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 Vijay Pal Singh

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Introduction
After independence, zamindari abolition and land reforms laws were passed as a move towards more egalitarian society, but the Government efforts of social engineering faced several problems, the land legislations were challenged in the courts. The first case challenging the land law was Kameshwar Singh V State of Bihar , in this case the Bihar Land Reforms Act 1950 was challenged on the ground that the classification of zamindars made for the purpose for giving compensation was discriminatory and denied equal protection of laws guaranteed to the citizen under Article 14 of the Constitution. The Patna High Court held this piece of legislation as violative of Article 14 as it classified the zamindars for the purpose of payments of compensation in a discriminatory manner.

As a result of these judicial pronouncements, the Government got apprehensive that the whole agrarian reform programmes would be endangered. To ensure that agrarian reform legislation did not run into heavy weather, the legislature amended the Constitution in the year 1951 which inserted Ninth Schedule.

Article 31-B was inserted by the First Constitutional (Amendment) Act 1951 which states that without prejudiced to the generality of the provisions contained in Article 31-A, 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 provisions is inconsistent with, or takes away or abridges any of the rights conferred by , any provisions of this part, and notwithstanding any judgment , decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force. Thus Article 31-B of the Constitution of India ensured that any law in the Ninth Schedule could not be challenged in courts and Government can rationalize its programme of social engineering by reforming land and agrarian laws. In other words laws under Ninth Schedule are beyond the purview of judicial review even though they violate fundamental rights enshrined under part III of the Constitution. On the one hand considerable power was given to legislature under Article 31-B and on the other hand the power of judiciary was curtailed, this is the starting point of tussle between legislature and judiciary.

The other feature of Article 31-B is that it is retrospective in nature that is when a statute is declared unconstitutional by a court and later it is included in the Ninth Schedule, it is to be considered as having been in that Schedule from its commencement. Thus it provides blanket protection to all laws under the Schedule. In case of Jeejeebhoy V Asst. Collector, Thane, the Supreme Court held that Article 31-B represents novel, innovative and drastic technique of amendment. Legislative enactments are incorporated into the Constitution and immunized against all attacks on the grounds of breach of any of the Fundamental Rights. Since 1951, the Ninth Schedule has been expanded constantly so much that today 284 Acts are included therein. By the First Constitution (Amendment) Act, 1951 13 laws were added to the Ninth Schedule. It was again amended by Fourth Constitutional (Amendment) Act and six more Acts were added. By the 17th Amendment Act 44 laws were added. The Constitution 29th (Amendment) Act, 1972 added 20 more laws. In 1975, the Constitution 39th (Amendment) Act added 38 more laws. In 1976, the Constitution 42nd (amendment) Act further added 64 laws to the Ninth Schedule. The 47th Constitutional Amendment, 1984 added more laws and the number of Acts in the Ninth Schedule rose to 202. Again in 1990 the 66th Amendment Act inserted 55 Land Reforms Acts into the Schedule. The Constitutional 76th (Amendment) Acts 1994 has been passed by the Parliament to accommodate Tamil Nadu Government's Legislation in the Ninth Schedule to take the legislation out of the ambit of the judicial review, which provided 69 percent reservation for backward classes. The Constitutional 78th (Amendment) Act 1995 again amended the Ninth Schedule and added 27 Land Reforms Laws, taking the total number of Acts to 284.

The rationale for Article 31-B and the Ninth Schedule was to protect legislation dealing with property rights and not any other type of legislation. But, in practice, Article 31-B has been used to invoke protection for many laws not concerned with property rights in anyway. Article 31-B is thus being used beyond the socioeconomic purpose for which it was enacted. Recently the Government is eyeing to put various controversial laws such as Delhi Sealing Law, the Kerala Self Financing College Law and various others of similar laws in Ninth Schedule.

Till the time when Supreme Court decided Shankeri Prasad and Sajjan Singh case, 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 with in the Ninth Schedule also supported the faith of the Court on the statecraft of the leaders like Jawahar Lal Nehru and Lal Bhadur Shastri. However, the co-ordination between the judiciary and the legislature doesn't last for long, with the coming of Indra Gandhi in the Government, the power granted under 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 case of Golaknath V State of Punjab the Apex Court took stricter view and held that if an amendment abridged or took away a fundamental rights guaranteed by Part III of the Constitution, the amending act itself was void and ultravires, in other words, Parliament has no power to amend or take away the fundamental rights enshrined under Part III of the Constitution. Subsequently in Keshvanand Bharti V State of Kerala the Supreme Court held that all the provisions of the Constitution can be amended, but the provision affecting the fundamental rights / 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.

