NINTH SCHEDULE

1.Context

The Jharkhand Assembly on Friday (November 11) cleared two Bills, one increasing reservation in vacant government posts and services in the state to 77 percent, and the second to use land records with 1932 as the cut-off year to determine domicile status as the definition of 'local residents.

2. About Bill

• The first Bill, 'Jharkhand Reservation of Vacancies in Posts and Services (Amendment) Bill, 2022', raised reservation to 77 per cent.
• Local Persons Bill, 2022': '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 the local development of rivers, lakes, and 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

3. 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 legislation in the Ninth Schedule shields it from judicial scrutiny.

4.Ninth Schedule

• The Ninth Schedule contains a list of central and state laws which cannot be challenged in court. 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 to abolish the Zamindari system.
• The First Amendment added 13 laws to the Schedule. 

5.Articles 31 A and 31 B

• 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.

6. Cases where Reservation Breaches 50% Ceiling

The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and 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.

6.1.I R Coelho v State of Tamil Nadu

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 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 the 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 the exercise of judicial review power of the Court."

6.2.Scope of Judicial Review for laws placed under 9th Schedule

• The first amendment was brought by the parliament after the Kamleshwar case and with the insertion of article 31B along with the 9th schedule for giving effect to agrarian reforms.
• The provisions inserted were made to provide immunity to the laws inserted under them from judicial encroachment.
• After the first amendment, the major landmark case in which the question of immunity granted to parliament was presented before the court was the case of Shankari Prasad.
• It was asked whether Article 31B read with schedule 9 was unconstitutional by excluding the scope of judicial review.
• It was contended that excluding judicial scrutiny for such laws will amount to a violation of Article 13 (2)
• The Court rejected the petition by stating that “there is a chart clear demarcation between ordinary law and constitutional law, and so, the amendments made under Article 368 are not affected by the application of article 13 (2).
• In addition, the parliament under Article 368 is empowered to amend the fundamental rights also and in such instances judicial encroachment is impermissible.
• But, later in the Golaknath case, it was held that the parliament has no power to amend the fundamental rights including the provisions on personal property. The parliament aggrieved by the judgment in Golaknath passed the 24th amendment in 1971, which empowered it to amend any part of the Constitution including the fundamental rights.
• This stage i.e. the years following the 24th amendment may be considered as the years of a tussle on the issue of power and authority between the legislature and the Indian Judiciary which followed its course until the landmark judgment in Kesavananda Bharati (24 April 1973).
• This case put a check on the enormous power of the parliament through the introduction of basic structure doctrine and made the judiciary more powerful. This case is also regarded as the saviour of Indian democracy.