Analysis of Ninth Schedule of Indian Constitution

The Constitution (First Amendment) Bill was introduced by the then Prime Minister Nehru  in the Lok Sabha (Provisional Parliament) on 8th May, 1951. On 16th May 1951, after the introduction of the bill, JL Nehru moved that Bill to amend the Constitution to be referred to a Select Committee consisting of himself and twenty other members of the Provisional Parliament. While moving the Bill he said:

“The Bill is neither big nor very complicated one. Nevertheless, it is of intrinsic and great importance and is hardly pointed out. Further it was contended that the major intention was to put a very important provision before the house related to Article 31.It was essential to emphasise the need of Art.31-B and Ninth Schedule, as if they did not make proper arrangements for the land, all their schemes would fail. As such something of the above amendment was necessary.”

Introduction:

In 1951, the Ninth Schedule was drafted by the Nehru government. The Constitution (First Amendment) Act, 1951, also introduced  the Articles 31A and 31B with effect from June 18, 1951 ensure certain laws were valid even if it violated the fundamental rights of citizen.Some of the techniques of the Constitutional amendment such as being novel, drastic and innovative was represented by the Ninth Schedule and Arts.31-A and 31-B. In the area of Constitutional Amendment, it was an interesting Innovation. A new technique of by-passing judicial review was initiated.

Initially, only thirteen State Acts can be put to any challenge in courts for contravention of Fundamental Rights. But Schedule Nine has expanded swelledrse of time as all kinds of statutes have been included therein to protect them from judicial review. As a result, now the schedule contains 284 entries.

To move towards more egalitarian society, zamindari abolition and land reform laws were passed after independence, but still the government was facing several problems regarding the efforts of social engineering which as a result the land legislation was challenged in the court. The first case challenging the land law was Kameshwar Singh V State of Bihar, during this case the Bihar Land Reforms Act 1950 was challenged on the bottom that the classification of zamindars made for the aim for giving compensation was discriminatory and denied equal protection of laws bound to the citizen under Article 14 of the Constitution. The Patna HighCourt held this part of legislation as violative of Article 14 because there was classification of the zamindars for the motive to getthe payments of compensation during a discriminatory manner.

As a result of these judicial pronouncements, the government got apprehensive that the entire agrarian reform programmes would be endangered.The legislature amended the Constitution within the year 1951 to ensure that agrarian reform legislation didn’t run into heavy weather, which inserted Ninth Schedule.

Background:

Status of Ninth Schedule in Pre I.R.Coelho’s case:

The Constitution (First Amendment) Act in 1951 inserted Article 31B read with Ninth Schedule, the same was challenged in Shankari Prasad v. Union of India[i].

Two principal contentions were urged for the petitioners. In the first place it was urged that the Constitution-makers had in mind of Art.11 of the Japanese Constitution declaring certain rights to be “eternal and inviolate” and also Art.5 of the U.S. Constitution by which “No State shall be deprived of its equal representation in the senate without consent.”Art.13 was thus intended to place the fundamental rights beyond the reach of even Constitution Amendment. Secondly, the definition of law in Art13 (3) being inclusive definition must necessarily include a Constitutional Amendment and hence a Constitutional Amendment also comes with in the prohibition of Art.13 (2).

Both the contentions were unanimously rejected by the five judge bench. The Court pointed out that the terms of Art.368 are perfectly general and confer power on Parliament to amend the Constitution without exception whatever. The terms of Art.13 (2) are also general. Hence by the rule of Harmonious Construction, Art13 (2) should be read down so as to exclude a Constitutional Amendment.

Further, Court observed that, there is a well-recognized distinction between Constitutional Law and Ordinary Law, the former being made in exercise of constituent power while the latter is made in exercise of legislative power. Hence, a constitutional amendment made under Art.368 will not come with in the mischief of Art13 (2).

Another contention before the Court was that since the First Amendment declares that certain kinds of law will not be void for violation of Fundamental Rights, the jurisdiction of Supreme Court and High Courts was to that extent curtailed and therefore the First Amendment required ratification by the State Legislatures under the Proviso to Art.368.

The Court rejected the argument as proceeding on a misconception that the First Amendment sought to make any changes in Arts.226, 132 or 136. The powers of the Court under those Articles still remain intact: only certain classes of cases have been excluded from the operation of Art.13 so that there will be no occasion for the Courts to exercise their powers in respect of those cases.

Thus, the First Amendment, and the power of Parliament to abridge or take away any of the Fundamental Rights by a constitutional amendment made under Art.368, were upheld by an unanimous Court.

Development of Ninth Schedule in Post I.R. Coelho’s Case:

The recent case has been of utmost importance relating to the confrontation of power between the Supreme Court and the Parliament given in the present case study. With Kesavananda Bharti’s decision that the violation of Doctrine of Basic Structure will not be considered,the judgement in this case by holding the Parliament’s amending power subject to Judicial Review in line, put an end to the politico-legal controversy.

