On 20th June, Patna High Court gave a big blow to Bihar government by rejecting its 65 percent caste based reservation. The court called it unconstitutional by calling it a violation of the reservation limit of 50 percent. In fact, in November last year, the Nitish Kumar led government had decided to increase the reservation limit in the state from 50 to 65 percent.

Then the government said that this decision is in the interest of justice for the deprived and backward classes. When the Patna High Court rejected it on 20 June, the 9th Schedule of the Constitution suddenly came into discussion. It was said that if the decision of caste-based reservation had found a place in the 9th Schedule, then it would have been outside the scope of judicial review.

When the Patna High Court delivered its verdict, it said, “Reservation for backward classes was conceived to break the hold of the few and at the cost of the many. But merit cannot be totally obliterated or sacrificed at the altar of compensation. This was the principle on the basis of which the limit of 50% was fixed for reservation.”

Here, the court was referring to the Indira Sawhney vs. Government of India case in its judgment, when in 1992, the Supreme Court gave an important judgment and limited the reservation limit to a maximum of 50 percent. In this judgment, the Supreme Court said two important things. First, the criteria for qualifying for reservation is “social and educational backwardness”; second, the upper quota for reservation should not exceed 50 percent. However, the court also said that, “Unless there are special circumstances, the quota of 50 percent will be applicable.”

However, after this decision of the Supreme Court, many state governments including Bihar have tried to implement more than 50 percent reservation. States like Maharashtra, Haryana and Andhra Pradesh can be named in this series. But each of them was defeated in the courts.

However, Tamil Nadu is a state where more than 50 percent reservation is in place and is continuing unhindered. The 9th Schedule has played an important role in keeping this system moving. Here the question arises, how? But before answering this question, let us understand the 9th Schedule.

Actually, the 9th Schedule is a part of the Constitution in which a list of central and state laws is present. The special thing about this list is that any laws that are included in it cannot be challenged in the courts. Till 2022, there were 284 such laws which were exempted from judicial review. Most of the laws protected under this schedule are related to agriculture or land issues.

The 9th Schedule was introduced under the First Amendment to the Constitution. For this, a new Article 31B was added to the Constitution, which along with 31A was aimed at providing protection to laws related to agricultural reform and abolition of the zamindari system. While 31A was meant to protect categories of laws, 31B was intended as a shield for specific laws.

After the 9th Schedule was introduced, initially 13 laws were added to it. After this, more amendments were made to it. And now a total of 284 protected laws are recorded in it. But here a question arises that can the laws recorded in this schedule really not be challenged in the courts? To understand the answer to this properly, let us first know the Tamil Nadu reservation case.

It has already been mentioned above that in the Indira Sahni case, the Supreme Court had fixed the maximum limit of reservation at 50 percent. But in Tamil Nadu, people have been getting 69 percent reservation for the last 35 years. The question is how? Actually, this story is about 50 years old. Till 1971, there was a provision of only 41 percent reservation in this state. But when M Karunanidhi became the Chief Minister after the death of Annadurai, he formed a commission under the leadership of Sattanath.

The commission submitted its recommendations to the state government and Karunanidhi increased the reservation for OBCs from 25 to 31 percent. Apart from this, the SC-ST quota was also increased from 16 to 18 percent. In this way, the total caste-based reservation in the state increased to 49 percent. After this, when the AIADMK government was formed in the state in 1980, it increased the quota for backward classes to 50 percent. And the reservation for SC-ST was already 18 percent. In this way, the total reservation in the state became 68 percent.

In 1989, when Karunanidhi’s government came back to power, 20 percent reservation was given separately for the backward castes in this quota. After this, in 1990, after the decision of Madras High Court, 1 percent ST quota was given separately in addition to 18 percent SC reservation. In this way, the total quota increased to 69 percent in the state. But in 1992, when the Supreme Court said in the Indira Sahni case that caste-based reservation cannot exceed 50 percent, it was like a shock for the Tamil Nadu government.

When it came to admission of students of the state in educational institutions for the session 1993-94, the then Jayalalithaa government approached the Madras High Court. On this, the court ordered that this year admission can be taken through the old reservation, but from the next session the rule of 50 percent limit will have to be followed. Jayalalithaa also went to the Supreme Court against this decision but here too she got a setback.

After this setback from the Supreme Court, the Jayalalithaa government called a special session of the assembly in November 1993, and a resolution was passed. This resolution was related to putting the caste-based reservation law in the 9th Schedule. Jayalalithaa went to the then PV Narasimha Rao government with this proposal. After this, the Narasimha Rao government put that reservation law in the 9th Schedule of the Constitution.

After being included in the 9th Schedule, that law is now out of the scope of judicial review. And this is the reason that even today the system of 69 percent reservation is continuing uninterrupted there. Seeing this, many states also later requested the central government to include their reservation laws in the 9th Schedule.

After implementing the new reservation system in Bihar, Nitish Kumar himself had tried for this many times. But now let us come back to the question whether the laws mentioned in the 9th Schedule cannot be challenged in the courts?

It is true that the 9th Schedule “protects” the law from judicial review, but it is not completely outside its purview. In 2007, when the Tamil Nadu reservation law was challenged in the Supreme Court in the case of I.R. Coelho vs State of Tamil Nadu, the Supreme Court gave its judgment.

In its unanimous verdict, the 9-judge bench said that though the laws placed under the 9th Schedule cannot be challenged on the ground of violation of fundamental rights, they will not be beyond the scope of judicial review if they violate the basic structure of the Constitution.