Bihar is making headlines with its proposal to include the Bihar Reservation of Vacancies in Posts and Services Amendment Act, 2023 and the Bihar Reservation Act, 2023 in the Ninth Schedule of the Indian Constitution.
The Ninth Schedule is a unique aspect of the Indian Constitution that contains a list of laws exempt from judicial review. This means these laws cannot be challenged in courts on the basis of violating fundamental rights.
Bihar's inclusion of these laws in the Ninth Schedule aims to protect them from being invalidated by the judiciary for exceeding the 50% ceiling on reservations established by the Supreme Court in the Indra Sawhney case.
The proposed laws intend to increase the total quantum of reservations in Bihar to 75%. This encompasses an elevation in quotas for:
Other states have also sought to exceed the 50% reservation limit and have attempted to shield such laws by placing them in the Ninth Schedule. However, the Supreme Court has ruled that even laws included in the Ninth Schedule could be subject to judicial review if they violate the "basic structure" of the Constitution.
The controversy arises from the perception that placing laws in the Ninth Schedule to protect them from judicial review could be a means to bypass the Supreme Court's guidelines on reservations. This has led to ongoing debates regarding the balance between affirmative action and the right to equality.
If Bihar's laws are added to the Ninth Schedule, it could establish a precedent for other states to follow suit, prompting a re-evaluation of the reservation policy across India. Furthermore, it raises critical questions regarding the use of the Ninth Schedule as a tool to protect laws from judicial scrutiny.
In conclusion, Bihar's initiative marks a significant step in the evolving landscape of reservation policies in India, with far-reaching implications for the future of affirmative action.
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