Even a fender bender among politicians can have long term ramifications for the State. The recent comment made by the young LJP leader Chirag Paswan to incorporate reservation schemes under the purview of the 9th Schedule at the national stage.
To take his comments in light of the Supreme Court ruling 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 intends otherwise. The statement, however, has rekindled the long settled tussle between the politicians and the members of the judiciary.
IXth Schedule: Battle turf between the Legislature & Judiciary
The tussle between the two wings of the government, namely, the judiciary and the legislature, dates back to the Nehruvian era. The IXth Schedule is a magnum opus of Nehruvian autocracy, as it was used as a tool by the legislature of the time to curtail the power of the judiciary with respect to reviewing the constitutionality of a law passed by the centre and state governments alike. The dispute was finally settled in the case of I.R. Coelho v. State of Tamil Nadu.
Therefore, the legal perspectives of the 9th Schedule and the power of Judicial Review incidental to it, as highlighted in the historic IR Coelho v. State of Tamil Nadu judgment, need to be revisited.
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I.R. Coelho v State of Tamil Nadu
Famously known as the Ninth Schedule Case, this unanimous judgement of a 9-judge bench of the Supreme Court, led by Chief Justice Sabharwal, is a masterpiece in itself. In this case, a reference was made by a 5-judge Constitution Bench in 1999 after the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, was struck down by the Supreme Court in Balmadies Plantations Ltd. & Anr. vs. State of Tamil Nadu.
The Constitution Bench, in its referral, noted that, according to the Waman Rao Case, the insertion of amendments in the Constitution after the Kesavananda Bharati Case by inserting new laws into the Ninth Schedule can be challenged on the ground that they are violative of the fundamental rights provided in Articles 14, 19, and 31.
Findings of the 9-Judges Bench
The Supreme Court in its I.R. Coelho judgement upheld the validity of the Doctrine of Basic Structure propounded in the Kesavananda Bharati Case. Further, the Court also upheld the power of the Judiciary to review any such law that, in its opinion, would in any way destroy the basic structure of the Constitution.
The case prominently deals with the 9th Schedule and Articles 31A and 31B of the Constitution. The basic premise is that the 9th Schedule contains a list of federal and state laws that cannot be challenged in court. It was added by the Nehru government through the Constitution (First Amendment) Act, 1951.
The first amendment added 13 laws to this schedule. Subsequent amendments over the years have brought the total number of protected laws to 284 currently. These amendments added a list of the laws that were preserved from judicial scrutiny.
Setting the record straight, the Supreme Court ended the controversy regarding the validity and implementation of the basic structure doctrine. The Apex Court took the view that the “class of laws” under the 9th Schedule are protected from judicial scrutiny only to the point that they are not violative of the basic structure of the Constitution.
That is to say, no act under the 9th Schedule is good at law if it is in any manner prejudiced against the fundamental rights enshrined under the Constitution.
Also read: EWS Reservation not a contravention of Indra Sawhney vs. Union of India (1992)
Ramifications of the Judgment
The I.R. Coelho judgement is accredited with further solidifying the concept of basic structure doctrine, thereby providing appropriate checks and balances on the power of the legislature to amend the constitution.
For decades in the past, the governments of the “Nehruvian Dynasty” effectively used the 9th Schedule to curb the judicial review powers of the Supreme Court, and the domino effect trickled down to states as well, which overreached into the space of the judiciary. As a countermeasure, the judiciary came up with the judgement in this landmark case.
However, the critics of the I.R. Coelho judgement hit upon it as a divergence from the vision of the Constituent Assembly that gave us the constitution. This judgement is accused of fortifying in the legal system the “Doctrine of the Basic Structure,” which finds no textual backing in the Constitution of India.
Contemporary Challenges
The political landscape has rekindled the debate around the 9th Schedule of the Constitution of India. Taking the lead upfront, the Congress supported government headed by the Chief Minister Hemant Soren recently cleared a Bill to raise the total reservation in State of Jharkhand.
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%. The said reservation contravenes the 50 % ceiling limit set by the Supreme Court in the landmark 1992 Indra Sawhney v Union of India verdict.
Also read: 1932 Domicile Policy, 77% reservation: Soren rings the death knell for himself
On the contrary, it is in tune with the Supreme Court Constitution Bench’s majority ruling in the Economically Weaker Section (EWS) case that held the 50% cap on the reservation to be not sacrosanct.
To surmount any future litigation in the future, the Jharkhand government retorted to the age-old trick of the Nehruvian era of placing the legislation in the Ninth Schedule to shield it from judicial scrutiny by passing a resolution in this favor.
That is to say, if the judiciary takes down the law in the future, it would reignite the tussle between the judiciary and the legislature.
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