Why in the news?

The Jharkhand Assembly has passed two bills. However, these modifications will only take effect if the Centre amends the Constitution to incorporate them in the Ninth Schedule.

What exactly are these Bills?

2022 Jharkhand Reservation of Posts and Services (Amendment) Bill:

  • It increases reservations to 77%.
  • Scheduled Castes will receive a quota of 12%, up from 10%; 27% for OBCs, up from 14%; 28% for Scheduled Tribes, a 2% rise; and 10% for Economically Weaker Sections (EWS).

2022 Jharkhand Local Persons Bill:

  • It strives to offer local citizens "certain rights, privileges, and preferential treatment" over their property; in their interest in the local development of rivers, lakes, and fisheries; in local traditional and cultural and commercial businesses; in rights over agricultural indebtedness or availing agricultural loans; in preservation and protection of land records; in social security; in employment in the private and public sectors; and trade and commerce in the state.

Why is it necessary to include in the Ninth Schedule:

  • The 77% reservation exceeds the 50% limit imposed by the Supreme Court in the Indra Sawhney v Union of India decision in 1992.
  • Placing legislation in the Ninth Schedule, on the other hand, conceals it from the judicial examination.
  • Earlier, the Tamil Nadu Backward Classes, Scheduled Castes, and Scheduled Tribes (Reservation of Seats in Educational Institutions and Appointments or Posts in State Services) Act of 1993 reserved 69% of seats in institutions and employment in the state government.

What is the Schedule for the Ninth?

  • The Constitution (First Amendment) Act of 1951 added the Schedule, which provides a list of national and state legislation that cannot be challenged in court.
  • The first Amendment amended the Schedule by adding 13 new statutes. Subsequent changes throughout the years have brought the total number of protected legislation to 284.
  • It was established by the new Article 31B, which, together with Article 31A, was enacted by the government to preserve agricultural reform legislation and eliminate the Zamindari system.
  • While Article 31A protects "classes" of laws, Article 31B protects individual laws or enactments.
  • While most of the laws covered by the Schedule involve agriculture/land concerns, the list also contains legislation on other topics.
  • Article 31B is also retroactive, which means that if legislation is added to the Ninth Schedule after they have been found unconstitutional, they are regarded to have been in the Schedule since its inception and hence legitimate.
  • While Article 31B prohibits judicial review, the Supreme Court has previously stated that legislation under the Ninth Schedule would be subject to examination if it infringed Fundamental Rights or the fundamental structure of the Constitution.

Are laws under the Ninth Schedule entirely immune from judicial scrutiny?

Keshavananda Bharati v. Kerala State (1973): -

The court upheld the Golaknath decision and introduced a new concept of the "Basic structure of the Indian Constitution," stating that "all provisions of the constitution can be amended, but amendments that abrogate or take away the essence or basic structure of the constitution, including Fundamental Rights, are fit to be struck down by the court."

Union of India v. Waman Rao (1981):

In this landmark decision, the Supreme Court decided that "those constitutional modifications made before April 24, 1973 (the day on which the Keshavananda Bharati decision was given) are legitimate and lawful, but those enacted after that date are susceptible to constitutional review."

I R Coelho v. Tamil Nadu State (2007):

It was decided that if legislation entered into force after April 24, 1973, it must be examined under Articles 14, 19, and 21.

  • Furthermore, the court reaffirmed its prior judgments. It said that any conduct could be questioned and scrutinized by the judiciary if it is not in accordance with the fundamental framework of the Constitution.
  • Furthermore, if the constitutional legitimacy of a statute under the ninth Schedule has already been affirmed, it cannot be rechallenged in the future.

The Future Perspectives - 

  • Though reservations are required, they should also be subject to judicial examination to ensure that the Executive or the Legislature does not take sudden or unreasonable policy initiatives.
  • Any gaps or flaws in reservation policy must be rectified by consulting several stakeholders. The necessity of the hour is not to go to extremes by eliminating or sheltering reservation policy but rather to build a sensible framework on this challenging issue.

Source: IE