An analysis of what the Ninth Schedule is, and demands to put reservation laws in it.
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Ninth Schedule's importance - Reservations debate
- The story: The Indian republic came into being on the 26th of January, 1950, as the Constitution was made enforced. It had provisions for social justice, in the form of affirmative action in favour of "reserved sections" of society, to enable them to break free from centuries of bondage and backwardness. The idea behind reservation was to help those in the SEBC classes (socially, educationally backward classes) improve their lot.
- Reservations for SCs/STs: Both the Centre and the states are permitted to make any special provision for the advancement of SCs and STs. The quota in government jobs and educational institutions for SCs and STs is 15% and 7.5% respectively (total 22.5%).
- Other Backward Class (OBC) Reservation: Both the Centre and the states are empowered to make provision for the advancement of OBCs regarding their admission to educational institutions and government jobs. The quota limit for OBCs is 27%, as per the Mandal Commission report, and the Supreme Court verdict in 1992 Indra Sawhney case. Various state governments have different quota limits for OBCs in their states, like Tamil Nadu has 50% reservation for OBCs. In the Indra Sawhney & Others vs Union of India, 1992 judgement, the Supreme Court fixed the upper limit for the combined reservation quota. It mandated that the total should not exceed 50% of seats.
- Economically Weaker Section (EWS) reservation: The 103rd Constitution Amendment Act, 2019 empowered both Centre and the states to provide 10% reservation to the EWS category of society in government jobs and educational institutions. This was not the original plan in the Constitution of 1950.
- Questions: From time to time, questions have been raised on various aspects of reservations. A lawmaker suggested that all reservation laws may be put in the IX Schedule to protect them. S.C. had 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. There also have been repeated challenges to the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 and its amendments.
- The Ninth Schedule: This Schedule contains a list of central and state laws which cannot be challenged in courts and was added by the Constitution (First Amendment) Act, 1951. The first Amendment added 13 laws to the Schedule. Subsequent amendments in various years have taken the number of protected laws to 284 currently. It was created by the new Article 31B, which along with Article 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
- While Article 31A extends protection to ‘classes’ of laws, Article 31B shields specific laws or enactments.
- While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects.
- Article 31B also has a retrospective operation which means that 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.
- Summary: Indian society is a deeply hierarchical one, and for centuries, injustice with those on the fringes was the norm. The Constitution brought all citizens at par, and gave reservations to some sections to help them elevate their standards with time. Reservation is a necessary exercise, butit should also be open to judicial scrutiny if only in order to ensure any abrupt or irrational policy initiative by the Executive or the Legislature is checked. There is also the demand for a Caste Census, to reveal the exact caste composition and numbers. However, the present govt. has rejected the idea.
- EXAM QUESTIONS: (1) Explain the requirement to have a "Ninth Schedule" in the Indian Constitution. (2) What are the top three issues related to reservations for SCs, STs and OBCs, in India? Explain pointwise.
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