A critique of the Ninth Schedule vis a vis Article 31A-31B of the Constitution of India

Judiciary and the Legislature have been in a head to head battle in almost all constitutions. It comes down to being at loggerheads with Legal and political controversy and what ultimately prevails. 

It’s about coming out of the shackles of the limitations to establish the supremacy over the other institution. Both the institutions have been given a gargantuan task of upholding the values of the Constitution, Judiciary is a watchdog, that safeguards the constitution, whereas the Parliament because of the ever changing society come up with new laws and enactments keeping in mind the requirement of the people with the ever changing and ever growing technology. But over the period of time there has been some unspoken, unsettled friction between these two institutions. India and its governance has been rather peculiar post independence. The constitution makers tried to separate the powers of each institution - Judiciary, Executive and the Legislature as well as they could. 

Objectives of the Ninth Schedule.

The objectives and principles upon which the Ninth Schedule was initially introduced was primarily on land reforms and agrarian reforms and land acquisition to simply abolish Zamindari system , and bring about a homogenous socialist reform as seen in the congress government then. 

Since the land reform legislations directly impinged upon the Fundamental Right to property of the big land lords, this right proved to be the biggest obstacle in implementing land reforms. In order to remove such an obstacle and fulfill the above mentioned objectives, Art.31-B read with Ninth Schedule was incorporated under the provisions of the Constitution through First Amendment Act, 1951. Thus speaking truly and contextually, the singular objective “behind Art.31-B read with Ninth Schedule is to remove difficulties and not obliterate part III in its entirety or judicial review”.

Lets break this thread into fragments and understand the underlying principle on which the ninth schedule was initially formed and what led the government to make use of it arbitrarily and add laws in this schedule that are not in consonance of its principle and meaning. 

The danger lies in the idea of this schedule providing for any law in this schedule that’s implemented, and can infringe upon article 13 which protect the fundamental rights; however it’s not a discretionary power nor is it subject to interpretation. The sole reason for ninth schedule to implement any law which infringes upon the fundamental rights is only and only to safeguard the general population against zamindari system and property monopoly. It gives the state the right to demand a property for the general good with reasonable compensations attached to it. The only time a fundamental right can be infringed upon in this schedule is if it is in part or directly or indirectly in the trajectory of land acquisition. 

And hence no judicial review is to take place if the said article 13 is infringed upon. Its incumbent upon the state to ensure that there is a reasonable ground, there is a social reform, and that there is a land acquisition in question. It means its ultimately up to the state to decide on the land matters that need to be public. It however does not infer in any way that apart from land matters other laws not pertaining to property can be inserted in the said Schedule, which are not to go through the Judicial review. There are certain provisions from certain laws for example section 52a to 52g of the Insurance Act of 1938, specifically being inserted in 9th schedule. The question here is WHY? What is the government’s intent behind this move? 

The bigger question at large also arises as to, why are revenue related laws inserted in this schedule when this schedule is not to deal with them in any long or short form. Foreign exchange regulation Act shouldn’t be in the schedule 9, it’s beyond understanding and imagination that such blatant misuse of this schedule has taken place and the entire masses of the country are oblivious to this dangerous scheme that has eroded the constitutional authority and supremacy.

We have in the recent past seen the hullabaloo created over the Tamil Nadu reservation for backward classes and Schedule Tribes being inserted in the Ninth Schedule. Even when the Supreme Court has explicitly given its reasoning on the reservation percentage to not go beyond 50%. This act not only violates Ninth Schedule but also violates the Supreme Court judgments. 
I R Coelho to the relief of the constitution rectified this problem but only to the extent to whether or not this schedule is beyond judicial scrutiny. The Supreme Court judgments clearly asserted that nothing can go beyond scrutiny. However the point of contention in this judgment was only limited to ‘whether it infringes the basic structure of the constitution’.

It didn’t however clarity whether laws can be inserted in this schedule that are not related to land reforms and land acquisition as article 31 envisages only right to property and article 31 A and 31B are its part, there is a structural connection between these articles and it can be inferred, since article 31A and 31 B is mentioned right after Article 31 , it’s safe to assume that the idea behind the said article was on sole purpose of Land acquisition and Land reforms and in no way related to Motor vehicle act, Railways, Mercantile law, Insurance law and definitely not for Foreign exchange regulation act. Even though certain laws have been called of redundant, many jurists or judges would opine that since they are redundant and since now we can also have judicial scrutiny in the said schedule, it’s all fine, the question however remains, it’s the idea that the legislature has been allowed, and is open to insert any law through the Ninth Schedule even if it can goes under judicial scrutiny. Why the legislature should be allowed to by pass a law from judicial review and insert it in the ninth schedule if it is not related to a land matter per se.

