Constitutionality of The Ninth Schedule

Articles 13 and 31-B in Part III of the Constitution are arguably the most contradicting laws of the Indian Constitution. Article 13 precludes the state from formulating any law which takes away the rights of the individuals and proclaims that any law made in contravention of this clause shall, to the extent of the contravention, be void.

In contrast, Article 31-B says that none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this part. Article 13 incorporates a rife norm in the Indian constitution that the fundamental rights of an individual should be kept unchallengeable from any kind of incursions, be it legislative or executive. Article 31-B amalgamated with the Ninth Schedule serves as an exception to it. This following discussion focuses on historical background, constitutionality and criticisms of the aforementioned articles.

Historical lead-up

India brought to fruition independence from colonial rule on 15 August 1947. It formally adopted its constitution on 26thof November 1949 to become the world’s largest democracy. With this turn of events, a country with the second-largest population the world, socially backward, economically retarded and, culturally diverse, was finally in a position to dictate its future course of action with a view to rebuild strongly and efficaciously its destiny independently.[1]

The preamble of this very constitution lays down that the state shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice – social, economic and political shall inform all the institutions of national life. It super scribes that the state must form policies which will work towards the apposite distribution of resources so that the common good is espoused.[2]

It further adds that the state must ensure that operation of the economic system does not lead to concentration of wealth and means of production at the hands of certain fractions of the society which will act towards common detriment. Hence, at the onset of the governance, the state called upon itself to formulate a society based on social equality and economic justice. At the time of independence, a significant part of the country’s population lived in the villages and was dependent on agriculture, hence to attain the goal of social and economic justice, agrarian reforms were most important.[3]

The paramount aim of the agrarian reforms was to introduce some fundamental changes in the agrarian structure. The outworn and inegalitarian fabric that prevailed in pre-Independence India had resulted in an unequal distribution of income, wealth and disparities in the standard of living. Further, the programme was also curated to get rid of all traces of exploitation and social injustice within the agrarian system so as to ensure equality of status and opportunity to all sections of the rural population. Argo, the majority of the reformative laws aimed at cutting down the congregation of the freehold of agricultural land in hands of few landlords. The fundamental right to own property of a lot of people was affected and they rightly opted for legal action against the constitutionality of such laws.[4]

The independent judiciary put forth by the constitution took on itself to adjudicate on this matter, but before the Supreme court could come up with any kind of conclusionthe legislature amended the Constitution to fasten the execution of land reform legislation. Hence, the constitution was amended for the first time, just after seventeen months of its formation, to introduce Article 31-B into the constitution. It was done so with an objective to harmonise contradicting interests, by shaping individual rights along with social responsibility.[5]

Constitutionality

The constitutionality of the Ninth schedule has always been a highly contested topic. Many scholars of the subject have claimed that it acts as a stumbling block against the fundamental rights enshrined in the constitution. The property owners whose right to property was affected by this legislation filed suits in the courts of this country. One of the first major cases on the topic of land reforms was the Shankari Prasad case[6]. The pertinent questions concerning the Schedule were that, (a) the enactments in the Ninth Schedule became beyond challenge before a court of law, thus it deprives the courts of the power to examine the constitutionality of the Acts and thereby seeks to make changes in chapter 4 of Part V and Chapter 5 of Part VI of the Constitution.

Therefore, it required ratification under proviso to article 368 and the same was not done, so it was unconstitutional; (b) it was also argued that the provisions were unconstitutional because of enactments in the Ninth Schedule related to matters enumerated in List II of Seventh Schedule concerning which the state legislature and not Parliament had the power to make laws. The court, however, unanimously rejected both arguments against the constitutionality of Ninth Schedule. The constitutionality of the Ninth Schedule was again challenged in Sajjan Singh case.[7]

The points of castigation were the same as in the earlier case of Shankari Prasad. The court took the help of the principle of pith and substance in order to protect the constitutionality of the schedule. The court narrated the perspective due to which such provisions were incorporated into the constitution. It said that the provisions were brought in to assist the state legislatures to bring in much needed agrarian reforms. Hence, the application of pith and substance doctrine upheld the constitutionality of the schedule.

