Evolution of the Ninth Schedule and its relevance in the present context

The ninth schedule has a very interesting origin. It was suggested by the then former Advocate-General of Tamil Nadu, V.K.T. Chari, whose knowledge of law was profound. He wrote to the then Law Secretary suggesting that a new schedule could be created which could contain all the laws relating to land reform legislation. These laws could be made valid retrospectively and, for the future, these laws could be made immune from being challenged as violative of Articles 14, 19 and 31. The Ninth Schedule is, therefore, a unique feature of our Constitution. Gajndragadkar J. remarked that only India had a constitution that contained a provision for protection against itself.[1] The Ninth schedule, in retrospect, was an accident of history. The initial rumblings of the use of Fundamental Rights to thwart “social reform” began as early as 1951. Angered by the Patna High Court Judgment in Kameshwar Singh’s[2] case when the court struck down the land reform law, Pandit Jawaharlal Nehru’s government chose to amend the Constitution to save land reform laws, instead of appealing in the Apex Court. The first amendment to the Indian Constitution added the Ninth Schedule to it. It was introduced by the interim Government headed by Pandit Nehru to address the judicial decisions and pronouncements especially about the chapter on Fundamental Rights. Pandit. Nehru was crystal clear about the first amendment. The State wanted to pursue nationalisation, take away land from the zamindars, re-distribute them, and make special provisions for the socially and economically backward. Despite having architected the Indian Constitution, Pandit. Nehru was not confident that the laws made to pursue these special interests of the State would stand up to judicial scrutiny on account of being discriminatory. The First Amendment that brought upon Articles 31A and 31B conferring upon the State the right to make laws to acquire private property and to deem such laws as not being discriminatory and to further protect all such laws from any judicial review by creating something called the Ninth Schedule lie in the land acquisition by the State, given the current political debate on Special Economic Zones and Singur, Nandigram. Since, the First Amendment, the Ninth Schedule has been relied upon to amend the constitution multiple times over. The Fourth Amendment inserted six acts to the Ninth Schedule, Seventeenth amendment added forty-four more acts, Twenty-ninth amendment brought in two acts from Kerala. Similarly, Thirty-Fourth amendment in 1974 added twenty more land tenure and land reforms laws enacted by the States. In 1975, Indira Gandhi’s infamous abuse of executive power leading up to emergency saw the Thirty-Ninth Amendment adding certain central enactments. The year 1976 saw the 40th amendment even more to the Ninth Schedule. The 47th amendment in 1984 added more, and then in 1990 the 66th amendment gave more protection to land ceiling acts. The 76th amendment to accommodate Tamil Nadu Government’s   legislation to provide for reservations to the level of 69 percent for SC/ST and OBCs followed. What takes the cake, however, is the 78th amendment, which was not just about immunity to laws in 9th Schedule, which was suspect, but amendments to those laws and making those laws immune. Since then there were absurd laws from Sugarcane supporting price to the New Delhi Urban Zoning Laws all clamouring for an exalted spot in much abused Ninth Schedule. Over the years, the 9th schedule is being used as to tuck in laws over which the Parliament (or the party in power with a 2/3rd majority in the Parliament) wanted to exclude the judicial review – including laws like the Monopolies and Restrictive Trade Practices Act, and the Foreign Exchange Regulation Act which could hardly have been challenged.

Till the time when the Hon’ble Supreme Court decided Shankari Prasad[3] and Sajjan Singh case,[4] the Hon’ble Court’s view was in conformity and similar with that of the Legislature. The Supreme Court viewed that there was no threat from the enhanced power of the legislature and that the radical agrarian reform was necessary to curb down the menace of poverty and change the system unequal distribution of land holdings in the countryside. In addition, the insertions of various laws within the Ninth Schedule also supported the faith of the Court on the statecraft of the leaders like Jawaharlal Nehru and Lal Bahadur Shastri. However, the coordination between the judiciary and the legislature doesn’t last for long, with the coming of Indira Gandhi in the Centre, the power granted under the Article 31-B was being widely misused by the legislature to achieve their political ends. This provoked judiciary to control the enhanced legislative power of the legislature.

In the case of I.C. Golaknath & Ors. v. State of Punjab,[5] the Apex Court took a stricter view and held that if an amendment abridged or took away a fundamental right guaranteed by Part III of the Constitution, the amending act itself was void and ultra vires. In other words, the Parliament has no power to amend or take away the fundamental rights enshrined under Part III of the Constitution.

