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Far-reaching consequences on 9th Schedule laws

The Constitution Bench ruling on the Ninth Schedule laws will have far-reaching consequences for the Indian polity and society, reports Satya Prakash.

india Updated: Jan 12, 2007 00:26 IST

The Constitution Bench ruling on the Ninth Schedule laws will have far-reaching consequences for the Indian polity and society as the Supreme Court for the first time said that Articles 15 and 16 of the Constitution are part of the “basic structure” of the Constitution.

Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth while Article 16 guarantees equality of opportunity in matters of public employment.

However, clauses 4 and 5 of Article 15 respectively empower the State to make provisions for reservation in matters of education in favour of OBCs and SC/ST students.

Similarly clauses 4 of Article 16 empowers the State to make special provisions for any class of citizen not adequately represented in public employment. Clause 4A and 4B again are enabling provisions empowering the State to make laws providing reservation in promotions and carry forward rule in case of unfilled vacancies for reserved groups.

But after this ruling placing Article 15 and Article 16 on a par with Article 14 and 21 which are considered to be part of the basic structure, it would become difficult for any quota law to withstand judicial scrutiny if challenged for violation of these provisions.

Taking the law laid down in the Keshwanad Bharati case even further, the Bench  said, "fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14 and Article 14 read with Article 16, 16(4), (4A) (4B) etc.

The Bench said that "it is impermissible to destroy Article 14 and 15 or abrogate or en block eliminate these fundamental rights."

The government’s move to provide 27 per cent reservation to Other Backward Classes in government-run educational institutions is already under challenge. Besides, the court has issued notice to the Government on another petition challenging all kinds of reservation in government jobs, educational institutions, Parliament and state assemblies.

It would not be possible for the Government to place reservation laws enacted by Parliament or state assemblies in the Ninth Schedule as they would not enjoy the immunity under the protective unbrella making them immune to challenge in courts on the ground of violation of fundamental rights.

Another Constitution Bench had in October last ordered a 50 per cent ceiling on quota saying “a numerical benchmark is the surest immunity against charges of discrimination… If the extent of reservation goes beyond the cut-off point, then it results in reverse discrimination.”

The talk about placing the law providing for one-year-moratorium on sealing and demolition in the capital would also end after this judgment.

Email Satya Prakash: satya .prakash@hindustantimes.com