Again in case of Waman Rao V Union of India , the Supreme Court held that the amendment to the Constitution which was made before April 24 1973, and by which the Ninth Schedule to the Constitution was amended from time to time by addition of various Acts and Regulations are valid and constitutional. The Amendments of Ninth Schedule after April 24, 1973 are open to challenge on the ground that they are beyond the constituent power of the Parliament since they damage the basic structure of the Constitution. In other words the amendments made to Acts which are already placed in the Ninth Schedule are not automatically immunized from the legal challenged even after their inclusion in the Ninth Schedule, the protection of Article 31-B is only to those Acts which are included before April 24 1973.

In I.R.Coelho V State of Tamil Nadu , The Constitution bench of 5 judges referred the case to higher bench to decide two questions which were not taken up by the Apex Court in Waman Rao's case. These questions which the 5 Judge Constitutional Bench referred to higher bench to decide were as follows:

# Whether an Act or Regulation which, or a part of which, is or has been found by the Supreme Court to be violative of any of the Articles 14, 19 and 31 can be included in the Ninth Schedule;
# Whether it is only a Constitutional Amendment amending the Ninth Schedule that damages or destroys the basic structure of the Constitution that can be struck down.

On January 11 2007 while delivering the judgment the 9 Judge Constitutional Bench of the Supreme Court held that ?All amendments to the Constitution made on or after 24th April 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principle underlying them. To put it differently even though an Act is put in the Ninth Schedule by a Constitutional Amendment, its provision would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights is/are taken away or abrogated pertains or pertain to the basic structure?. The Supreme Court further stated that ?If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III of the Constitution 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 there under?.

Now after the landmark judgement of Supreme Court in I.R.Coelho which was delivered on January 11 2007 it is now well settled principle that any law placed under Ninth Schedule after April 23 1973 are subject to scrutiny of Court's if they violated fundamental rights and thus put the check on the misuse of the provision of the Ninth Schedule by the legislative.

Ninth Schedule
After independence, zamindari abolition and land reforms laws were passed as a move towards more egalitarian society, but the Government efforts of social engineering faced several problems, the land legislations were challenged in the courts. The first case challenging the land law was Kameshwar Singh V State of Bihar , in this case the Bihar Land Reforms Act 1950 was challenged on the ground that the classification of zamindars made for the purpose for giving compensation was discriminatory and denied equal protection of laws guaranteed to the citizen under Article 14 of the Constitution. The Patna High Court held this piece of legislation as violative of Article 14 as it classified the zamindars for the purpose of payments of compensation in a discriminatory manner.

As a result of these judicial pronouncements, the Government got apprehensive that the whole agrarian reform programmes would be endangered. To ensure that agrarian reform legislation did not run into heavy weather, the legislature amended the Constitution in the year 1951 which inserted Ninth Schedule.

Article 31-B was inserted by the First Constitutional (Amendment) Act 1951 which states that ?without prejudiced to the generality of the provisions contained in Article 31-A, 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 provisions is inconsistent with, or takes away or abridges any of the rights conferred by , any provisions of this part, and notwithstanding any judgment , decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force?. Thus Article 31-B of the Constitution of India ensured that any law in the Ninth Schedule could not be challenged in courts and Government can rationalize its programme of social engineering by reforming land and agrarian laws. In other words laws under Ninth Schedule are beyond the purview of judicial review even though they violate fundamental rights enshrined under part III of the Constitution. On the one hand considerable power was given to legislature under Article 31-B and on the other hand the power of judiciary was curtailed, this is the starting point of tussle between legislature and judiciary.

The other feature of Article 31-B is that it is retrospective in nature that is when a statute is declared unconstitutional by a court and later it is included in the Ninth Schedule, it is to be considered as having been in that Schedule from its commencement. Thus it provides blanket protection to all laws under the Schedule. In case of Jeejeebhoy V Asst. Collector, Thane, the Supreme Court held that Article 31-B represents novel, innovative and drastic technique of amendment. Legislative enactments are incorporated into the Constitution and immunized against all attacks on the grounds of breach of any of the Fundamental Rights.

