Should Constitutional Protection under the Ninth Schedule be extended to the Jharkhand Bills on Reservation and Land Reform?

Teesha Deb, III-year law student at National Law University, Odisha

ABSTRACT

The article attempts to test the constitutionality of the inclusion of the Jharkhand Reservation and Land Reform bills under the Ninth Schedule. Before answering the question, the article delves into the provisions of the Constitution which deal with Reservation. Although the Constitution grants reservation to several disadvantaged social groups, the paper constricts its scope to those articles which deal with the Reservation of Scheduled Castes, Scheduled Tribes and Economically Weaker Sections of the Society. While discussing reservation, it is also important to talk about Article 14 which guarantees right to equality as reservation was previously perceived as a digression from the norm of equality. It was believed that reservation makes special provision for certain classes which goes against the ideal of subjecting everyone to equal conditions. Eventually, it was realized that equality is not the same as similarity. Achieving equality requires recognizing the disadvantaged groups and making provisions for them in the form of Reservations. The article then proceeds to discuss the 2 bills introduced by the Jharkhand Legislative Assembly – Jharkhand Local Persons Bill 2022 and Jharkhand Reservation in Vacancies in Posts and Service Amendment Bill, 2022 They essentially encompass the principle of equality by making provisions for the historically oppressed and underprivileged communities. The article further describes the historical objective with which under the Ninth Schedule was introduced. The Ninth Schedule aimed to provide immunity to land reforms and agrarian laws against judicial intervention. The Ninth Schedule was introduced Past Independence, to abolish the zamindari system and ensure equitable distribution of land and material resources. The two contentious bills are proposed to be placed under this Ninth Schedule. The article comes to a conclusion by putting forth arguments against the proposal of the inclusion of the bills under the immunity of the Ninth Schedule.

INTRODUCTION

It is a well-known fact that Reservation has been a blazing topic of discussion since its very inception when the Indian Constitution was being drafted. Over the years there have been several judicial precedents and legislative policies which have shaped the structure of Reservations in our country. Recently, the Jharkhand Legislative Assembly passed two bills that have increased reservation to 77% exceeding the traditional threshold of 50% adhered to by the Centre and the States to date. The Bills have further been granted protection under the Ninth Schedule of the Constitution, safeguarding them from judicial review. This article delves into the prevalent provisions of reservation in our country and the objective they seek to achieve.  The article further analyzes the constitutional validity of the bills in light of the judicial precedents and whether they should be protected from judicial scrutiny of the courts.

LEGISLATIVE INTENT BEHIND ARTICLE 15 AND ARTICLE 16

Article 15 to Article 16(4)(B) were introduced in the constitution with the objective of alleviating the status of the lesser privileged sections of the society which according to the drafters of the Constitutions included –

1. Women
2. Children
3. Scheduled Caste (SC)
4. Scheduled Tribes (ST)
5. Socially and Educationally Backward Class
6. Backward Class of Citizen not represented in services under the State
7. Anglo Saxon Community
8. Women belonging to SC and ST
9. Backward Classes of Citizens
10. Economically Weaker Sections

While the identity of some groups like women and children is easily distinguishable from the masses leaving little scope for manipulation; the same has not been the case for several other groups. Hence identification of members of such groups and making provisions for their upliftment has always been subjected to greater surveillance and scrutiny. Some provisions do not explicitly discuss reservation like Article 15(3) does whose intended benefit is to authorize the state to make special provisions. Such special provisions can be in the form of scholarships, special schools, etc., and are better understood as affirmative action policies. They identify vulnerable groups, and marginalized societies thereby empowering the state to take affirmative action concerning the communities to address their marginalization and vulnerability.

The reservation frequently deliberated upon is the one provided to members of Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes (OBC). Schedule caste has been defined in Article 366(24) which states that SC refers to such castes which have been notified as SC under Article 341. 366(25) gives a similar definition of ST and refers to article 342 of the constitution. The Ministry of Social Justice gives an FAQ on the parameters based on which SC can be identified and the criterion is historical oppression. They further elaborate on the following prerequisite conditions – 

1. the community has faced extreme social, educational, and economic backwardness, and 
2. the same was a result of the traditional practice of untouchability.

Similarly, the criteria for being eligible for STs is as follows-

1. Indication of primitive traits
2. Distinctive culture
3. Geographical isolation
4. Distant from the community at large
5. Suffering from backwardness

The objective behind the provisions for providing reservation has been clearly reiterated through several judicial precedents in the past. The provisions have been construed as a means for the upliftment of the oppressed communities. Such groups have been subjected to social and historical injustices which prohibited them from prospering owing to systematic discrimination. It was meant to be used as a tool by the Constitution for readdressing the plight of such groups.

RESERVATION IN LIGHT OF ARTICLE 14

Article 14 has been raised as a denial of power to the state and direction of the use of power by the state. It stresses upon how the State shall not deny to any citizen or non-citizen, natural as well as legal person equality before the law or equal protection under the law.

