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Asymmetrical Federalism and the 100% Reservation Judgment

The judgment of Chebrolu Leela Prasad Rao v State of Andhra Pradesh disregards the idea of asymmetrical federalism and considerably weakens the Fifth Schedule. The Supreme Court has not only overlooked the constitutional scheme of the Fifth Schedule but also failed to understand the ground reality of schools located in Scheduled Areas.

Recently, in the case of Cheb­rolu Leela Prasad Rao v State of Andhra Pradesh (2020), a five-judge bench of the Supreme Court of India quashed a January 2000 Governmental Order (GO) of the formerly undivided state of Andhra Pradesh. The GO had been issued by the governor by exercising their powers under the Fifth Schedule, which allows them to create special measures of governance, to protect the rights and interests of Schedule Tribes (STs). 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.

In this article, I shall argue that the Supreme Court’s verdict was legally unsound. I shall first discuss the idea of asymmetrical federalism and illustrate how it has been woven into the scheme of the Constitution. Second, I ­argue that the Court adopted an incorrect approach to examine the validity of the GO, and as a result, it errs in its reasoning and overlooks the ground realities that exist in the schools located in Scheduled Areas. Third, I argue that the Supreme Court should have held the GO valid by following its own precedents, in which it has upheld that certain asymmetrical provisions can legitimately ­supersede fundamental rights in order to protect the rights and interests of STs. It must be noted that this article critiques this judgment as an addition to the critique provided by Alok Prasanna Kumar (2020). While his article criti­qued the judgment from a law and society perspective, this article is a critique from a constitutional law perspective.

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