Misuse of Ninth Schedule of Constitution of India

Zamindars in India have faced lot of issues after the Independence of India since the Property was taken slowly by the Government but it also conflicted with the Right to Property that was initially enshrined in the Constitution. Through Landmark cases like Sawney and Kesavananda Bharati, this article explores the intention and exploitation of the 9th schedule of the Indian Constitution.

A good Constitution must possess some fundamental limitations and restrictions on the powers to govern and legislate. The limitations and restrictions are direct or indirect, express or implied. A good Constitution must also provide for the power of judicial review over the Constitutional amendments and legislative Acts.[1] Judicial review scans the unconstitutional laws enacted by both Centre and State Legislatures and examines the action taken by the executive. Judicial review is a part and parcel of the principle of Constitutionalism. The principle of Constitutionalism is an antithesis of arbitrary rule and it imposes limitations on the exercise of governmental power in order to avoid usurpation or its tyrannous applications. Any law enacted either by the Parliament or State legislature must always confer an opportunity to the judiciary to test the laws, whether such laws are against to the common right and reason.[2]If such laws are not based on any reason and irrational, they shall be declared void. In India, suo motto power is not conferred on the judiciary to question the constitutional validity of laws passed by the legislatures. Such being the case, there should not be any scope under Constitution for excluding the power of judicial review even for special laws. Otherwise, it affects the principles of Constitutionalism which exist in Constitution of India and there may be a chance to abuse the same by so-called Parliamentarians.

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In addition to that, the Parliament occupies the supremacy, which Constitution is having. This happened in the Constitution of India in the Ninth Schedule which included some laws which are irrational, controversial, unscientific, illogical, unreasonable and no way related to land reforms also. (Example Tamil Nadu Reservation Act provides 69% reservation against to the mandate of Indra Sawhney’s case[3]). Thereby this Schedule confers unlimited power to the Parliament to make judiciary silent to question the constitutional validity of laws listed in the Ninth Schedule[4] by excluding the judicial review. Initially, land reforms laws were placed in the Schedule with the sole object of abolishing the Zamindari system, though they were violative of the right to property which was earlier considered as fundamental right. But thereafter, especially in Thirty-ninth and Fortieth Constitutional Amendments during Indira Gandhi’s period, Schedule was misused like anything by putting unrelated laws into the Ninth Schedule and it has become Constitutional Dustbin in the hands of legislatures.

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Ninth Schedule of Constitution

After freedom, zamindari abolition, and land change laws were passed as a move towards a more populist society, yet the Government endeavors of social building confronted a few issues, the land enactments were tested in the courts. The main case testing the land law was Kameshwar Singh v. State of Bihar[5], for this situation the Bihar Land Reforms Act 1950 was tested on the ground that the order of zamindars made for the reason for giving remuneration was unfair and prevented parallel assurance from claiming laws ensured to the native under Article 14 of the Constitution. The Patna High Court held this bit of enactment as violative of Article 14 as it characterized the zamindars with the end goal of installments of remuneration in an unfair way.

Article 31-B was embedded by the First Constitutional (Amendment) Act 1951 which expresses that without biased to the sweeping statement of the provisions contained in Article 31-A, none of the Acts and Regulations determined in the Ninth Schedule nor any of the provisions thereof might be considered to be void, or ever to have turned out to be void, on the ground that such Act, Regulation or provisions is conflicting with, or takes away or condenses any of the rights presented by, any provisions of this part, and despite any judgment, declaration or request of any court or tribunal in actuality, each of the said Acts and Regulations should, subject to the energy of any skilled assembly to revoke or alter it, proceed in compel.

The other element of Article 31-B is that it is the review in nature that is the point at which a statute is proclaimed unlawful by a court and later it is incorporated into the Ninth Schedule, it is to be considered as having been in that Schedule from its beginning. In this way, it gives cover assurance to all laws under the Schedule. If there should be an occurrence of Jeejeebhoy v. Asst. Authority[6], Thane, the Supreme Court held that Article 31-B speaks to novel, creative and exceptional procedure of alteration.

