Jharkhand wants new quota Bill placed in Ninth Schedule: What this section of Constitution is

The Bills

The first Bill, ‘Jharkhand Reservation of Vacancies in Posts and Services (Amendment) Bill, 2022’, raised reservation to 77 per cent. Within the reserved category, the Scheduled Castes will get a quota of 12 per cent, up from 10 per cent; 27 per cent for OBCs, up from 14 per cent; 28 per cent for Scheduled Tribes, a 2 per cent increase; and 10 per cent for Economically Weaker Sections.

The second Bill, ‘Jharkhand Definition of Local Persons and for Extending the Consequential, Social, Cultural and Other Benefits to Such Local Persons Bill, 2022’, is aimed at granting local residents “certain rights, benefits, and preferential treatment” over their land; in their stake in local development of rivers, lakes, fisheries; in local traditional and cultural and commercial enterprises; in rights over agricultural indebtedness or availing agricultural loans; in maintenance and protection of land records; for their social security; in employment in private and public sector; and, for trade and commerce in the state.

Why the need to include in Ninth Schedule

The 77 per cent reservation breaches the 50 per cent ceiling set by the Supreme Court in the landmark 1992 Indra Sawhney v Union of India verdict. However, placing a legislation in the Ninth Schedule shields it from judicial scrutiny.

After the Bills were passed, Jharkhand CM Soren said, “Whatever we promised to the people, we have delivered. And now it is the Centre’s responsibility to find a way to include this in the Ninth Schedule of the Constitution so that people of Jharkhand get their rights and respect. If the need arises, we will go to Delhi in full strength.”

Previous 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.

So, 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.

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.”