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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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Ninth
Schedule
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author can be reached at: vijaypalsingh3@legalserviceindia.com /
