Ninth Schedule: Explained

Two bills were approved by the Jharkhand Assembly, but the modifications won't take effect until the Centre makes changes to add the bills to the Constitution's Ninth Schedule.

What are these Bills?

Vacancies for Posts and Services in Jharkhand (Amendment) Bill, 2022:

• Reservations now stand at 77%.
• Scheduled Castes will receive a quota of 12%, up from 10%, OBCs 27%, up from 14%, Scheduled Tribes 28%, up by 2%, and Economically Weaker Sections 10% under the reserved category (EWS).

Jharkhand Local Persons Bill, 2022:

• It aims to grant local residents "certain rights, benefits, and preferential treatment" over their land, in their stake in local river, lake, and fisheries development, in local traditional and cultural enterprises, in rights over borrowing money for agricultural purposes, in the upkeep and protection of land records, for their social security, in employment in the private and public sectors, and in trade and commerce within the state.

Why is the Ninth Schedule Necessary?

• The 77% reservation exceeds the 50% cap imposed by the Supreme Court in the 1992 decision in Indra Sawhney v. Union of India.
• The Ninth Schedule, however, protects legislation from judicial review.
• 69% of college seats and jobs in the state government were previously reserved for members of Tamil Nadu's backward classes, scheduled castes, and scheduled tribes under the 1993 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.

About The ninth schedule:

• The Constitution (First Amendment) Act of 1951 added the Schedule, which contains a list of federal and state legislation that cannot be challenged in court.
• 13 new statutes were added to the Schedule by the First Amendment. There are currently 284 protected statutes as a result of later revisions made over time.
• It was established by the new Article 31B, which the government introduced along with Article 31A to safeguard legislation pertaining to agrarian reform and the abolition of the Zamindari system.
• Article 31B protects particular laws or enactments, whereas Article 31A covers "classes" of laws.
• The majority of the laws covered by the Schedule relate to agriculture and land, although there are other topics on the list as well.
• Additionally, Article 31B operates retroactively, which means that if legislation are added to the Ninth Schedule after being ruled unconstitutional, they are regarded as having been there from the beginning and are therefore lawful.
• Despite the fact that Article 31B forbids judicial review, the Supreme Court has previously stated that even laws listed in the Ninth Schedule would be subject to review if they infringed Fundamental Rights or the Constitution's fundamental principles.

Do the laws listed in the ninth schedule have complete immunity from judicial review?

• State of Kerala v. Keshavananda Bharati (1973): The court upheld the Golaknath decision and established a new concept of "Basic structure of the Indian Constitution," stating that "all provisions of the constitution may be amended, but amendments that will abrogate or remove the basic structure of the constitution, including Fundamental Rights, are suitable for being struck down by the court."
• In this significant decision, the SC stated that "those constitutional amendments made before April 24, 1973 (the date the Keshavananda Bharati decision was handed down) are valid and constitutional, but those made after the stated date are subject to constitutionality challenges." Waman Rao v. Union of India (1981).
• In I R Coelho v. State of Tamil Nadu (2007), it was determined that if a statute entered into force after April 24, 1973, it must also pass muster under Articles 14, 19, and 21.
• In addition, the court upheld its previous rulings and declared that any act can be challenged and is open to scrutiny by the judiciary if it is not in consonance with the basic structure of the constitution.
• In addition, it was held that if the constitutional validity of any law under the ninth schedule has been upheld before, in future it cannot be challenged again.

Way Forward

• Although reservation is necessary, it should also be open to judicial scrutiny in order to ensure any abrupt or irrational policy initiative by the Executive or the Legislature.
• Any loophole or shortcomings in reservation policy must be addressed by involving various stakeholders. The need of the hour is not to go to extremes of either scrapping or shielding reservation policy, rather a rational framework on this contentious policy must be developed.