But a major turning point came on January 21, 2007, when the Supreme court held that it can strike down any law which is included in the Ninth Schedule, if, in its opinion, the law violates the basic structure of the Constitution and if it was inserted after April 24, 1973 (the day the Keshavananda Bharati judgment was delivered.) This judgement virtually repealed Article 31-B and undid what was done in 1951.[8]

Criticisms

From the beginning, the incorporation of the Ninth Schedule in the Constitution is contentious. It not only fabricates constitutional paradox but also legal contradictions. This proposition is backed by the fact that the constitution, on one hand, says that state should not formulate any law which abridges any of the rights bestowed by the Part III of the Constitution and on the other hand it says that the laws inconsistent with Part III cannot be challenged before a court of law if they are included in the Ninth Schedule. Hence, this provision of the Constitution, which provides complete blanket protection to state as well as the central laws against Fundamental Rights has been criticized by various authorities.[9]

Since the commencement, the Ninth Schedule has dilated constantly to the extent that it now harbors 257 acts within it. The main motive during the insertion of this schedule was to protect land reform legislation from judicial dissection and ensuing delay. But in due course, it has been expanded to contain laws which have nothing to do with not only land reforms but also fundamental rights and directive principles of state policy at large. It has become a tool to realise political gains. It enlists laws, most of which have no contemporary significance. It is safe to conclude that the ninth schedule has been converted to a repository which is used to keep specific laws in a dormant position. The lawmakers, at that point of time, considered the first amendment necessary with respect to the provisions of right to property in the constitution.[10]

During the initial phase of post-independence, things worked out as desired but thereafter proceeded in entirely different undesirable directions. The devotion and allegiance of the lawmakers disappeared gradually and judiciary persisted to cajole the legislature to make laws in favour of the underprivileged people of India.[11]As mentioned above, the judiciary had declared this constitutional amendment intra vires the Constitution even when it meant imposing a limitation on the principle of judicial review – an essential part of the basic structure of the Constitution.

Even if there were some kind of consternation with respect to its constitutionality, the judges of this country refrained from terming it unconstitutional, mainly because of the pious objective with which it was brought in.[12]The the objective of economic equality superseded any kind of legal objection. Unfortunately, the judiciary did not even halt the legislature when it incorporated various other objects in the Schedule which had no relation with the basic objective.

It even admired the obliteration of the right to property from the list of fundamental rights and its reincarnation as article 300-A, designated as a constitutional right. However, this admiration and invigoration by the judiciary were misinterpreted by the legislature and they construed it in a different tone and colour. They used, or rather misused it to satisfy their wicked motives. Starting from efforts to silence the fourth estate, to emancipate illegal mining, the dexterous lawmakers of this country did not hold back.[13]

Conclusion

From its inception, Article 31 -B along with the Ninth Schedule was put up as a constitutional device to safeguard land reform laws. It was instrumental because the laws were fundamentally impugned against fundamental rights.  The provisions were of significant importance at that point of time to redirect the existing federal system to a democratic modus operandi. But historical functioning of these provisions reveals that it has worked to its exhaustion and there seems no way in which it can help in ameliorating the implementation of land reform laws.[14]

Also now the right to property is no more a fundamental right. Since the primary objective of the Ninth Schedule was to protect land reform enactments from the onslaught of right to property as a fundamental right, there remains no justification for the existence of such protection. The schedule now contains statutes which do not correlate with the primary objective. Moreover, the contemporary judicial outlook to read directive principles, although not enforceable in the courts but fundamental in the governance of the country, in fundamental rights themselves is commendable and removes the barriers between Part III and Part IV of the Constitution.[15]

Furthermore, there is no sense of urgency left in the lawmakers of the present time as it was during the 1950s. Thus, the continued existence of the ninth schedule will be a Gordian knot, not a panacea. Hence, it may be concluded that the present changed and dynamic approach of the Indian judiciary does not warrant for its continued existence as an exception to the general democratic principle of judicial review. The arguments presented above put up a strong case for excision of ninth schedule from the constitution.

