SUMAN K SHRIVASTAVA
Ranchi, December 15: Constitutions do not reveal their meaning all at once. They speak through moments of strain—when political power presses against constitutional principle and courts are called upon to restore equilibrium. The decision of the Jharkhand High Court in Soni Kumari v. State of Jharkhand belongs to this tradition of constitutional clarification.
Delivered nearly two decades after the State came into existence, the judgment addressed a question long left unanswered in Fifth Schedule jurisprudence: does the Governor wield unreviewable authority in Scheduled Areas, or do the Constitution’s fundamental guarantees restrain that power?
The Court’s answer was firm. There exists no constitutional enclave, not even in Scheduled Areas, where equality ceases to operate. In striking down the 2016 notification issued during the Raghubar Das government, the Court reaffirmed that Scheduled Areas remain governed by the Constitution, not placed beyond it.
Jharkhand’s Statehood and the Promise of the Fifth Schedule
Jharkhand’s creation in 2000 was itself an act of constitutional recognition. It acknowledged that tribal regions—long marked by land alienation, extractive governance, and administrative neglect—required not merely welfare measures but structural protection. The Fifth Schedule became the constitutional framework through which that protection was articulated.
By Presidential notification dated April 11 2007, thirteen districts—Ranchi, Gumla, Simdega, Khunti, Lohardaga, Latehar, West and East Singhbhum, Saraikela-Kharsawan, Dumka, Pakur, Jamtara, and Godda—were declared Scheduled Areas, wholly or in part. These districts formed the constitutional terrain in which the Governor was expected to function as a guardian, not as a sovereign.
A Fragile Trust: Politics in the Scheduled Areas
Yet the constitutional conflict that culminated in Soni Kumari was shaped as much by politics as by doctrine. Jharkhand’s political identity is inseparable from the tribal struggle for land, autonomy, and dignity. The State itself was born out of mobilisation around jal, jangal aur jameen. In such a landscape, governmental legitimacy in Scheduled Areas is always contingent.
When Raghubar Das assumed office in 2014 as Jharkhand’s first non-tribal Chief Minister, his government inherited a fragile trust deficit in tribal regions. That deficit soon hardened into open hostility following attempts to amend the Chotanagpur Tenancy and Santhal Pargana Tenancy Acts—laws widely perceived as the last constitutional shield against tribal dispossession.
The rupture deepened when the then Governor, Droupadi Murmu, returned the CNT amendment Bill without assent. By then, the government had lost political traction across large parts of tribal Jharkhand.
From Political Loss to Policy Repair
It was in this atmosphere of mistrust that the State turned to employment policy as a form of political reassurance. On July 14 2016, invoking Paragraph 5(1) of the Fifth Schedule, the Governor issued notifications reserving all Class-III and Class-IV district cadre posts in Scheduled Districts exclusively for local residents for ten years.
Government employment, particularly in Jharkhand’s tribal districts, carries symbolic meaning far beyond salary. It represents security, recognition, and a stake in the State. The notification sought to signal protection where confidence had been lost.
The 2016 Notification: Protection or Overreach
The legal architecture of the notification soon drew a challenge. The Governor had not suspended or modified any law enacted by Parliament or the State Legislature. Instead, the notification altered recruitment rules framed under Article 309—subordinate legislation. What was presented as constitutional protection thus took the form of executive restructuring of public employment.
For nearly two decades after statehood, Jharkhand had not witnessed such an invocation of Paragraph 5(1). Across India, Fifth Schedule powers had been exercised sparingly, usually in relation to land and customary rights. Their use to impose a blanket, residence-based exclusion in public employment was rare.
Soni Kumari and the Constitutional Claim of Equality
The constitutional challenge reached the High Court through the experience of Soni Kumari and similarly placed candidates—teacher aspirants who found themselves excluded not because of merit, qualification, or suitability, but solely because they did not belong to the district in which posts were advertised.
Thousands of posts of Trained Graduate Teachers were notified in the scheduled districts. Candidates with higher marks were barred at the threshold. For the petitioners, this exclusion struck at the heart of constitutional equality.
They argued that Article 16 guarantees equal opportunity in public employment, and that residence cannot be made a condition for eligibility except by Parliament under Articles 16(3) and 35. The Governor, they contended, could not do indirectly what even the State Legislature was constitutionally barred from doing. The Fifth Schedule, they said, permits protection—not the extinction of fundamental rights.
The petitioners further argued that the notification amounted to 100 per cent reservation, which the Supreme Court had repeatedly held to be unconstitutional. By completely excluding non-locals, the State had crossed the boundary between protective discrimination and absolute exclusion.
The State’s Defence: Protection, Not Discrimination
The State government defended the notification as an act of constitutional care. It argued that the Scheduled districts of Jharkhand were economically backward, geographically difficult, and educationally deprived. According to the State, local candidates were better placed to serve in these regions, particularly in schools where language, culture, and continuity mattered.
The State relied heavily on Articles 244, 38, and 46, contending that the Constitution mandates special measures for Scheduled Tribes. It argued that the Governor’s power under Paragraph 5(1) of the Fifth Schedule was wide and overriding, and that earlier judicial precedents had recognised such authority.
It was also urged that the policy was not a caste-based reservation, but a residence-based classification applicable across categories, and therefore did not violate Article 16. Some selected candidates further argued that the petitioners had participated in the recruitment process with full knowledge of the rules and could not later challenge them.
The Full Bench and First Principles
A Full Bench comprising Justices H.C. Mishra, S. Chandrashekhar, and Deepak Roshan approached these competing claims not as a dispute over policy wisdom, but as a matter of constitutional structure. The Court’s reasoning was guided decisively by the Supreme Court’s Constitution Bench judgment in Chebrolu Leela Prasad Rao.
The Supreme Court had answered, with clarity, the questions that lay beneath the Jharkhand dispute: that the Governor cannot make new law under Paragraph 5(1); that subordinate legislation such as service rules lies beyond the Governor’s modifying power; that the non obstante clause does not override fundamental rights; that 100 per cent reservation is impermissible; that exclusion cannot be masked as classification; and that residence alone cannot determine eligibility for public employment.
Fundamental Rights Inside Scheduled Areas
Applying these principles, the Jharkhand High Court rejected the State’s defence. Scheduled Areas, it held, are not constitutional exceptions. The Governor’s power is protective, not plenary. Equality before the law and equal opportunity in employment do not stop at district boundaries.
Protection, the Court observed, cannot be pursued by dismantling the very constitutional guarantees that give it legitimacy.
From Jharkhand to New Delhi
When the Supreme Court later affirmed this reasoning in Satyajit Kumar v. State of Jharkhand, it preserved the constitutional principle even while protecting existing appointments on equitable grounds. The line drawn by the High Court—that the Fifth Schedule is a shield, not a sword—remained undisturbed.
Justice Deepak Roshan’s later direction to constitute a judicial commission into recruitment irregularities served as a reminder that constitutional shortcuts often leave institutional disorder in their wake.
A Twenty-Five-Year Reckoning
As the Jharkhand High Court completes twenty-five years, Soni Kumari stands as one of its defining constitutional moments. The judgment does not weaken tribal protection; it restores it to first principles. It reminds us that the Fifth Schedule was designed to protect vulnerable communities within the Constitution, not outside it.
In reaffirming that the Governor’s power is limited, accountable, and subject to fundamental rights, the Court preserved the Constitution’s enduring promise—that protection and equality are not rivals, but constitutional companions.
