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Wednesday, November 25, 2020

Explained: LJP wants quota law to be included in Ninth Schedule; what is this?

The Ninth Schedule of the Constitution contains a list of central and state laws which cannot be challenged in courts. Currently, 284 such laws are shielded from judicial review.

By: Explained Desk | New Delhi | Updated: February 14, 2020 7:48:54 am
Explained: What is the Ninth Schedule of the Constitution? The Ninth Schedule became a part of the Constitution in 1951, when the document was amended for the first time. (Source: Wikimedia Commons)

On Monday, while speaking to The Indian Express, LJP leader Chirag Paswan said that reservation should be put under the Ninth Schedule of the Constitution. His comments came days after the Supreme Court ruled that reservation in the matter of promotions in public posts was not a fundamental right, and that a state cannot be compelled to offer quota if it chooses not to.

What is the Ninth Schedule of the Constitution?

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.

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.

During a speech in Parliament, Jawaharlal Nehru had said, “If there is agrarian trouble and insecurity of land tenure nobody knows what is to happen. Therefore, these long arguments and these repeated appeals in courts are dangerous to the State, from the security point of view, from the food production point of view, and from the individual point of view, whether it is that of the zamindar or the tenant or any intermediary.”

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.”

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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.

Article 31B also has retrospective operation: meaning if laws are inserted in the Ninth Schedule after they are declared unconstitutional, they are considered to have been in the Schedule since their commencement, and thus valid.

Although Article 31B excludes judicial review, the apex court has said in the past that even laws under the Ninth Schedule would be open to scrutiny if they violated fundamental rights or the basic structure of the Constitution.

While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects, such as reservation. A Tamil Nadu law that provides 69 per cent reservation in the state is part of the Schedule.

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