Since 1951, the Ninth Schedule has been expanded constantly so much that today 284 Acts are included therein. By the First Constitution (Amendment) Act, 1951 13 laws were added to the Ninth Schedule. It was again amended by Fourth Constitutional (Amendment) Act and six more Acts were added. By the 17th Amendment Act 44 laws were added. The Constitution 29th (Amendment) Act, 1972 added 20 more laws. In 1975, the Constitution 39th (Amendment) Act added 38 more laws. In 1976, the Constitution 42nd (amendment) Act further added 64 laws to the Ninth Schedule. The 47th Constitutional Amendment, 1984 added more laws and the number of Acts in the Ninth Schedule rose to 202. Again in 1990 the 66th Amendment Act inserted 55 Land Reforms Acts into the Schedule. The Constitutional 76th (Amendment) Acts 1994 has been passed by the Parliament to accommodate Tamil Nadu Government's Legislation in the Ninth Schedule to take the legislation out of the ambit of the judicial review, which provided 69 percent reservation for backward classes. The Constitutional 78th (Amendment) Act 1995 again amended the Ninth Schedule and added 27 Land Reforms Laws, taking the total number of Acts to 284.

The rationale for Article 31-B and the Ninth Schedule was to protect legislation dealing with property rights and not any other type of legislation. But, in practice, Article 31-B has been used to invoke protection for many laws not concerned with property rights in anyway. Article 31-B is thus being used beyond the socioeconomic purpose for which it was enacted. Recently the Government is eyeing to put various controversial laws such as Delhi Sealing Law, the Kerala Self Financing College Law and various others of similar laws in Ninth Schedule. Till the time when Supreme Court decided Shankeri Prasad and Sajjan Singh case, 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 with in the Ninth Schedule also supported the faith of the Court on the statecraft of the leaders like Jawahar Lal Nehru and Lal Bhadur Shastri. However, the co-ordination between the judiciary and the legislature doesn't last for long, with the coming of Indra Gandhi in the Government, the power granted under 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 case of Golaknath V State of Punjab the Apex Court took stricter view and held that if an amendment abridged or took away a fundamental rights guaranteed by Part III of the Constitution, the amending act itself was void and ultravires, in other words, Parliament has no power to amend or take away the fundamental rights enshrined under Part III of the Constitution. Subsequently in Keshvanand Bharti V State of Kerala the Supreme Court held that all the provisions of the Constitution can be amended, but the provision affecting the fundamental rights / 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.

Again in case of Waman Rao V Union of India , the Supreme Court held that the amendment to the Constitution which was made before April 24 1973, and by which the Ninth Schedule to the Constitution was amended from time to time by addition of various Acts and Regulations are valid and constitutional. The Amendments of Ninth Schedule after April 24, 1973 are open to challenge on the ground that they are beyond the constituent power of the Parliament since they damage the basic structure of the Constitution. In other words the amendments made to Acts which are already placed in the Ninth Schedule are not automatically immunized from the legal challenged even after their inclusion in the Ninth Schedule, the protection of Article 31-B is only to those Acts which are included before April 24 1973.

In I.R.Coelho V State of Tamil Nadu , The Constitution bench of 5 judges referred the case to higher bench to decide two questions which were not taken up by the Apex Court in Waman Rao's case. These questions which the 5 Judge Constitutional Bench referred to higher bench to decide were as follows:

# Whether an Act or Regulation which, or a part of which, is or has been found by the Supreme Court to be violative of any of the Articles 14, 19 and 31 can be included in the Ninth Schedule;
# Whether it is only a Constitutional Amendment amending the Ninth Schedule that damages or destroys the basic structure of the Constitution that can be struck down.

On January 11 2007 while delivering the judgment the 9 Judge Constitutional Bench of the Supreme Court held that All amendments to the Constitution made on or after 24th April 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principle underlying them. To put it differently even though an Act is put in the Ninth Schedule by a Constitutional Amendment, its provision would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights is/are taken away or abrogated pertains or pertain to the basic structure. The Supreme Court further stated that If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III of the Constitution 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 there under.

Now after the landmark judgment of Supreme Court in I.R.Coelho which was delivered on January 11 2007 it is now well settled principle that any law placed under Ninth Schedule after April 23 1973 are subject to scrutiny of Court's if they violated fundamental rights and thus put the check on the misuse of the provision of the Ninth Schedule by the legislative.

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