 per cent reservations to local adivasis illogical. The court has not looked into the aspects of educational marginalisation of adivasis both in the pre- and post-colonial times.

Adivasis living in the Fifth Schedule areas in particular are continually experiencing one or the other form of humiliation and marginalisation. This is alarmingly evident in the domain of education at all levels, more significantly primary education. The deprivation in the exclusionary practices of the education system is evident in terms of both symbolic and actual marginalisation of adivasis by non-adivasi communities. The education system and its marginalised governance regimes are compounding the inherent anxieties and fears among the adivasis, both notified and de-notified groups.

Justice D Y Chandrachud ascertains: “Marginalisation embodies a principle of graded inequality. It is important to remember that humiliation is an integral part of an inherently dominant society that perpetuates marginalisation." In these cases, the Supreme Court has conveniently sidelined structural and institutional issues such as marginalisation and alienation of adivasis in the current education system.

The verdict, the tone and tenor used to invalidate 100 per cent reservations to local adivasis have facilitated non-adivasis' interests rather than protecting adivasi rights. The top court has set a bad precedent and missed an opportunity to push the agenda of social justice as envisioned in the Constitution.

The assertions made by the top court in both the cases are devoid of reasoning as the issues framed and the subsequent discussion gave primacy only to formal or procedural equality. This approach is problematic as it negates the substantive equality and distributive justice aspects. In both the verdicts, the apex court has failed to go beyond formal equality and misconstrued the same as justice. One of the critical missing parts of the verdict is non-engagement with the need for states in the Fifth Schedule to reserve cent per cent posts of teachers in schools. This has weakened the state’s reasoning to bring in such special classification for local adivasis.

The equality principle as a rule of law is a necessary condition, yet it is insufficient to achieve the goal of social justice. By settling the case at the juncture of equality based on the principle of exclusion, the court, in both the verdicts, has traversed back in advancing social justice to adivasis. The President of India, being the final authority in matters of administration in Scheduled Areas in general and the Fifth Schedule in particular, needs to step in to undo the injustice done in these cases.

(The writer is a PhD Fellow in Political Science, Institute for Social and Economic Change, Bengaluru.)