Subsequently in Keshavananda Bharti v. State of  Kerala,[6] the Supreme Court held that all the provisions of the Constitution can be amended, but the provision affecting the fundamental rights or basic structure of the Constitution could not be amended; and if any Constitutional Amendment which alters the basic structure of the Constitution could be struck down by the court.

In the case of I.R. Coelho v. State of Madras[7] the Hon’ble Court entirely relied upon the judgment of Kesavananda Bharti. The contentions that arose in this case are:

  1. Is it permissible to immunise the 9th Schedule from the Judicial Review of the Supreme Court?
  2. Whether the basic structure test would include Judicial Review of Ninth Schedule laws on the touchstone of Fundamental Rights?

The answer to the aforementioned questions was that no, it is absolutely not permissible to make the Ninth Schedule immunized from the Judicial Review of the Constitution and yes, if the amendment of the Constitution should be said to be ultra vires if the amendment transgresses the boundaries of the limitations which has been imposed on the amending power on the touchstone of the Constitution.

  1. Whether the basic structure test would also include the Judicial Review of Ninth Schedule laws on the touchstone of Fundamental Rights?

Yes, the basic structure would also include the basic Judicial Review of Ninth Schedule laws on the touchstone of the Fundamental Rights. The consequences of the evolution of the principle of Basic Structure is that the Ninth Schedule laws cannot be conferred with constitutional immunity of the kind created by Article 31B. The court further held that the basic structure is the fundamental aspects of the Constitution which cannot be abridged or destroyed. A law inserted in the Ninth Schedule or in any other part of the Constitution would either abrogate or abridge the rights guaranteed in Part III of the Constitution may violate the basic structure doctrine or may not. If the above condition tested to be positive, then law would be invalidated by the Judicial review power of the court. The Constitutional validity of the Ninth Schedule laws on the touchstone of the Basic Structure Doctrine, which can be adjudged by applying the direct impact and effect of the right’s test. This test would see the determinative factor of the law and not the particular law. The Basic Structure of the constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of the basic structure then it will be struck down. The extent of abrogation and limit of abridgement shall have to be examined in each case.

In the words of the then Chief Justice Y.K. Sabharwal:-

“If the validity of any Ninth Schedule law has already been upheld by the Supreme Court(in its earlier judgments), it would not be open to challenge such law again on the principles declared by this judgment. However, if a law is held to be violative of any rights in  Part III, it is subsequently incorporated in the Ninth Schedule after 24th April 1973, such a violation/ infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article  21 read with Article 14, Article 19 and the principles underlying thereunder.”

Therefore, since the fundamental rights are the most important part of the Constitution along with the basic structure, it is essential that Ninth Schedule laws should be tested on the touchstone of the Fundamental Rights.

It is perceptible that there was never an epochal for the Ninth Schedule and the Central government instead of focusing upon the aims and objectives of the Ninth Schedule focused more upon how to use the schedule 9 as a political tool. The Hon’ble Supreme Court putting aside the political as well as judicial ambivalence to rest rightly observed in the I.R. Coelho case that the doctrine of basic structure is an integral part of the country’s edifice and the court has gone further and has held that any constitutional amendment which entails violation of any fundamental rights which the court regards as forming part of the basic structure of the Constitution then the same can be struck down depending upon its act and consequences.

Thanks to the basic structure doctrine the judiciary cannot be deprived of the power of judicial review nor can the rule of law be abrogated. Again thanks to this doctrine that federalism cannot be obliterated and States made vassals of the Centre. The bad experiences of the emergency period have further added the significance to the power of the judicial review, which is the most powerful remedy against the State arbitrariness and protection of fundamental rights. In the Indian context and experience substantiating gains resulting from the basic structure doctrine and a bulwark against further erosion of basic fundamental rights.

 

[1] Granville Austin, Working a Democratic Constitution, The Indian Experience, Oxford University Press(1999), p. 85

[2] A.I.R 1951, Patna 51

[3] Shankari Prasad Singh Deo v. Stae of Bihar, A.I.R. 1951 S.C.458

[4] Sajjan Singh v. State of Rajasthan, A.I.R 1965 S.C. 845

[5] A.I.R 1967 2 SCR 762

[6] A.I.R 1974 S.C. 1461

[7] A.I.R 2007 SC 861

 

AUTHOR

Amardeep Kumar

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