Jharkhand Reservation Bill & Ninth Schedule of the Indian Constitution

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    In News

    • The Jharkhand Assembly recently cleared a Bill to raise the total reservation in State government posts.

    Jharkhand Reservation of Vacancies in Posts and Services (Amendment) Bill, 2022

    • About:
      • The Jharkhand Assembly passed a Bill to raise the total reservation for Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) in State government posts to up to 77%. 
    • Amending Ninth schedule:
      • In the Bill passed by the Jharkhand Assembly, the recommendation is to amend the Ninth Schedule of the Constitution accordingly.
      • Why the need to include it in the Ninth Schedule?
        • The 77 percent reservation breaches the 50 percent 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.
    • 50% ceiling:
      • Without directly referring to the Indra Sawhney judgment of 1993, the Bill passed in Jharkhand Assembly noted that the 50% ceiling set out in the judgment never explicitly prohibited the breaching of the limit. 

    Background

    • Indra Sawhney case: 
      • In the Indra Sawhney vs Union of India, popularly known as the Mandal Commission case, the Supreme Court ordered that total reservation should not exceed 50 percent. 
        • Critics believe that the 50 percent ceiling is a constitutional requirement without which the structure of equality of opportunity would collapse.
    • Supreme Court’s recent judgment regarding flexibility on the 50% cap on the reservation: 
      • The bill was cleared in the backdrop of a Supreme Court Constitution Bench’s majority ruling in the Economically Weaker Section (EWS) case that the 50% cap on the reservation was not sacrosanct. 
    • Outcome of this judgment: 
      • This ruling of SC has paved the way to give new life to the argument of several other States fighting to increase reservations for Socially and Economically Backward Classes (SEBC) beyond the 50% mark. 
      • Now, after the Jharkhand Assembly’s move and the EWS judgment on this aspect, other States like Madhya Pradesh, Chhattisgarh and Karnataka are likely to get a fresh impetus to argue for extending reservations for Backward Classes beyond the 50% limit
      • Ninth schedule:
        • Before the EWS judgment once again affirming that the Indra Sawhney decision does not specifically bar a breach of the 50% limit, State governments considered that the only way to raise reservations was through a Constitutional amendment that included their legislations in the Ninth Schedule. 

    103rd Amendment Act

    • About:
      • The Parliament amended the Constitution of India (103rd Amendment) Act, 2019 to provide for a 10% reservation in education and government jobs in India for a section of the General category candidates.
    • Introduction of Article 15 (6) and Article 16 (6):
      • The amendment introduced economic reservation by amending Articles 15 and 16. It inserted Article 15 (6) and Article 16 (6) in the Constitution to allow reservation for the economically backward in the unreserved category. 
        • Article 15(6): 
          • Up to 10% of seats may be reserved for EWS for admission in educational institutions. Such reservations will not apply to minority educational institutions.
        • Article 16(6): 
          • It permits the government to reserve up to 10% of all government posts for the EWS.

    More about the Ninth Schedule

    • About:
      • 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.
    • Origin:
      • 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
        • Article 31A extends protection to ‘classes’ of laws, 
        • Article 31B shields specific laws or enactments.
    • Evolution:
      • 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.
    • So are laws in the Ninth Schedule completely exempted from judicial scrutiny?
      • While the Ninth Schedule provides the law with a “safe harbour” from judicial review, the protection is not blanket.
      • The Supreme Court ruled in a 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.
      • Basic structure test:
        • 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.

    Related provisions in the constitution

    • Article 16(1) and 16(2) assure citizens equality of opportunity in employment or appointment to any government office.
    • Article 15(1) generally prohibits any discrimination against any citizen on the grounds of religion, caste, sex or place of birth.
    • Articles 15(4) and 16(4) state that the equality provisions do not prevent the government from making special provisions in matters of admission to educational institutions or jobs in favour of backward classes, particularly the Scheduled Castes (SCs) and the Scheduled Tribes (STs).
    • Article 16(4A) allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.

    Source: TH