Legal

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This Blog is written by Punit Agrawal  from Narsee Monjee Institute of Management Studies, Indore. Edited by Debargha Mukherjee.

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INTRODUCTION

What is the Ninth schedule of Indian Constitution?

A list of central and state laws which cannot be challenged in courts is provided for under the Ninth Schedule. 284 such laws under the above schedule are currently shielded from judicial review. In 1951, when the constitution was first amended, this Schedule became a part of the Constitution [1]. The Ninth Schedule of the Constitution is where the laws of the Government enjoy immunity from judicial review. It bars the courts, including the Supreme Court, to quash the law on the ground that it infringes fundamental rights. In the 1950s and 1960s, the Hon’ble Supreme Court struck down land reform laws on the ground that it had violated the right to property, which the government had specified in the Ninth Schedule of the Constitution. It was no longer a fundamental right. Over the course of time, some 250+ odd laws have found their way into the Ninth Schedule.

In 1951, when the constitution was first amended, the Schedule became a part of the Constitution. New Article 31A along with Article 31B was inserted to protect legislations related to the agrarian reforms and the abolition of Zamindari system. While Article. 31A extends protection to “classes” of laws, Specific laws or Acts are shielded by Article 31B. [2]

Jawaharlal Nehru stated during a speech at Parliament, “If there is agrarian trouble and insecurity of land tenure nobody knows what is to happen. Therefore, these long arguments and these repeated appeals in courts are dangerous to the State, from the security point of view, from the food production point of view, and from the individual point of view, whether it is that of the zamindar or the tenant or any intermediary.” [3]

SIGNIFICANCE OF THIS DEVELOPMENT

Land reforms are essentially a systematic policy action enunciating Land ownership regulations and customs. For a country like India, which has been struggling to make itself dependent on its agriculture for a long time, proper legislation might lead to growth. Every State, through their respective government(s) has been constantly trying to control the land system in a particular way, which has led to an increase in the State’s revenues.

India is mainly an agricultural country with almost three fourth of the population being dependant on agricultural or rural economy. Post-independence in 1947, the majority of the citizen of India lived in the rural areas and was dependant for their livelihood on the agricultural economy. The living status of the farmers during the British period was critical and deplorable. Their poor economic condition was attributable mainly to the British policies. The Indian farmers were very frustrated by the British rulers’ plans and actions, which affected the agricultural production.

As a result, the Central and State Governments had moved a long way of removing the unhealthiest obstacles to ensure agrarian progress is in place. Land reform programs were in place with particular importance to two specific objects. One of the objects was to eliminate such obstacles from the agrarian production to increase inherited structure from the past. This was aimed to contribute to the conditions for agricultural economy with high standards in developing productivity and performance, as quickly as possible. The second, closely connected with the first object, removes all elements of agricultural exploitation and social injustice program for ensuring soil tiller protection and fair treatment and instils a framework according chance of participation to the rural population in all segments.

IMPACT

On 11 January 2007, the Nine Judge Constitutional Bench of the Supreme Court held that the touchstone of the basic or essential features of the Constitution as reflected in Article 21, read with Article 14, must be tested for every constitutional amendment which occurred on or after 24 April 1973 by the inclusion in the Ninth Schedule, of various laws therein. In other words, even if a constitutional amendment puts an Act in the Ninth Schedule, it would be open to attack on the grounds that it destroys or damages the basic structure if the fundamental rights taken away or abrogated pertains to the basic structure [3]. Further, the Supreme Court stated that, if this Court has already upheld the validity of any Ninth Schedule Act, it would not be able to reconsider that legislation on the principles stated therein. However, if any law held to be violative of any rights in Part III of the Constitution is subsequently incorporated into the Ninth Schedule after 24 April 1973, such a violation or infraction shall be open to challenge on the grounds that it destroys or damages the basic structure referred to in Article 21 read with Article 14, Article 19, and the principles underlying thereunder.

CASE LAW(S)

In connection with the order of reference dated 14 September 1999 to a larger bench by the five Judges bench in I.R Coelho (dead) by LRs v. State of Tamil Nadu [4], the nine Judges Constitution Bench held that the Ninth Schedule Laws were protected constitutionally.  On the touchstone of the basic structure doctrine, their validity have to be adjudged by applying the direct impact and effect test which means the form of an amendment is not relevant, but its consequences will be the determinative factor [5].

The larger bench responding to the question referred vide Order dated 14th September, 1999 held the following:

• A law which abrogates or abridges the rights guaranteed under Part III of the Constitution may or may not violate the basic structure doctrine. If former is the consequence of law, whether by amending any Article of Part III or by insertion in the ninth schedule, such law in the exercise of the Court’s power of judicial review will have to be invalidated.

