The recent emphasis put forth by a Union Minister to include all reservation-related laws in the Ninth Schedule of the Constitution has brought the issue back into focus. The minister argued that the protection from judicial review, offered by this Schedule, was necessary for reservation policies that extended beyond Scheduled Castes (SCs) and Scheduled Tribes (STs) and encompassed Other Backward Classes (OBCs) as well as financially vulnerable sections of the upper castes.
Reservation Categories and their Provisions
Reservation in India is a government policy designed to uplift historically disadvantaged communities. The SC/ST Reservation allows both the Centre and the states to make special provisions for the advancement of SCs and STs. They are entitled to a 15% and 7.5% quota respectively in government jobs and educational institutions.
Other Backward Class (OBC) Reservation grants similar privileges to OBCs. The quota for OBCs is 27%, but state governments can prescribe different limits, like Tamil Nadu’s 50% reservation for OBCs. The Supreme Court, however, capped the collective reservation quota at 50% of seats in its landmark 1992 judgement, Indra Sawhney & Others vs Union of India.
The Economically Weaker Section (EWS) Reservation, introduced in 2019 via the 103rd Constitution Amendment Act, empowers the Centre and states to reserve 10% of government jobs and educational institution seats for economically underprivileged sections of society.
Triggering Factors for the Demand
The call to shield reservation laws from judicial review follows a recent Supreme Court observation that the Right to Reservation is not a Fundamental Right. Furthermore, the court ruled that reservation in promotions in public posts is not a fundamental right. State governments cannot be compelled to provide a quota if they choose not to. Additionally, the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 and its amendments have faced repeated legal challenges.
About the Ninth Schedule
Introduced via the Constitution (First Amendment) Act of 1951, the Ninth Schedule protects certain central and state laws from judicial scrutiny. Initially listing only 13 laws, subsequent amendments have expanded it to cover 284 laws. Article 31B of the Constitution, which established the Ninth Schedule, was created to shield laws related to agrarian reform and the abolishment of the Zamindari system from judicial review.
While most protected laws concern agricultural or land issues, the Schedule extends to other subjects as well. Furthermore, Article 31B has a retrospective operation, implying laws declared unconstitutional may be preserved if added to the Schedule subsequently.
Despite this protection from judicial review, the apex court has maintained that laws under the Ninth Schedule must not violate the Fundamental Rights or the basic structure of the Constitution.
Considerations for the Future
Reservation, while necessary, should also undergo judicial scrutiny to prevent hasty or unreasonable policy initiatives by the Executive or Legislature. Any flaws or shortcomings in reservation policies must consider varied stakeholders’ inputs. The priority, therefore, is creating a rational framework for this contentious policy rather than scrapping or shielding it outright.