Initially, Reservation was considered to be an exception to the principle of equality. It was construed as a deviation from the norm or principle as it provided special privileges to certain communities. This was in opposition to the idea of subjecting every individual to equal conditions. The Upper Ceiling on Reservation or the 50% cap was structured upon this principle as well. It was believed that since Reservation is an exception to the majority, it should never surpass the majority and hence all reservations should be capped at or limited to 50%. The judiciary’s perception on Reservation impeding the norm of equality was visible through its judgments in cases like Balaji vs State of Mysore^[1] and T Devadasan Vs UOI^[2]     .

However, this perception was changed for the 1st time in NM Thomas Vs State of Kerala^[3]. In this case, Article 15(4) and Article 16(4) were no longer considered to be an exception to Article 15(1) and 16(1). Clause (1) of both the Articles provide that the state shall not deny equality of opportunity but (4) says that there shall be reservation for socially and educationally backward classes. Through this judgment, Reservation was reckoned to be a part of Equality.

The judiciary elucidated how ‘equality’ is not the same as ‘similarity’. Unlike similarity, equality does not mean all people should be treated in the same manner. Instead, it recognizes how different communities have been subjected to different conditions and suggests the identification of such groups which have been marginalized, oppressed, suppressed and exploited so that their grievances can be readdressed. From the NM Thomas case the perception of reservation changed. It was no longer perceived as an exception to equality but as an essential part of it that seeks to address historical imbalances resulting from a malicious social structure. This view was further concretized in several future judgments, an eminent one being Indra Sawhney vs UOI, 1992^[4], and General Manager Southern Railway vs Rangachari, 1962^[5].

THE BILLS PASSED BY THE JHARKHAND LEGISLATIVE ASSEMBLY

The Legislative Assembly of Jharkhand has recently passed two contentious bills, one of which determines the criteria for domicile while^[6] the other raises reservation in government jobs provided by the state up to seventy-seven percent (77%). Both of the bills shall come into effect after their inclusion under the Ninth Schedule by the Central Government.

According to the Jharkhand Definition of Local Persons and for Extending the Consequential, Social, Cultural and Other Benefits to Such Local Persons Bill, 2022^[7], anyone whose names or predecessors’ names appear in the Khatiyan (land records) from 1932 or earlier will be deemed indigenous residents of Jharkhand and exclusively eligible for grade 3 and 4 positions.   Furthermore, people without lands or those who fail to meet the given criteria of listing under 1932 Khatiyan shall be certified by the particular Gram Sabha depending on their heritage, native rituals, practices, etc. The present domicile policy which is essential for obtaining various state entitlements was established in 1985 as the foundation year for determining who might possess Jharkhand domicile.

Jharkhand Reservation in Vacancies in Posts and Service Amendment Bill, 2022^[8], enhances reservation in state government positions for historically and financially disadvantaged groups from 60% to 77%. In consonance with the provisions of the bill, reservations for different social groups shall increase in the following manner – 

1. Scheduled Tribes (ST) would increase to 28% (from 26%),
2. Other Backward Classes (OBCs) would receive 27% (up from 14%), and
3. Scheduled Castes (SC) would receive 12% (up from 10%).

After accounting for 10% of the EWS (economically weaker group), the total reserve would be 77%.

COMPARISON OF THE PROVISIONS OF THE BILL WITH JUDICIAL PRECEDENTS ON RESERVATION (JUDGEMENTS ON UPPER CEILING)

The provisions of the Jharkhand Reservation in Vacancies in Posts and Services Amendment Bill, 2022 are in contravention of the principle of the upper ceiling in the reservation.  Although the importance of the upper ceiling has been propounded by the landmark Indra Sawhney judgment which is often cited as a relevant judicial precedent in cases of reservation, the principle has been in existence even before equality was interpreted in an inclusive manner to bring reservation under its ambit.

In the M.R. Balaji vs State of Mysore^[9] case, the Court primarily expressed its opinion upon reservation being an exception to the principle of equality. It also elucidated upon the linkage between Reservation being a deviation from equality and the upper ceiling. The Court elaborated upon how Exception cannot be the Majority and hence it should be less than the rule or norm. Therefore, Reservation cannot exceed 50%.

This was further strengthened in T Devadasan Vs UOI^[10]. However, the dissenting opinion by Justice Hidayatullah clarified that 50% is guidance and not the norm which is also in consonance with the articulation of the judgment in MR Balaji V. State of Mysore. Both the judgments suggested reservation being capped at less than 50% as a policy preference and not a rule.

In the Indra Sawhney vs UOI, the court clarified its stance upon reservation being a necessary prerequisite for achieving equality. However, the bench stuck to the 50% bar on reservation justifying their stance by relying upon Article 335. Article 335 discusses the requirement to keep in mind the efficiency of the administration while considering claims of reservation by members. It further stresses upon the importance of efficiency and how it should be considered to be of paramount importance. The bench also opined that if reservation causes an impediment to efficiency then the same shall be deemed unwise, impermissible, and unlawful.