• Kesavananda Bharti’s majority judgment read with Indira Gandhi’s case calls for judging the validity of every new constitutional amendment on its merits. The actual impact and effects of the law on the rights guaranteed under Part III must be considered to determine whether the basic structure is destroyed or not. The impact test would determine the validity of the challenge.

• All constitutional amendments made on or after 24 April 1973 by which the Ninth Schedule is amended by including different laws shall have to be tested in the touchstone of basic or essential characteristics of the Constitution as reflected in 21 read Art. 14, Art.19 and Art.21 of the Constitution and the underlying principles. In other words, even if an Act were inserted in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertain to the basic structure.

• If there were already confirmation of the validity of any Ninth Schedule Law by the Apex Court, such a law on the principles declared by this judgement would not be open for challenge. However, if a law infringes any rights under Part III and is subsequently included in the Ninth Schedule, after 24 April, 1973, such violation / infraction shall be open to challenge on the ground that it destroys or damage the basic structure as indicated in Art. 21 read with Art.14, Art.19 and the underlying principles thereunder.

ANALYSIS

The Ninth schedule and Article 31-B excluded judicial review on grounds of land reform legislation and the right to property considered earlier as the fundamental right, became statutory right. After deletion of the fundamental right to property, the validity of the laws under the Ninth Schedule excluded from judicial review have been doubted owing to its misuse. It is important to tackle the issue of misuse of the powers by the Parliament and exclusion of the Ninth Schedule from the powers of judicial review confers unfetter rights. Even after the deletion of right to property, Parliament in order to demonstrate its supremacy, did not bother to include the Ninth Schedule to allow judicial review. Unlike the UK Constitution, where the Parliament sits at the Apex of the power, the basic framework of the Indian Constitution envisaging independent judicial review cannot be usurped through Constitutional amendment by the Parliament, which betrays the values and principles enshrined in the Constitution. Such attitude not only challenges the basic principles of separation of powers under Indian Constitution but is a big threat to democracy as well.  The decision of the Constitutional bench in I.R. Coelho case regarding the validity of the laws under Ninth Schedule uphold that the basic structure of the Constitution would have no meaning without judicial review of the powers of the legislature.

CONCLUSION

It is clear from the above discussion that the Framers of the Constitution deliberately excluded the scope of judicial review questioning the validity of the laws passed by the legislatures and placed in the Ninth Schedule of Constitution. The nature of right to property had been recognized as fundamental right when the Constitution came into force. However, the real problem began when the first constitutional amendment was made thereby inserting Article 31-A, Article 31-B and Ninth Schedule.

The legislature has inserted the previously mentioned provisions and Ninth Schedule to protect the laws on agrarian reforms whereby the basic right of property was affected. Land reforms and right to property are mutually sworn enemies and if the legislators intended to enact such land reform laws, it would have certainly infringed the fundamental right to property, which was enshrined in our Constitution since inception. Hence, to avoid the said conflict the framers inserted Ninth Schedule along with Art 31-B to immune these from the challenge of its Constitutional validity for contravention of Article 13(2) of the Constitution.

Article 31-B read with the Ninth Schedule of the Constitution was introduced earlier with a view to promote social change and uphold social justice, in order to protect some land reform legislations from the scope of judicial review. However, the scope had been expanded for enactment of recent draconian laws as MISA, COFEPOSA, Representation of People Act etc., to protect these legislations from judicial review, in the event of their challenge as violative of the fundamental rights. Unlike Article 31-A, the scope and ambit of Article 31-B is not restricted to property-related laws only, thereby giving the Parliament unfettered powers to incorporate any legislation in the ninth schedule as it considers deemed fit and appropriate. Hence, Art. 31-B is more vulnerable for greater abuse and misuse.

The abuse of Ninth Schedule started with the fourth Constitutional amendment, wherein out of the seven legislations, three laws were unrelated to land reforms. Thereafter, the Ninth Schedule was indiscriminately misused to include hybrid laws with the purview of the Schedule by virtue of the 39th, 40th and 76th Constitutional Amendments. Exercise of amending power by invoking Art.31-B “is no longer a mere exception” limited to land reforms only, rendering reduction of the efficacy of Ninth Schedule. Indiscriminate use of Art.31-B and Ninth Schedule resulted in destroying and damaging the principle of Constitutionalism.

REFERENCES

[1] The Constitution (First Amendment) Act, 1951.

[2] The Constitution of India, 1950.

[3] Parliament Debates Vol.XII – XIII, pt.II.p.8814 (1951)

[4] I.R.Coelho v. State of Tamilnadu (1999) 7 S.C.C 580 (India).

[5] I.R.Coelho v. State of Tamilnadu A.I.R. 2007 S.C 861 (India).

[6] P M Bakshi, Constitution of India (17th ed., LexisNexis 2020).