The method of reasoning for Article 31-B and the Ninth Schedule was to secure enactment managing property rights and no other sort of enactment. As of late, the Government is peering towards different disputable laws, for example, Delhi Sealing Law, the Kerala Self Financing College Law and so on in the Ninth Schedule. Till the time when Supreme Court choose Shankari Prasad[7] and Sajjan Singh[8] case, the Hon’ble Court’s view was incongruity and comparative with that of the Legislature. If there should arise an occurrence of Golaknath v. State of Punjab[9] the Apex Court took stricter view and held that if a revision abbreviated or took away essential rights ensured by Part III of the Constitution, the altering demonstration itself was void and ultra vires, at the end of the day, Parliament has no energy to correct or take away the major rights revered under Part III of the Constitution.

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Accordingly, in Keshvanand Bharti v. State of Kerala[10] the Supreme Court held that every one of the provisions of the Constitution can be corrected, yet the provision influencing the principal rights/fundamental structure of the Constitution couldn’t be changed; and if any Constitutional Amendment, which modifies the essential structure of the Constitution could be struck around the Court.

Again, if there should arise an occurrence of Waman Rao v. Union of India[11], the Supreme Court held that the revision to the Constitution which was made before April 24, 1973, and by which the Ninth Schedule to the Constitution was corrected every once in a while, by an expansion of different Acts and Regulations are substantial and sacred.

In I.R.Coelho v. State of Tamil Nadu[12], The Constitution seat of 5 judges alluded the case to higher seat to choose two inquiries which were not taken up by the Apex Court in Waman Rao’s case.

These inquiries which the 5 Judge Constitutional Bench alluded to higher seat to choose were as per the following:

  1. Regardless of whether an Act or Regulation which, or a piece of which, is or has been observed by the Supreme Court to be violative of any of the Articles 14, 19 and 31 can be incorporated into the Ninth Schedule.
  2. Regardless of whether it is just a Constitutional Amendment revising the Ninth Schedule that harms or demolishes the fundamental structure of the Constitution that can be struck down.

On January 11, 2007 while conveying the judgment the 9 Judge Constitutional Bench of the Supreme Court held that All revisions to the Constitution made on or after 24th April 1973 by which the Ninth Schedule is corrected by incorporation of different laws in that should must be tried on the touchstone of the fundamental or basic elements of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the standard basic them. To put it distinctively despite the fact that an Act is placed in the Ninth Schedule by a Constitutional Amendment, its provision would be interested in an assault on the ground that they demolish or harm the essential structure if the central right or rights is/are taken away or annulled relates or relate to the fundamental structure.

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The Supreme Court additionally expressed that if the legitimacy of any Ninth Schedule law has just been maintained by this Court, it would not be interested in test such law again on the standards announced by this judgment. Notwithstanding, if a law held to be violative of any rights in Part III of the Constitution is consequently consolidated in the Ninth Schedule after 24th April 1973, such a violation/infraction should be interested in challenge on the ground that it annihilates or harms the essential structure as demonstrated in Article 21 read with Article 14, Article 19, and the standards hidden thereunder.

Presently after the point of interest judgment of Supreme Court in I.R.Coelho[13] which was conveyed on January 11, 2007, it is currently all around settled rule that any law put under Ninth Schedule after April 23, 1973 are liable to examination of Court’s whether they abused basic rights and in this manner put the keep an eye on the misuse of the provision of the Ninth Schedule by the authoritative.

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[1] Dr. C.D.Jha’s ‘Judicial Review of Legislative Acts’, Second Edition, 2009, P. xxxiv

[2] Observation by Chief Justice Coke in Bonham’s Case (1610) 8 Co Rep 113 b: 77 ER 646.

[3] 1993 AIR 477 SC.

[4] Added by the Constitution (First Amendment) Act, 1951, sec.14.

[5] 1952 1 SCR 889.

[6] 1965 AIR 1096 : 1965 SCR (1) 636.

[7] AIR 1951 SC 455.

[8] 1965 AIR 845 : 1965 SCR (1) 933.

[9] 1967 AIR 1643 : 1967 SCR (2) 762.

[10] 1973 4 SCC 225.

[11] 1981 AIR 271 SC.

[12]Supra 5.

[13] Ibid.