The Nine-Judge bench headed by Y.K. Sabharwal, C.J.I., after a reference being made to it by a Five-judge Bench has unanimously pronounced upon the constitutional validity of the Ninth Schedule laws that, in the post-1973 era, thatthe basic structure of the Constitution can be affected as they are open to attack for causing the infraction. For escaping the judicial scrutiny, they are open to be challenged in the courts of law andsuch laws will not get the protection of the Ninth Schedule.

In this connection, the researcher has made an attempt to analyze the case by stating the facts of the case, the issues involved the contentions of the petitioner and respondents and the decision of the Apex Court is of utmost importance. The researcher has also placed the development of law that has been considered by the Supreme Court.

I. R. Coelho v. State of Tamil Nadu:[ii]

In the recent judgement, the Supreme Court in I.R.Coelho has initiated the thought process among various segments and different interpretations have emerged. The Supreme Court of India, with a nine judge bench held unanimously that, wherein the Court isconfronted with a very important yet not very easy task of determining the nature and character of the protection provided by Art.31-B of the Constitution of India to the laws added to the Ninth Schedule by amendments made after 24th April 1973, the date on which the judgment was pronounced in the Kesavananda Bharathi’s case propounding the doctrine of basic structure of the Constitution to test the validity of constitutional amendments.

Objectives of Ninth Schedule:

The First Amendment of Constitution introduced the ninth schedule, for its adoption and inclusionthe following objectives were framed. They are:

  1. To protect the agrarian reforms laws i.e. to say to push land reforms.
  2. To abolish the zamindari system which was deemed to be an evil and a terrible evil of feudalism should be ended and socialism should be ushered in, was a slogan then.
  3. To immunize certain Acts and regulations from a challenge and the ground of violations of Fundamental Rights under Arts.14 and 19 of the Constitution.
  4. To bring the weaker section of the society into main stream and uphold the interest of same category.
  5. To promote social change towards a more equal justice and the Constitutional goal of egalitarianism.
  6. To reduce the concentration of land in a few hands, so that the agriculturist may feel sure of reaping the fruits of his labour.

The objective behind Art.31-B read with Ninth Schedule is “to remove difficulties and not obliterate Part III in its entirety or judicial review”. The objective was essentially to accelerate the process of land reforms.

Constitutional Amendments and the Ninth Schedule:

The Ninth Schedule has the effect of nullifying the judicial pronouncement prospectively as well as retrospectively. It is agreed by all, that the legislature can nullify the effect of judicial decisions by changing the basis of decision and giving it retrospective effect.

Constitutional validity of laws placed in the Ninth Schedule through different amendments have been questioned from Shankari Prasad[iii] case to Kesavananda Bharathi and from Forty-fourth Amendment to I.R.Coelho case. However, the legislature is not allowed to directly overrule a decision pronounced by the competent Court[iv]. It can neither be done in the exercise of the constituent or amendment powernor in the exercise of ordinary legislative power[v]. In all cases, the law relating to the agrarian revolution was challenged.

Conclusion:

While concluding, it may be stated that it was some sort of deliberate attempt of the constitution framers to exclude the scope of judicial review for the laws placed under the ninth schedule. This is evident from the very fact that the character and nature of the right  to property was, from its inception, such to initiate various disputes. However, when few non-agrarian laws were excluded from the scope of judicial scrutiny, after the 4th amendment, the misuse of Article 31B and ninth schedule started.

But ultimately, the intervention of the Apex Court from Shankari Prasad to Keshavananda Bharati was essential as it had ensured to place a check on the powers of the law making body by explaining the basic structure of the Constitution of India. It may be stated that when the parliament deleted the law of the right to property through the 44th amendment, it should have amended the provisions of the ninth schedule to allow judicial review. But, it didn’t happen and thus, Article 31B along with ninth schedule continued to act as a blanket of the parliament to include any law that it considers fit and proper, opening the likelihood of the abuse and misuse of 9th schedule.


[i]A.I.R. 1951 S.C. 458.

[ii]2007(1) SC, 197 Quorum; Y.K. Sabharwal, CJI., Ashok Bhan, Arijit Pasayat, B.B. Singh, S.H. Kapadia,

C.K. Thakker, P.K. Balasubramanyan, AltamasKabir and D.K.

[iii]Shankari Prasad v.Union of India A.I.R. 1951 S.C. 458.

[iv]Tirath Ram RajendraNath v. State of U.P.(1973) 3 SC585

[v]Baldev Singh, “Ninth Schedule to Constitution of India: A Study”, Vol. 37(4), Journal of the Indian Law

Institute, , at 462.

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