The Constitution (First Amendment) Act of 1951 adopted Article 31B, and, correspondingly, the Ninth Schedule, as a mechanism to shield land reform legislation from future threats to the touchstone of Fundamental Rights. The Supreme Court in L.R. Coelho v. The T.N. Province held that the ninth schedule items are immune to judicial review but this defence was qualified by subjecting certain laws to judicial review on the basis that the Basic Framework was abrogated. With the express purpose of protecting land reform laws, Article 31B was passed. What is interesting, then, is that while the Constitution incorporated the simplistic Article 31A, the framers of the Constitution felt the need to preserve laws on land reform.
In 2007, a landmark judgement was issued by a nine-judge Constitution bench led by Chief Justice YK Sabharwal. The tribunal said, “Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right.” The court claimed that one organ should not be vested with the right to pass a statute and decide the legality of the limits. “The validity of the limitation on the rights in Part III (Fundamental Rights as given in the Constitution) can only be examined by another independent organ, namely, the judiciary.” While upholding the power of Parliament to ratify the Law pursuant to Article 368 and to place laws in the Ninth Schedule, the court stated that it was a restricted power which was subject to judicial review. If any legislation is kept under that same 9th schedule, even if it infringes the FRs, it goes unanswered (Fundamental Rights). But, now, it is well-founded that even though such laws are constitutionally valid and the government is entitled to place any law under the umbrella of the 9th schedule, if they do not conform with both the ‘basic structure doctrine’ established in Keshavananda Bharati’s landmark case, they are also prone to judicial scrutiny.
Significance of Case Laws
The court did agree with the government just after the institution of Articles 31B and 9 of the Schedule that these regulations are essential for agrarian reforms and for the establishment of equality on a larger level. But the conflict between the judiciary began with the case of Golaknath v. State of Punjab (1967) and proceeded until Keshavananda Bharati’s landmark judgement (1973A proposition is to amend Article 31B by incorporating new indications relating to the type of legislation on land reform that can now be provided.
Through its largest constitutional bench of 13 magistrates, the Apex Court stated in its decision in the Kesavananda Bharati case that “although the amendments made under Article 368 are Constitutional, the court is entitled to reject any of them if their nature is such that ‘they may violate the basic structure of the Indian Constitution”. The criteria would be to check whether there is a potential for the statute concerned to violate any article that acts as a touchstone to the entire Indian Constitution.
Through the implementation of the basic structure doctrine, this case put a check on the huge power of the parliament and made the judiciary more strong. This situation is also considered to be the great saviour of Indian democracy.
“Nevertheless, when a similar matter attained the jury in Indira Gandhi v Raj Narain, concerning the 39th amendment by the senate that added some controversial laws under the ninth timetable, the court held that “ordinary laws placed under the 9th timetable cannot be subject to the basic structure test and only the constitutional changes ” under Section 368 are susceptible to legal oversight if they are violative of the basic structure.[i]
Retrospective Nature of Article 31-B
The other aspect of article 31-B is that when a law is ruled invalid by a judge and is then included within the 9th schedule, it is historical in nature and must be treated as having become included with the schedule from its inception. It thus provided all laws under the schedule with blanket immunity. In certain case law, the SC has maintained that article 31B is a new, revolutionary and dramatic strategy for amendment. Legislative enactments are introduced into the constitution and immunised on the basis of violation of any of the constitutional rights from the assaults. The 9th schedule has been continuously extended since the year 1951 to where it is today at 284 acts which are included in it. 13 statutes were added to the schedule by the first amendment to the constitution in 1951. The 4th legislative amendment was further amended, and 6 new acts were included. 17th amendment added 44 laws and 29th amendment added a total of 20 additional laws.[ii]
The Ninth Schedule initially was composed of thirteen laws, each directed at land reforms; currently, it consists of a multitude of two hundred and eighty-four laws regulating reserves, industries, commerce and mining, gaining the image of a ‘Political Dustbin’ in the Ninth Schedule, to name a few.
Constitutional changes introduced on or after 24 April 1973, pursuant to which the ninth schedule is modified, will then be subject to judicial examination solely on the basis that the fundamental framework alluded to in Articles 14, 19 and 21 and the concepts underlying those articles was infringed. Furthermore, Article 31B’s fictitious immunity does not preclude it from being checked based on its fundamental form.
