The Notorious Case Of Ninth Schedule

By Areeb Uddin

“If I was asked to name any particular Article in the Constitution as the most important, it is Article 32 without which the Constitution would be a nullity- it would not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the house had realized its importance”. - B.R. Ambedkar

It’s been months now, that our fellow farmers are protesting against the farm bills, introduced by the Central Government this year. 23rd December, marks the occasion of ‘Kisan Divas’ or ‘Farmers Day’. On this day, the situation all around the country is very disturbed, most of our farmers, mostly from Punjab and Haryana are protesting against Farm bills, which is an attack on the Federal set-up and mainly it aims at the removal of Mandi system, MSP limit and many other issues which formulate the local mechanism. of the farmers. Whenever we refer to the land owners/farmers, then the Ninth Schedule has been an active participant, and it has been the favourite slot for the Parliament, as it is used to surpass the constitutional test's and especially Article 31B and 31C, which forms the base of the black schedule. Here, I will discuss how under the garb of ‘constitutional’ immunity, the fundamental rights are being taken away by this mechanism.

What is the Ninth Schedule?

The Indian Constitution is divided into 395 Article and 12 Schedules, which regulate the mechanism accordingly. The Ninth Schedule of the Constitution states that if any law is listed under the Ninth Schedule then it surpasses the judicial scrutiny. The reason which was laid down behind this idea was to promote agrarian reforms and abolish zamindari system, but apparently, the aim which was restricted to a class of ‘legislations’ has turned upside down. Now the schedule looks like an illegal ‘constitutional’ shelter, ironically Mr. Rajeev Dhavan had once referred it as a ‘Constitutional-dustbin’.

Article 31B:

Legal:

Without prejudice to the generality of the provisions contained in article 31A, 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, 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.]

Layman: It simply means that anything (Act of Parliament/legislation/Policy) which is contained under the Ninth Schedule is immune to scrutiny and it cannot be challenged only on the ground that it is against Part -III of the Indian Constitution.

Article 31C:

Legal:

Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing [all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by 5 [article 14 or article 19]; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

Layman:

It simply means that if a law/regulation is brought into force by the Parliament (by the word law, it is meant that whatever is included under Article 13) to promote the goals mentioned under Part IV - Directive Policies, would not be called into the frame of scrutiny. In cases where the State has brought into force such laws then this shield of ‘immunity’ can only be guaranteed when the said regulation has received the assent of the President.

The real intent behind Ninth Schedule

It is a settled proposition that the main intention behind introducing the Ninth Schedule was to prevent the land reform laws, for instance the Zamindari abolition and other statutes. Commenting on the objectives of the Ninth Schedule, Pt. J. Nehru once remarked that -- “If there is agrarian trouble and insecurity of land tenure nobody knows what is to happen. Therefore, these long arguments and these repeated appeals in courts are dangerous to the State, from the security point of view, from the food production point of view, and from the individual point of view, whether it is that of the zamindar or the tenant or any intermediary.” But the very next question is, whether we are projecting the same lines or the same objectives which were laid down by the Constituent Assembly? The answer is in negative for sure, because now the Schedule is a shelter for those laws which are politically motivated and dismantles the spirit of the ‘Basic structure doctrine’.

It was Sajjan Singh v. State, in which the validity was of Ninth schedule was questioned, but upholding its validity the court stated that it is the need of the hour to improve the condition and promote agrarian reforms. In the same order, Justice Mudholkar, concurring with the Chief Justice’s opinion, questioned that "It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of the Article 368?"

The Basic Structure ‘Bench’

In the Kesavananda Bharati case, there was split between the judges, one was in favour of the Basic structure doctrine and the other half was not. The interesting part was 29th amendment and its validity, which was taken forward by the bench in a different manner. Here’s an overview of the bench on how the amendment was upheld, the basic division was on the lines on subscribing the ‘basic structure doctrine’.

Upheld the 29th Amendment with the Basic structure doctrine:

Chief Justice. Sikri

Justice. Shelat

Justice. Grover

Justice. Hegde

Justice. Mukherjee

Justice. Reddy

Upheld the 29th Amendment without the Basic structure doctrine:

Justice. Ray

Justice. Phalekar

Justice. Mathew

Justice. Beg

Justice. Dwivedi

Justice. Chandrachud

(Justice Khanna, though upheld the 29th amendment and that too agreeing with the six judges who did not subscribe with the basic structure doctrine)

Justice Bhagwati, while dealing with the question on the validity of these amendments commented that the bench in Kesavananda never questioned these amendments and it was ultimately upheld by the bench, but the post - Kesavananda phase is very different and it was observed by him that: “But, all constitutional amendments made after the decision in Kesavananda Bharati case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending power."

