SUMAN K SHRIVASTAVA
Ranchi, Sept 19: Recently, the Jharkhand cabinet took a decision to enact a policy to define the locals policy on the basis of 1932 land records and earmark 77 percent reservation for the underprivileged with a rider that the new laws will be implemented after they are put in the Ninth Schedule of the Constitution.
Notably, the Jharkhand High Court had struck down a similar policy in 2002 and so the State government knew it fully well that the proposed laws will not stand the constitutional touchstone and so lobbed the ball in the Centre’s court to place them in the Ninth Schedule of the Constitution.
What is the Ninth Schedule?
The Ninth Schedule contains a list of central and state legislations that are not subject to legal challenge. There are now 284 such laws that are immune from judicial review. When the Constitution was revised for the first time in 1951, the 9th Schedule became a part of it. It was established by the government’s new Article 31B, which, together with Article 31A, was enacted to protect legislation pertaining to agrarian reform and the abolition of the Zamindari system. While the majority of the legislation covered by the Schedule is related to agriculture and land, the list also includes includes a Tamil Nadu law that provides for 69% reservation in the state.
What did Supreme Court say on Ninth Schedule immunity?
A nine-judge bench headed by then Chief Justice Y K Sabharwal, while delivering a judgment in 2007 dealt with two questions:
- Can an Act or the part which violates Arts. 14, 19 or 21 be included in 9th schedule?
- Is it mandatory that only a constitutional amendment which destroys the basic structure be struck down?
Deciding a reference made by a five-member constitution bench on the justiciability of laws placed in the Ninth Schedule, it held that any law placed in the Ninth Schedule after April 24, 1973 (when the Supreme Court propounded the basic structure doctrine in the Kesavananda Bharti’s case) will be open to challenge.
The Supreme Court held that every law must be tested under Art. 14, 19 and 21 if it came into force after 24th April 1973. In addition, the court upheld its previous rulings and declared that any act can be challenged and is open to scrutiny by the judiciary if it is not in consonance with the basic structure of the constitution.
In addition, it was held that if the constitutional validity of any law under the Ninth Schedule has been upheld before, in future it cannot be challenged again. Thus, it put a check on the legislature to formulate laws so that they do not take away the rights of the citizen and thus settled all the dilemmas prevailing over the law under the 9th schedule.
The court said, “Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right.”
The court has said the authority to enact a law and decide the legality of the limitations cannot be vested in one organ. “The validity to the limitation on the rights in Part III (Fundamental Rights as given in the Constitution) can only be examined by another independent organ, namely, the judiciary.”
The Apex Court has said that even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack “on the ground that they destroy or damage the basic structure, if the Fundamental Rights are taken away or abrogated pertaining to the basic structure”.
The Bench, for the first time said that Articles 15 and 16 of the Constitution (on reservation in educational institutions and government jobs respectively) were part of the “basic structure.”
Laying down the tests to be adopted to examine the validity of laws placed in the Ninth Schedule, the court said that firstly, it would have to be seen if the law in question violated any fundamental right. If yes, it will have to be examined if the violation of that particular fundamental right amounts to violation of the basic structure of the Constitution as well. It could be judged on the basis of the nature and degree of the rights violated and the impact of the law.