Any parts of Article 329A were considered to be unconstitutional by Indira Gandhi and the Constitution (Forty-Fourth Amendment) Act, 1978 abolished the clause completely with effect from 20 June 1979. The Monopolies and Unfair Trading Practices Act was later adopted by the Thirty-Ninth Amendment in the sense of the emergency of 1975.
Current Position of Ninth Schedule
The 9th Schedule has been extended continuously since 1951 so that 284 Acts are included in it today. Thirteen statutes were added to the 9th Schedule by the 1st Constitutional Amendment Act, 1951. The 4th legislative amendment act was amended, and six further acts were included. Forty-four laws were added under the 7th amendment act. The 39th amendment act of the constitutional act incorporated 38 more laws in the year 1975. Another 64 laws were further applied to the 9th schedule by the 42nd amendment act. More statutes were added to the 47th constitutional amendment 1984 and the number of measures in the 9th schedule increased to 202. The 66th amendment introduced 55 land reform acts into the schedule in 1990. The statutory 76th Act of 1994 is enacted by the parliament to conform with the laws of the Tamil Nadu govt. In the 9th schedule to exempt the statute from the domain of judicial exam which provided 69 per cent reservation on backward classes. The legislative 78th amendment 1995 revised 9th schedule again and added 27 laws on land reforms which took the total number of acts to 284.[iii]
Basic Structure Doctrine
The Fundamental Form remains an omnipotent and ineffable term frequently followed by the word ‘etc.’ to suggest that all the central characteristics of the Constitution cannot be suggested. The Indian judiciary has mostly used the doctrine of the fundamental framework to preserve judicial authority. The doctrine of the basic structure proceeds with a mistrust of the political mechanism, which would undoubtedly be part of the basic structure itself. In restricting the right to modify, autonomy, a central aspect, is literally suppressed by the basic structure doctrine.
Heroes of the Basic System will contend that it is important to provide a versatile judicial shield in an emerging democracy such as India to fight and regulate any (imminent or otherwise) possible abuse of power even by Legislature. They will say that the constitutional framework and its identity are secured “to guarantee continuity and, depending on the situation and circumstances of the day, changes are admissible within that continuity of identity. It is to protect and promote the will of the people who are giving themselves their Constitution and to ensure that their rights and freedoms are preserved that it has become relevant” and extremely crucial to have the Basic Structure, especially, in an era of vote bank politics.
The question before the supreme court is not just to rule that ‘ninth-scheduled’ should not be laws that contradict the basic framework. It is to view the basic framework in such a way that it can invalidate rules, such as a 69 per cent reservation, that do violent harm to a fundamental right. It is equity in this situation, but other privileges might still be jeopardised if the use of the Ninth Schedule is not regulated.[iv] While a reservation is appropriate, the Executive or Legislative should still be open to judicial review in order to ensure some sudden or unreasonable policy initiative. Any reservation policy loophole or shortcomings must be resolved by involving different stakeholders. The need for the hour is not to go to the extreme ends from either scrapping or shielding reservation, but to develop a rational framework for this controversial policy.[v]
[i] Ninth Schedule of the Indian constitution, available at: https://www.civilsdaily.com/news/ninth-schedule-of-the-indian-constitution/ (last visited on January 25, 2021).
[ii] Ninth Schedule, available at: http://www.legalserviceindia.com/articles/nineth.htm (last visited on January 25, 2021).
[iii] Ninth Schedule, available at: http://www.legalserviceindia.com/articles/nineth.htm (last visited on January 25, 2021).
[iv] Regulating the Ninth Schedule, available at: https://economictimes.indiatimes.com//regulating-the-ninth schedule/articleshow/589501.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (last visited on January 26, 2021)
[v] Inclusion of Reservation in Ninth Schedule, available at: https://www.drishtiias.com/daily-updates/daily-news-analysis/inclusion-of-reservation-laws-in-ninth-schedule (last visited on January 26, 2021)
BY SHREYA SHARMA | NATIONAL LAW UNIVERSITY ODISHA