The JD(U) plans to appeal to the Narendra Modi government to include Nitish Kumar’s 65 per cent reservation policy for OBCs, EBCs, SCs, and STs in the Ninth Schedule of the Constitution after the Supreme Court’s decision to not grant an interim stay on the Patna High Court’s order striking down the policy, senior party leaders have told News18.
The move aims to protect the reservation policy from judicial review, ensuring its implementation without legal challenges.
KC Tyagi, senior leader and national spokesperson of JD(U), said: “Nitish Kumar-ji recently announced his intention to urge the prime minister to include the provision for increased reservation quotas for OBCs and EBCs in the Ninth Schedule of the Constitution. He said so in the last assembly session. The inclusion would ensure that the provisions are not subjected to judicial review. We are sure that Nitish-ji will find a way. There are similar instances in the past, for example, when Jayalalitha’s government in Tamil Nadu sought such a redressal from the Centre.”
Reservation as ‘Pivotal Politics’
Following a caste survey carried out by his government in Bihar, Kumar — issuing a notification — increased reservation quota from 50 per cent to 65 per cent for BC (Backward Classes), EBC (Extremely Backward Classes), SC (Scheduled Castes), and STs (Scheduled Tribes) in the state.
In November last year, the government termed it the state’s efforts to bring caste parity in employment and educational institutions. However, in June 2024, the Patna High Court struck down the amendment, calling it ‘bad in law’ and ‘violative of equality clause’. The state then moved the Supreme Court, seeking interim stay on the HC order. However, this was not granted by the apex court.
Reacting to the SC’s order, senior JD(U) leaders said politics in Bihar revolves around caste. The combination of Muslims and Yadavs has been a loyal and steady voter base for the rival RJD in the state.
“Reservation and caste-parity issues are the political pivots in Bihar. The judiciary may not consider that, but our ally at the Centre should see the political compulsion here. Nitish-ji will have to seek support from the Centre on this,” said a senior JD(U) leader.
What is the Ninth Schedule?
The Ninth Schedule of the Constitution was introduced by the First Amendment in 1951. It contains a list of laws that are exempt from judicial review. The main purpose of this Schedule was to protect land reforms and other laws included in it from being challenged and invalidated in the process on the grounds of violation of fundamental rights.
Initially, the laws, provisions or policies listed in the Ninth Schedule were immune from judicial review. It means that the courts would not be able to examine whether these laws violated any fundamental rights guaranteed by the Constitution. This was intended to ensure that socio-economic reforms could be implemented without legal hindrance.
However, over the period of time, the country’s legal discourse has taken a shift on several issues. Even though the Ninth Schedule still exists and continues to list laws, its immunity from judicial review is not absolute. Any law added to it after the Kesavananda Bharati judgment can be reviewed by the judiciary to ensure it does not violate the basic structure of the Constitution.
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