The January 11 judgement, to some extent did that. Although it was criticised from all quarters for being arbitrary and giving unbridled power to the judiciary, it was still a good step towards putting a system of checks and balance between the legislature and judiciary. But still, there is a scope of misuse of the schedule until it is completely rendered powerless. Hence, some more concrete steps are needed to be taken, be it from the legislature or the judiciary for complete excision of the ninth schedule from the constitution.

[1]Diganth Shehgal, Ninth Schedule, June 4, 2019, available at (https://blog.ipleaders.in/9th-schedule-indian-constitution-judicial-scrutiny/) (last visited on June 23, 2020)

[2]Sack, Peter. “LEGAL TECHNOLOGY AND QUEST FOR FRATERNITY: REFLECTIONS ON PREAMBLE OF INDIAN CONSTITUTION.” Journal of the Indian Law Institute, vol. 32, no. 3, 1990, pp. 294–308. JSTORhttp://www.jstor.org/stable/43952306. Accessed 23 June 2020.

[3]Pankaj Mishra, Regulating ninth schedule, November 27, 2006, available at https://economictimes.indiatimes.com/regulating-the-ninth-schedule/articleshow/589501.cms?from=mdr(last visited on June 23, 2020)

[4]Id

[5]Noorani, A. G. “Ninth Schedule and the Supreme Court.” Economic and Political Weekly, vol. 42, no. 9, 2007, pp. 731–734. JSTORhttp://www.jstor.org/stable/4419299. Accessed 23 June 2020.

[6]1951 AIR 458

[7]1965 AIR 845

[8]Indira Jaising, Ninth schedule, January 11, 2007, available at https://www.rediff.com/news/2007/jan/11indira.htm(last visited on June 23, 2020)

[9]Dodeja, Karishma D. “BELLING THE CAT: THE CURIOUS CASE OF THE NINTH SCHEDULE IN THE INDIAN CONSTITUTION.” National Law School of India Review, vol. 28, no. 1, 2016, pp. 1–17. JSTORhttp://www.jstor.org/stable/44283661. Accessed 23 June 2020.

[10]Madhav Khosla. “The Ninth Schedule Decision: Time to Define the Constitution’s Basic Structure.” Economic and Political Weekly, vol. 42, no. 31, 2007, pp. 3203–3204. JSTORhttp://www.jstor.org/stable/4419864. Accessed 23 June 2020.

[11]Id

[12]Shukla, Rakesh. “A Critical Look.” Economic and Political Weekly, vol. 42, no. 7, 2007, pp. 540–541. JSTORhttp://www.jstor.org/stable/4419245. Accessed 23 June 2020.

[13]Id

[14]Kumar, Virendra. “BASIC STRUCTURE OF THE INDIAN CONSTITUTION: DOCTRINE OF CONSTITUTIONALLY CONTROLLED GOVERNANCE [From Kesavananda Bharati to I.R. Coelho].” Journal of the Indian Law Institute, vol. 49, no. 3, 2007, pp. 365–398. JSTORhttp://www.jstor.org/stable/43952120. Accessed 23 June 2020.

[15]Sankaran, Kamala. “FROM BROODING OMNIPRESENCE TO CONCRETE TEXTUAL PROVISIONS: IR COELHO JUDGMENT AND BASIC STRUCTURE DOCTRINE.” Journal of the Indian Law Institute, vol. 49, no. 2, 2007, pp. 240–248. JSTORhttp://www.jstor.org/stable/43952108. Accessed 23 June 2020.

Pratyush Kumar Jena

Pratysuh is from Bhubaneswar, India. He is currently a first year student of B.A.LLB. at West Bengal National University of Juridical Sciences

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