Copyright © 2021 - Ex Gratia Law Journal

Ninth Schedule: Why Immunise Certain Laws from Judicial Review?

INTRODUCTION

To every student of constitutional law, Art 13 and Art 31-B appears paradoxical. The former forbids the state from making laws infringing fundamental rights and declares that any law made in contravention of this clause shall, to the extent of the contravention, be void. In contrast, the latter states that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed to be void, or ever to have become void, on the ground that they are inconsistent with, or abridge any of the rights conferred by any provisions of this Part.

The Ninth Schedule makes certain legislative actions completely immunised from judicial review. What is the need or intention of the lawmakers to protect laws from judicial review?

THE NATURE OF NINTH SCHEDULE

The Ninth Schedule has the effect of nullifying the judicial pronouncements that declared certain laws void, as they are inconsistent with Part III. This has effect both prospectively as well as retrospectively. It is applicable to both pre and post independence laws. Art 31-B protects the acts and regulations in the Ninth Schedule.  Art 31-B is not illustrative of Art 31 -A[1]. The laws currently in the Ninth Schedule can be categorized into:

  • Laws Relating to Agrarian/Land
  • Laws Relating Industrial Development
  • Laws Relating to Economic Offences
  • Laws Relating to Social Welfare
  • Laws Relating to Elections and Press, and
  • Miscellaneous Laws

HISTORICAL ORIGIN OF THE SCHEDULE:

Due to the colonial rule, land and wealth was concentrated in the hands of a few landlords while others lived on meager terms.[2] To bring about a social order based on justice and equality, agrarian reforms were introduced. These reforms were in clash with the right to property[3] of the landlords, who filed cases in the courts challenging the reforms. The legislature then introduced the Ninth Schedule and included the 13 agrarian reforms in it. This was in order to protect them from being questioned in courts. The reason stated was to be the individual interests of the landlords, upholding of social good was imminent.

While moving the Bill to the Ninth Schedule, the then Prime Minister Jawaharlal Nehru said:

“This Bill is not a very complicated one; nor is it a big one. Nevertheless, I need hardly point out that it is of intrinsic and great importance.”[4]

IMPORTANCE AND NECESSITY OF NINTH SCHEDULE:

Our constitution is a social document.[5] It aims at common good. The Constitution lays down that our nation’s policy should be built on certain fundamental values – reflected in the fundamental rights and the directive principles, which can be described as the soul of the constitution and the testament of the framers. The goals of the nation are enshrined in the directive principles of state policy in Part IV of the Constitution. These directives cannot be less significant than the fundamental rights of the individual. The whole idea is to achieve the goals in Part IV while protecting the fundamental rights of the individual in Part III.

However, at certain times, this is not possible. When one looks at the socio-economic goals of our nation, it involves satisfying extremes, poor and rich, upper castes and lower castes, man who has it all and the man who struggles to surpass the day. When aiming to achieve these goals, certain fundamental rights of an individual can be sacrificed, if it is not a big shocking betrayal to the imminent ideals of the constitution. 

In furtherance of the constitutional goal and promise, Art. 31-B seeks to save certain specific laws from the operation of Part III. The Supreme Court while commenting on the Ninth Schedule held that it is fundamental that the constitution is not kept in constant uncertainty by judicial review every season, because it paralyses all legislative and administrative action on vital issues.[6] This excerpt from the judgment clearly emphasizes the need for the Ninth Schedule.

MISUSE OF NINTH SCHEDULE, WITH SPECIAL REFERENCE TO ‘THE EMERGENCY’

Looking back, at times, the Ninth Schedule has lost its focus and stepped away from its original intent. It has been misused by people in power to achieve their personal passionate aims and has had no relation with Part IV. For any Indian, the emergency period, called by Indira Gandhi was a dark period in Indian democracy. It is significant to note that the Ninth Schedule played a crucial role in this emergency.

In 1975, the Allahabad High Court declared the election of Prime Minister Indira Gandhi void[7] on the petition of Raj Narain under the provisions of the said legislation. This decision led to the 39th Amendment Act. The Representation of the People Act was amended to overshadow all the legal provisions that found Indira Gandhi guilty and the same was placed in the Ninth Schedule along with the new provisions. Hence, the object of the 39th Amendment was to anyhow validate the election of the Prime Minister Indira Gandhi, purely for political motives. The Representation of People Act has no relation with Part IV of the Constitution and was alien to the culture of the Ninth Schedule.