The main argument which draws a line between rational and irrational is the object of the concerned amendment. As is was rightly observed in the Waman Rao case, J. Chandrachud had raised a very interesting contention and observed that:

“In the work-a-day civil law, it is said that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original : you cannot by an amendment transform the original into the opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law. What were the basic postulates of the Indian Constitution when it was enacted ? And does the 1st Amendment do violence to those postulates ? Can the Constitution as originally conceived and the amendment introduced by the 1st Amendment Act not endure in harmony or are they so incongruous that to seek to harmonise them will be like trying to fit a square peg into a round aperture ? Is the concept underlying Section 4 of the 1st Amendment an alien in the house of democracy ?-its invader and destroyer ? Does it damage or destroy the republican framework of the Constitution as originally devised and designed ?”

In the Kesavananda Case, Nani Palkhivala filed a rejoinder and rightly argued that Directive Principles were the ends of Government and fundamental rights were the permissible means to achieve those ends. I any democracy, there had to be a limitation on the exercise of power. In particular he attacked the new Article 31C (which was introduced back then) and stated that it was the forerunner of a totalitarian state.

The curious case of I.R. Coelho 

Whenever we refer to the Ninth Schedule, Article 31B and the amendments then referring to I.R. Coelho is very important, not because it questioned the immunity of Ninth Schedule but also it was in this case that the court cleared a path for judicial review within the shelter of Ninth Schedule. It was observed by the Supreme Court that:

“If Article 31B only provided restricted immunity and it seems that original intent was only to protect a limited number of laws, it would have been only exception to Part III and the basis for the initial upholding of the provision. However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is no longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise."

This observation is very relevant today, because the Ninth Schedule is being used to surpass the constitutional test in many cases. Reservations, Land ceilings, Mining activities and many other controversial activities are hiding under the garb of this black schedule. If the framers of the Constitution or the government who inserted it, had an intent to exceed the capacity of the schedule, it would have been expressly provided, it is because of this implied silence that no question can be raised. Another important issue which was touched in I.C Coelho was about ‘equitable distribution of wealth’ which was probably based on the idea of ‘welfare state’. It was observed by the court that:

“It is also contended for the respondents that Article 31A excludes judicial review of certain laws from the applications of Articles 14 and 19 and that Article 31A has been held to be not violative of the basic structure. The contention, therefore, is that exclusion of judicial review would not make the Ninth Schedule law invalid. We are not holding such law per se invalid but, examining the extent of the power which the Legislature will come to possess. Article 31A does not exclude uncatalogued number of laws from challenge on the basis of Part III. It provides for a standard by which laws stand excluded from Judicial Review. Likewise, Article 31C applies as a yardstick the criteria of sub-clauses (b) and (c) of Article 39 which refers to equitable distribution of resources. The fundamental rights have always enjoyed a special and privileged place in the Constitution. Economic growth and social equity are the two pillars of our Constitution which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism etc.”

Ultimately, the 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 principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

The road ahead

At present, there are many Acts/Legislation(s) which have been placed under the Ninth Schedule, as most of them are restricting land, mining and reservation policies. The courts have been acting as a crusader of fundamental rights, from time to time there have been decisions which state that ‘Article 31B is fine, but whatsoever will be going into the schedule would be open to challenge’, but neither the challenge is being taken up or nor the Acts are being restricted. In 2007, the Supreme Court, in a bench led by Chief Justice YK Sabharwal had rightly noted that "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."

At one side of the plate, the Constitution guarantees us the fundamental rights under Part - 3 and other the other side, these unreasonable restrictions in the form of such regressive provisions which blatantly contradicts the very own objective. There were people like , Prof. K.T. Shah who had initially opposed the idea of ‘Ninth Schedule’, also the same approach has been picked from the Irish Constitution, from Article 43(2) which states - “the State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.” But at the same time, it is very relevant to note that the situation of Ireland is very different from India, where the land is unequally divided. Hence, the courts should soon realize that mid-way interpretation would lead us to now where, and there might be circumstances when the Ninth Schedule would be flooded with another hundred legislation, which will surely defeat its sole purpose.

About the author: Areeb is a recent law graduate from Aligarh Muslim University. He can be reached out at: uddin.areeb@rediffmail.com