OBJECTIVE OF THE NINTH SCHEDULE

The Ninth Schedule was introduced through the 1st Constitutional Amendment, along with Articles 31a and 31b. While Articles 31a and 31b empowered the states to bring forth land reforms and abolish the zamindari system, Ninth Schedule protected such laws from judicial review. Hence, they were complementary and went hand in hand in providing immunity to agrarian laws. The necessity of articles 31a, 31b, and the Ninth Schedule has to be perceived through historical lenses to realize their significance. After independence from the British, our country was plagued by the problem of concentration of land and material resources in the hands of a select few belonging to the class of zamindars and feudal lords. Whereas, several others belonging to the lower castes were left landless.

The genesis of Ninth Schedule was a result of Kameshwar Prasad V State of Bihar^[11] where the Bihar High Court had struck down the Land Reforms Act on the ground of inadequacy of compensation. Through an array of similar cases, the government concluded that the judiciary may present obstacles in the government’s initiative to abolish the Zamindari system. This inference could be conjectured from the judicial intervention in the Government’s proposals to introduce land reforms and thereby ensure equitable distribution of land in consonance with the Directive Principles of State Policy under Articles 39b and 39c of the constitution. To prevent judicial intervention, the 1st Constitutional Amendment came as a relief in the aftermath of the Kameshwar Singh case.

Subsequent to its introduction, there have been skirmishes between the judiciary and the government which were settled through Keshavananda Bharati^[12] . The concept of the Basic Structure of the Constitution was introduced where the judges held that “all provisions of the constitution can be amended but those amendments which will abrogate or take away the essence or basic structure of constitution which included Fundamental Rights are fit to be struck down by the court”. Judicial Review being a basic structure of the constitution limited the scope of the Ninth Schedule.

CONSTITUTIONALITY OF INCLUSION OF THE BILLS UNDER THE NINTH SCHEDULE

While the Jharkhand Local Persons Bill, 2022, is essentially congruent to the nature of other land reform laws and aimed at being inclusive in nature, the Jharkhand Reservation in Vacancies in Posts and Service Amendment Bill, 2022, does not delve into the subject of any agrarian or land reform at all. Therefore, keeping in mind the limited scope of the Ninth Schedule, the bill should not have been granted protection under this schedule in the 1st place. This is the first line of reasoning for the non-inclusion of the bill under the Ninth Schedule, which the author shall rely upon. The very objective of the introduction of the Ninth Schedule was to abolish the zamindari system and ensure equitable distribution of land, thereby rectifying the social injustices which resulted from the denial of resources to disadvantaged social groups. Although the bill in question also seeks to readdress the plight suffered by the historically oppressed communities; it seeks to achieve the same through provisions of reservation and not through the manner which has been envisaged under the Ninth Schedule.

The author’s second line of reasoning stems from the basic structure of the constitution and is applicable against both bills. The importance of upholding the basic structure of the constitution and discarding amendments that repudiate the same has been explicitly elucidated in the Keshavnanda Bharti case. Judicial Review is one of the most important components of the basic structure of the constitution and providing immunity to the bills against judicial review should be construed as a violation of the basic structure. Even if the author moves apart from this argument and tests the validity of the inclusion of the bills under the Ninth schedule on logical grounds, then such protection should not be granted. Had the provisions of the bill been in consonance with the other provisions of law, it would have been upheld by the judiciary. Moreover, the Ninth Schedule was introduced right after the independence of India and was structured in a manner that it could cater to the needs of the society of those times. There have been considerable changes of tremendous magnitude since its inception and keeping in mind the societal conditions of today, the bills should not be granted immunity under the schedule in question.

References

[1]AIR 1962 SC 649

[2] 1964 SCR (4) 680

[3] 1976 SCR (1) 1906

[4] AIR 1993 SC 477

[5] AIR 1962 SC 36

[6] Act no. 6 of 2021 – PRS legislative research (no date). Available at: https://prsindia.org/files/bills_acts/acts_states/jharkhand/2021/Act%206%20of%202021%20Jharkhand.pdf 

[7]https://prsindia.org/files/bills_acts/acts_states/jharkhand/2021/The%20Jharkhand%20State%20Employment%20Of%20Local%20Candidates%20In%20Private%20Sector%20Act,%202021.pdf

[8]https://www.panchayat.gov.in/documents/20126/0/Jharkhand+PR+Act-2001.pdf/09da2687-082d-bd2a-2d1b-de5326378be3?t=1554878817858

[9] AIR 1963 SC 649

[10]AIR 1964 SC 179

[11] AIR 1962 SC 1166

[12] AIR 1973 SC 1461

Teesha Deb

III-year Law Student at National Law University, Odisha