Ninth Schedule of the Indian Constitution

Table of Contents

Context: Chhattisgarh Chief Minister wrote to the Prime Minister, urging him to include the state’s amended provisions in the 9th schedule of the Constitution.

Decoding the News

In Chhattisgarh’s case, the two amendment Bills — that pave the way for 76% quota for Scheduled Caste, Scheduled Tribes and Other Backward Classes — were passed unanimously by the State Assembly December 2022, but are yet to receive the Governor’s nod.
Among the reasons mentioned by the Governor for refusing to sign the Bills was a Supreme Court ruling on capping the reservations at 50%.
The Chief Minister stated that the socio-economic and educational condition of OBC people in Chhattisgarh is as weak as that of SC/ST people, and including the amended provision in the Ninth Schedule of the Constitution is necessary for justice to be served to the backward and deprived classes.
In the letter, the Chief Minister cited the example of other States such as Tamil Nadu and a 2022 Supreme Court ruling to argue in favour of lifting the 50% cap.

Why is there a need to Include in the Ninth Schedule?

The 76% reservation breaches the 50 % ceiling set by the Supreme Court in the 1992 Indra Sawhney v Union of India verdict.
However, placing a legislation in the Ninth Schedule shields it from judicial scrutiny.
Previously, the 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, 1993, reserved 69 % of the seats in colleges and jobs in the state government.

About 9th Schedule of the Indian Constitution

The 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.
Objective: The objective behind adding the Ninth schedule was to protect certain acts and regulations from being declared void on the ground that they violate the fundamental rights.
Origin: 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.

Article 31 A

It saves five categories of laws from being challenged and invalidated on the ground of contravention of the fundamental rights conferred by Article 14 and Article 19.
The five categories include:
- Acquisition of estates and related rights by the State;
- Taking over the management of properties by the State;
- Amalgamation of corporations;
- Extinguishment or modification of rights of directors or shareholders of corporations;
- Extinguishment or modification of mining leases.
It also provides the guaranteed right to compensation in case of acquisition or requisition of the private property by the state.

Article 31B

It protects the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights.
Specificity: While Article 31A extends protection to ‘classes’ of laws, Article 31B shields specific laws or enactments.
Wider in scope: The scope of Article 31B is wider than Article 31A as it immunizes any law included in the Ninth Schedule from the Fundamental Rights (unlike Article 31A that protects only five categories).
Retrospective in nature: If an act is held unconstitutional and thereafter is put under 9th schedule, it will be considered as its part since its commencement.
Current status: The first Amendment added 13 laws to the 9^th Schedule. Subsequent amendments in various years have taken the number of protected laws to 284 currently.
- While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects.

Are Laws in the Ninth Schedule completely immune from Judicial Scrutiny?

While the Ninth Schedule provides the law with a “safe harbour” from judicial review, the protection is not absolute.
In I.R. Coelho case (2007), the Supreme Court ruled that laws placed under Ninth Schedule can be challenged on the ground of violating the basic structure of the Constitution.
Laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in the court if they violated Fundamental Rights guaranteed under Article 14, 19 and 21.

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.
It is imperative to involve multiple stakeholders in addressing any gaps or limitations in the reservation policy.
Rather than taking extreme measures of completely eliminating or completely protecting the policy, a sensible framework should be established through consensus-building on this controversial issue.