[100% Reservation Unreasonable]Questions Referred And Answers Given By Constitution Bench [Read Judgment]

The issue of validity of the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh was referred to the 5 Judge Bench led by Justice Arun Mishra and comprising of Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah and Justice Aniruddha Bose. The first question referred for consideration was: "In Re: Question No.1: What is the scope of Para 5(1) of Schedule V of the Constitution of India?; and Question No.1(a): Does the provision empower the Governor to make a new law?" The Bench opined that Para 5 of Schedule V deals with the law applicable to the scheduled areas. The nonobstante clause contained merely authorises the Governor to issue a notification to the effect that any particular Act of the Parliament or of the State Legislature shall not apply to a scheduled area or any part thereof. It also empowers the Governor to create exceptions and modifications as he may specify in the notification concerning the applicability of such Act of Parliament or legislature of the State and that the Governor is also empowered to issue notification giving it a retrospective effect. "The Governor lacks the authority to enact a new Act under the provisions contained in para 5(1) of Schedule V of the Constitution and he cannot act beyond its purview and has to exercise power within the four corners of the provisions." writes Justice Mishra. The Bench while declaring that the notification is ultra vires to Para 5(1) of Schedule V of the Constitution, also stated that the power of the Governor to modify cannot be used to supplant, supersede or juxtapose the existing law. They further stated that the power to make new laws/regulations, is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India. The next question considered by the Bench was: "In Re: Question No.1(b): Does the power extend to subordinate legislation? " The Bench observed that the rules framed under the proviso to Article 309 of the Constitution cannot be said to be the Act of Parliament or State legislature. The Bench noted that despite the rules have the statutory force, they cannot be said to have been framed under any Act of Parliament or State legislature and that the rules remain in force till such time the legislature exercises power. The Bench pronounced that, "The power of the Governor under Para 5(1) of Schedule V of the Constitution is restricted to modifying or not to apply, Acts of the Parliament or legislature of the State. Thus, the rules could not have been amended in the exercise of the powers conferred under Para 5(1) of Schedule V. The rules made under proviso to Article 309 of the Constitution cannot be said to be an enactment by the State legislature. Thus, in our opinion, it was not open to the Governor to issue the impugned G.O. No.3/2000." The next question that came up for consideration before the bench was: "In re: Question No.1(c): Can the exercise of the power conferred in Para 5 of the Fifth Schedule override fundamental rights guaranteed under Part III?" "What is the effect of the nonobstante clause vis àvis the applicability to other provisions of the Constitution? Whether the provisions of Para 5(1) prevail over all other provisions of the Constitution? Whether the fundamental rights in Part III of the Constitution are inapplicable and need not be satisfied?", contemplated the Bench. The Bench noted that the nonobstante clause cannot be construed as taking away the provision outside the limitations on the amending power and has to be harmoniously construed consistent with the foundational principles and the basic features of the Constitution. The Bench declared that the power is conferred on the Governor to deal with the scheduled areas but is not meant to prevail over the Constitution. The Justices held that the power of the Governor is pari passu with the legislative power of Parliament and the State and is thus, subject to the provisions of Part III of the Constitution. "the power of the Governor does not supersede the fundamental rights......The Constitution can never aim to confer any arbitrary power on the constitutional authorities." writes Justice Mishra. The next question referred to the Bench was: "In Re: Question No.1(d): Whether the exercise of power under the Fifth Schedule of the Constitution overrides any parallel exercise of power by the President under Article 371D?" The Bench observed that the nonobstante clause in Article 371D will not annul the non obstante clause in Para 5 of the Fifth Schedule. They further stated that not only do the two...

[100% Reservation Unreasonable]Questions Referred And Answers Given By Constitution Bench [Read Judgment]

Mehal Jain

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