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- Mains – GS 2 (Governance)
Context: Recently the Jharkhand Assembly cleared a Bill to raise the total reservation in State government posts.
About 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.
Origin of 9th schedule:
- 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.
- Article 31A extends protection to ‘classes’ of laws,
- Article 31B shields specific laws or enactments.
Evolution of 9th schedule:
- The First Amendment to Indian Constitution 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.
- While the Ninth Schedule provides the law with a “safe harbour” from judicial review, the protection is not blanket.
- The Supreme Court ruled in a 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.
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.
Background of Reservation policy with respect to 9th schedule:
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.
Earlier instances — Tamil Nadu’s case
- The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993, reserves 69 per cent of the seats in colleges and jobs in the state government.
- When it ran into legal obstacles in the 1990s after the SC verdict, the then Chief Minister Jayalalithaa, along with other leaders of various parties, led a delegation to New Delhi to meet the then Prime Minister PV Narasimha Rao. The reservation provision was then included in the Ninth Schedule.
Verdict of the IR Coelho Case:
- 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.”
MUST READ: Supreme Court and EWS Verdict
Source: Indian Express
Previous Year Questions
Q.1) The Ninth Schedule was introduced in the Constitution of India during the prime ministership of (2019)
- Jawaharlal Nehru
- Lal Bahadur Shastri
- Indira Gandhi
- Morarji Desai