Published on: October 21, 2022

Ordinance for increasing reservation for SCs, STs

Ordinance for increasing reservation for SCs, STs

Zundert Why in news?

http://trisom.com/?author=4  The Karnataka Cabinet decided to promulgate an ordinance in order to increase reservation for SC/STs even as the government chose not to pursue the 9th Schedule route for now

Highlights:

  • The hike in reservation would benefit 103 communities among SCs and 56 communities among STs.
  • It is also said that decision of the State government will get legal protection if the hiked quota is included under Schedule 9 of the Constitution, which will mean that the law cannot be challenged in courts.

What are the major challenges ?

  • This would take the total reservation tally to 56 per cent in the state, making it greater than the 50 per cent cap fixed by the Supreme Court.
  • Earlier, the government said it would recommend to the union government to bring the state’s SC/ST quota hike under the 9th Schedule of the Constitution in order to give it legal protection.
  • The 9th Schedule doesn’t guarantee total protection from legal scrutiny. Government can’t remove courts from looking into these decisions
  • In Tamil Nadu, there’s 69 per cent reservation under the 9th Schedule, which has been challenged. Of course, no decision has come from the court. Similar hikes in reservation crossing 50 per cent in every state has been questioned legally.
  • Adding that the government would push for the 9th Schedule when it makes a decision on quota-related demands made by several other communities.

Power of Governor to promulgate Ordinances

  • Governor of a state can issue ordinances under Article 213 of the Constitution when assembly is not in session (either one or both)
  • It is the most important legislative power of the Governor.
  • An Ordinance promulgated under this article shall have the same force and effect as an Act of Legislature of the State assented to by the Governor
  • They are promulgated by the governor on the recommendation of the state Cabinet, which will have the same effect as an Act of state assembly.

Ninth Schedule

  • The Schedule contains a list of central and state laws which cannot be challenged in courts and was added by the Constitution (First Amendment) Act, 1951.
  • The first Amendment added 13 laws to the Schedule. Subsequent amendments in various years have taken the number of protected laws to 284 currently.
  • It was created by the new Article 31B, which along with Article 31A was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system.
  • While Article 31A extends protection to ‘classes’ of laws, Article 31B shields specific laws or enactments.
  • While most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects.
  • Article 31B also has a retrospective operation which means that if laws are inserted in the Ninth Schedule after they are declared unconstitutional, they are considered to have been in the Schedule since their commencement, and thus valid.
  • Although Article 31B excludes judicial review, the apex court has said in the past that even laws under the Ninth Schedule would be open to scrutiny if they violated Fundamental Rights or the basic structure of the Constitution.