Jharkhand wants new quota Bill placed in Ninth Schedule

November 15, 2022

Syllabus: General Studies Paper 2

The Jharkhand Assembly on Friday (November 11) cleared two Bills, one increasing reservation in vacant government posts and services in the state to 77 per cent, and the second to use land records with 1932 as the cut-off year to determine domicile status the definition of ‘local residents’.

What is the Ninth Schedule?

The Ninth Schedule contains a list of central and state laws which cannot be challenged in courts.
Currently, 284 such laws are shielded from judicial review. Most of the laws protected under the Schedule concern agriculture/land issues.
The Schedule became a part of the Constitution in 1951, when the document was amended for the first time.
It was created by the new Article 31B, which along with 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
While A. 31A extends protection to ‘classes’ of laws, A. 31B shields specific laws or enactments.
Article 31B reads: “Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”
The First Amendment added 13 laws to the Schedule. Subsequent amendments in 1955, 1964, 1971, 1974, 1975, 1976, 1984, 1990, 1994, and 1999 have taken the number of protected laws to 284.

Kesavananda Bharati case and Basic structure

The court clarified that the laws cannot escape the “basic structure” test if inserted into the Ninth Schedule after 1973, as it was in 1973 that the basic structure test was evolved in the Kesavananda Bharati case as the ultimate test to examine the constitutional validity of laws.

Indra Sawhney case:

In the Indra Sawhney vs Union of India, popularly known as the Mandal Commission case, the Supreme Court ordered that total reservation should not exceed 50 percent.
Critics believe that the 50 percent ceiling is a constitutional requirement without which the structure of equality of opportunity would collapse.
Supreme Court’s recent judgment regarding flexibility on the 50% cap on the reservation:
The bill was cleared in the backdrop of a Supreme Court Constitution Bench’s majority ruling in the Economically Weaker Section (EWS) case that the 50% cap on the reservation was not sacrosanct.

Outcome of this judgment:

This ruling of SC has paved the way to give new life to the argument of several other States fighting to increase reservations for Socially and Economically Backward Classes (SEBC) beyond the 50% mark.
Now, after the Jharkhand Assembly’s move and the EWS judgment on this aspect, other States like Madhya Pradesh, Chhattisgarh and Karnataka are likely to get a fresh impetus to argue for extending reservations for Backward Classes beyond the 50% limit.

Ninth schedule and provision of 103rd CAA 2019:

Before the EWS judgment once again affirming that the Indra Sawhney decision does not specifically bar a breach of the 50% limit, State governments considered that the only way to raise reservations was through a Constitutional amendment that included their legislations in the Ninth Schedule.

Jharkhand Reservation of Vacancies in Posts and Services (Amendment) Bill, 2022

The Jharkhand Assembly passed a Bill to raise the total reservation for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) in State government posts to up to 77%.

Amending Ninth schedule:

In the Bill passed by the Jharkhand Assembly, the recommendation is to amend the Ninth Schedule of the Constitution accordingly.
The 77 percent reservation breaches the 50 percent ceiling set by the Supreme Court in the landmark 1992 Indra Sawhney v Union of India verdict.
However, placing legislation in the Ninth Schedule shields it from judicial scrutiny.

About breach of 50% ceiling:

Without directly referring to the Indra Sawhney judgment of 1993, the Bill passed in Jharkhand Assembly noted that the 50% ceiling set out in the judgment never explicitly prohibited the breaching of the limit.

Are laws in the Ninth Schedule completely exempt from judicial scrutiny?

While the Ninth Schedule provides the law with a “safe harbour” from judicial review, the protection is not blanket.
When the Tamil Nadu law was challenged in 2007 (I R Coelho v State of Tamil Nadu), the Supreme Court ruled in a unanimous nine-judge verdict that while laws placed under Ninth Schedule cannot be challenged on the grounds of violation of fundamental rights, they can be challenged on the ground of violating the basic structure of the Constitution.
The court clarified that the laws cannot escape the “basic structure” test if inserted into the Ninth Schedule after 1973, as it was in 1973 that the basic structure test was evolved in the Kesavananda Bharati case as the ultimate test to examine the constitutional validity of laws.
The IR Coelho verdict said, “A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court.”