CONSTITUTIONALITY

The constitutionality of the Ninth Schedule came up before the Supreme Court just after its insertion in the Constitution of India, in the Shankari Prasad case[8]. It was argued that it deprives the courts of the power to examine the constitutionality of the Acts once placed within. The second argument was that the Ninth Schedule was unconstitutional because enactments in the Ninth Schedule related to matters enumerated in List II of the Seventh Schedule with respect to which the state legislature and not the Parliament had the power to make laws. The court held that Article 31-Band the Ninth Schedule will not affect powers of the courts to issue writs or entertain appeals, and that they will remain just the same and only a certain class of cases had been excluded from the purview of Part III and the courts. Further, the provisions were essentially amendments of the Constitution and the Parliament alone had power to do so.

The same was subsequently questioned in Sajjan Singh case[9] and again in the Golak Nath case[10]. In all of which, the constitutionality of the Ninth Schedule was upheld.

In the famous Kesavanand Bharati case[11], the court unanimously held that the Ninth Schedule was valid as it has been valid since it was enacted. It held that the parliament’s power of constitutional amendment extends to every article of the Constitution including the Fundamental Rights, but it could not extend to the destruction of the ‘basic features’ of the Constitution.

In subsequent cases, such as the Minerva Mills[12], Waman Rao[13], Bhim Singh[14] and Attorney General for India[15] cases, the constitutionality of the Ninth Schedule was upheld but the Schedule was specifically made subject to the doctrine of basic features or basic structure of the Constitution. In this way, the judiciary has upheld the constitutionality of the schedule time and again.

CONFUSION IN THE TEST OF BASIC FEATURES OF THE CONSTITUTION

The only test for judging the validity of inclusion of laws in the Ninth Schedule is the basic structure test. A law will be declared void if it is inconsistent with the fundamental rights given under Part III. This law is then placed inside the Ninth Schedule and is out of the reach of judicial review. Now, this law is in cross with fundamental rights and judicial review, both of which are a part of basic structure, as stated by the Minerva Mills judgment.[16] Can we say that the basic structure is thus infringed, and so it cannot be placed in Ninth Schedule as it is void?

This paradox is once again clarified in various judgments of the Supreme Court. The correct legal position is that any constitutional amendment even if it were to infringe the fundamental rights, it is not ipso facto unconstitutional, unless it damages the basic structure. It was never held the fundamental rights are not a part of the basic structure. But whether the basic structure is destroyed or not depends on the place of the right in the constitution, whether it is a shocking betrayal of its quintessence and the effect of its denial on the integrity and identity of the constitution.

The statement that a law curtailing fundamental rights, being placed in the Ninth Schedule will fall outside judicial scrutiny is false after the Kesavananda Bharathi[17] and Waman Rao[18] judgments. Judicial review is still available on the basis of destruction of the basic structure.

CONCLUSION

As one looks back at the history of the Ninth Schedule, one can realise that at many times, the purpose and objective of the constitution would have been delayed and defeated if not for the First Amendment. But on certain other pages of its history, it has blots of political misuse and outright betrayals of the Constitution. Such blots have made the apex court to not only declare that laws violating the basic structure cannot be ‘ninth-scheduled’, but also to interpret the basic structure in such a way so as to enable it to invalidate laws that do violent damage to a fundamental right.


[1] N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana, 1965 AIR 1096.

[2] DADA BHAI NAROJI, POVERTY AND UN-BRITISH RULE IN INDIA 34 (Swan Sonnenschein & Co., Ltd., London, 1901).

[3] INDIA CONST. art. 19, § (i), cl. (f). (Now repealed).

[4] VOLS. XII-XIII, PT. II, PARLIAMENTARY DEBATES 8814 (1951).

[5] GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 50 (1966).

[6] Ambika Prasad Mishra v. State of Uttar Pradesh & Ors., 1980 AIR 1762.

[7] Raj Narain v. Smt. Indira Nehru Gandhi, 1972 AIR 1302.

[8] Sankari Prasad Singh Deo v. Union of India, 1951 AIR 458.

[9] Sajjan Singh v. State of Rajasthan, 1965 AIR 845.

[10] Golak Nath v. State of Punjab, 1967 AIR 1643.

[11] Kesavanand Bharti v. State of Kerala, AIR 1973 SC 1461.

[12] Minerva Mills v. Union of India, AIR 1980 SC 1789.

[13] Waman Rao v. Union of India, AIR 1981 SC 271.

[14] Bhim Singh v. Union of India, AIR 1981 SC 234.

[15] Attorney General for India v. Amrit Lal Prajivandus, (1994) 5 SCC 54.

[16] Id at 12.

[17] Id at 11.

[18] Id at 13.


Cite this article (The Bluebook 20th ed.)-

Sindhanaa Andavan, Ninth Schedule: Why Immunise Certain Laws from Judicial Review?, Ex Gratia Law Journal, (December 1, 2020), https://exgratialawjournal.in/journal/volume-1/vol1-issue3-dec2020/ninth-schedule-why-immunise-certain-laws-from-judicial-review-by-sindhanaa-andavan/.

Print Friendly, PDF & Email

Author

Sindhanaa Andavan
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.