The Haryana assembly passed a bill on Tuesday to provide 10% reservation in government jobs and educational institutions to Jats and five other castes in the state.
It will further increase the quota in the state to 67%, which is impermissible in view of the 1992 Supreme Court judgment in the Indira Sawhney case (Mandal case) prescribing a 50% ceiling.
The Manohar Lal Khattar government will request the Centre to include the Jat quota law in the Ninth Schedule of the Constitution that provides a protective umbrella to laws placed in it.
HT explains the implications of a law being placed in the Ninth Schedule of the Constitution:
What is Ninth Schedule?
The Ninth Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B with a view to provide a “protective umbrella” to land reforms laws to save them from being challenged in courts on the ground of violation of fundamental rights.
According to Article 13(2) of the Constitution, the state shall not make any law inconsistent with the fundamental rights and any law made in contravention of fundamental rights shall be void to the extent of the contravention.
What is the importance of Article 31-B?
Article 31-B saves conflict of laws with fundamental rights by giving validation based on “fictional immunity” that laws enacted under it and placed in the Ninth Schedule are immune to challenge in a court of law even if such a law violated fundamental rights.
Challenges to laws placed in Ninth Schedule
In IR Coelho versus State of Tamil Nadu, various laws placed in the Ninth Schedule were challenged on the ground that any law violating fundamental rights should be struck down as “unconstitutional” and that the court’s power of judicial review cannot be taken away. A nine-judge constitution bench delivered its verdict on the issue in January 2007.
What did the SC constitution bench say?
a) The SC upheld the validity of Article 31-B and Parliament’s power to place a particular law in the Ninth Schedule.
b) But it said laws placed in the Ninth Schedule are open to judicial scrutiny and that such laws do not enjoy a blanket protection.
c) Laws placed in the Ninth Schedule after the Keshwanand Bharti Judgment on April 24, 1973, when it propounded the “basic structure” doctrine, were open to challenge.
d) If the SC has already upheld the validity of any Ninth Schedule Law, it would not be open to challenge such a law again on the principles declared in the latest judgment delivered on January 11, 2007.
e) All actions taken or transactions finalised, as a result of the impugned acts shall not be open to challenge.
f) It laid down dual test to examine the validity of a law placed in the Ninth Schedule. Whether it violates any fundamental right and if yes whether the violation also damages or destroys the basic structure. If the answer to both the questions is in the affirmative, then only a law placed in the Ninth Schedule can be declared unconstitutional.
What is the basic structure of the Constitution?
In the Keshwanand Bharati case, a 13-judge constitution bench of the SC propounded the “basic structure” doctrine in 1973. While upholding Parliament’s power to amend the Constitution under Article 368, the SC said it was a limited power subject to judicial review.
The court also said that by using the power to amend the Constitution, Parliament cannot alter its basic or essential features like federal structure, separation of power between the three organs of the states, judicial review, etc.
Since then the court has added many other features to the list of basic features like secularism etc.