The Congress in its Karnataka election manifesto has promised to increase the SC/ST/OBC/Minority reservation ceiling from 50% to 75%. The party says this is to accommodate the ‘hopes and aspirations of minorities as well as other backward classes including Lingayats and Vokkliggas in the state’. The party added that the new ceiling will be pursued by invoking the Ninth Schedule of the Constitution.
A Ninth Schedule legislation cannot be challenged in court and previously, the Tamil Nadu government used this safeguard to raise their reservation quota to 69%, as against the 50% limit prescribed by law. But in case the Congress comes to power in Karnataka and tables a Bill for 75% reservations, it will still need the President’s assent and the support of the Union government, which at this point, looks tricky.
Here is why Ninth Schedule legislations enjoy this immunity from judicial review and how they have previously been used in the context of reservations.
The Ninth Schedule, along with Article 31B, was added to the Constitution in 1951 and says that none of the Acts in the Ninth Schedule can be challenged in court. When this provision was inserted in the Constitution in 1951, the focus was on land reform laws and putting an end to the Zamindari system. The Ninth Schedule was also to ensure that in the future, any law that aims to bring in social reforms is protected from being thwarted.
Article 31B reads: None of the Acts and Regulations specified in the Ninth Schedule, nor any of the provisions thereof, shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation, or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force
At first, this immunity for a Ninth Schedule legislation was absolute. But through judicial interpretation, it has been established over time that if such legislation violates the basic structure of the Constitution, it can still be challenged in court. However, the scope of such judicial scrutiny of Ninth Schedule legislations remains limited.
In 1992, the Supreme Court, in the Indira Sawhney case – or the Mandal Commission judgement, as it is known – declared that the upper limit for reservation in the country must not exceed 50%. But the government of Tamil Nadu relied on the Ninth Schedule to maintain its reservation quota of 69%.
Up until 1971, Tamil Nadu’s total reservation had stood at 41%. Following the recommendations of the Sattanathan Commission, DMK’s M Karunanidhi increased it to 49% when he came to power. Further, in 1980 AIADMK’s MG Ramachandran increased it to 68%, which eventually became 69% after Karunanidhi’s intervention. Therefore, as of 1990, before the Indira Sawhney judgement, TN’s reservation stood at 69%.
The government approached the Madras High Court in 1993 asking to continue its reservation policy citing admissions to schools, colleges, and other educational institutions in the state for the academic year 1993-94. The HC said they may do so for the year and asked for the quota to be capped within 50% by the next year.
The Tamil Nadu government then introduced a Bill, called the Tamil Nadu Backward Classes, Scheduled Castes, and Scheduled Tribes (Reservation of Seats in Educational Institutions and of appointments or posts in the Services under the State) Bill, 1993. It was sent for the President’s approval. The then Chief Minister Jayalalithaa met the Union government and finally, with the President’s assent, the 69% quota was upheld and placed in the Ninth Schedule upon the insistence of Jayalalithaa to make it immune from judicial scrutiny.
However, more recently, in 2021, the Supreme Court struck down Maharashtra’s Socially and Educationally Backward Classes Act, 2018, which grants reservations to the Maratha community, for exceeding the 50% limit on reservations. This Act was not pursued as a Ninth Schedule legislation and hence, it was challenged in court, leading to the SC striking it down.
In their election manifesto, the Congress in Karnataka also seems to play by the same logic as the Tamil Nadu government by promising that the proposed increase of SC/ST/OBC/Minority reservation ceiling to 75% in the state will be pursued as a Ninth Schedule legislation.
As watertight as this sounds in an election manifesto, in case the Congress manages to form a government in Karnataka and table a Bill introducing the new reservation ceiling, it will have to be forwarded to the President for assent. This could be very tricky for them considering that it will depend on how the Union government responds to the Bill.
Political observers say that in the case of the Tamil Nadu government, the inclusion of the new reservation ceiling in the Ninth Schedule was possible only because the Union government was pressured, and they then helped in the matter. In the backdrop of the Maharashtra government’s Maratha reservation being struck down because it was not included in the Ninth Schedule, it is a slippery slope for any state to pass a Bill increasing reservation limit and hope that it will remain intact.
The Indira Sawhney judgement itself says that while reservations should not exceed 50%, this can be breached considering regional factors and extraordinary situations. The Maratha reservation judgement by the SC does mention that the Marathas are influential in the society and that there is no basis for enhancing their reservation quota. How this 75% reservation promise of the Congress in Karnataka will play out if they win this election remains to be seen.