The question on the intention of the government arises, the question of the loophole in the system that they have so conveniently used arises and the need to rectify this loophole if we are to uphold constitutional supremacy over parliamentary supremacy. Because ultimately it is the parliament that is for the constitution and not vice versa. If certain provisions of the said articles have a potential to prove to be detrimental in the smooth functioning of the government and if it has a potential to damage the constitution then it needs to do away with. 

Judiciary in its machinery has done a tremendous job in upholding the constitutional values and the judiciary’s heavy handedness in calling off any enactment from the legislature as redundant or unconstitutional without a degree of any remorse, it has done its job impeccably so far and rarely have we found a reproach against the Supreme Courts functioning. While the same could be said of the legislature but that hasn’t been the case as far as the Indian political system is concerned.

Because of the diversity in our country, it almost always results in some kind of an uncertainty and confusion and also in part of the ever changing governments constantly. While the new governments come in power, so come in the ideologies based on their varied party principles. 

Some want to bring social reforms, some advocate on welfare society, some wish for an establishment of communism, some wish to steer the ship in a way of absolute democracy. We know that achieving this feat is not only difficult it’s also borderline impossible. Five years is rather a short time to take over and undo what’s been done in the government previously and while moving forward implementing contrasting laws.

So long as these laws based on social reforms, welfare, ideologies do not hinder or create an obstacle or in fact shake the foundations of the constitution, Judiciary has allowed as has the constitution to make the changes. 

Another question however arises, not all governments lack scruples and not all governments are competent. The legislature wishes to achieve supremacy in some decision making while implementing laws which may not go down too well with the Judiciary as Judiciary takes it upon itself to be a guardian of the constitution.

Such is a peculiar case of the Ninth Schedule which haunts us to this date as to who really has supremacy over the other. The Ninth Schedule simply tells us that there would be certain laws that are apart of Judicial Review which was made redundant in the landmark case of I.R.Coelho V. State of Tamil Nadu AIR 2007 SC 861.

Definition of Agricultural Reforms.

In order for us to understand the inception of 9th Schedule, we will go back in History and ascertain its significance and requirement as opposed to its significance now and its relevance and whether or not it is playing a role in the societal development or political development and if so, why do we have questionable laws enacted under this Schedule that are so questionable that they are borderline, blatant and shamelessly providing immunity to the legislature without any Judicial Review which in part is the basic structure of the constitution. 

We will also see in this paradigm, what land reform comprises: increased access to land by the rural poor and secured tenure for those who actually work the land, Small cultivators should obtain greater control over the use of land and better terms in their relationships with the rest of society. Agrarian reform, then, constitutes widespread redistribution of land. It aims to empower poor peasants and to alter the agrarian and class structure of rural society. Some argue that agrarian reform is therefore a revolutionary political concept rather than a reformist one. The classic definitions of agrarian and land reform belong to the ‘moment’ of developmental states. Particularly after the Second World War and decolonization, it was assumed that the state and state policy could be a motor of development and societal restructuring. Agrarian reforms are one example of such develop mentalist policies. The assumption was that the state would provide support services, and that redistribution of income and property would provide overall social benefits.

Inspiration for the Ninth Schedule

The external inspiration for the Ninth Schedule came from Ireland, where land had been unevenly distributed. Art.43 (2) of the Irish Constitution stated that the exercise of the right on land should be regulated by the principles of social 44 justices. Dr. B.R. Ambedkar explained to the House, the Irish law had appointed a separate board with the power to acquire land, to break up holdings, to equalize land, and to make uneconomic holdings economic ones by taking land from a neighboring owner, and the right to assign compensation was given to this board.

Provision- After Art.31 of the Constitution the following Articles shall be inserted, and shall be deemed always to have been inserted, namely Arts.31-A20 and 31-B.21 No doubt these two Articles are exception to Art.13 of the Constitution.22 Though the laws enacted by the legislature under Arts.31-A and 31-B contravene the Fundamental Rights recognized under part III of the Constitution, it is necessary to make those laws which are constitutionally valid, in order to give effect to the agrarian reforms and to establish egalitarian society. Art.31-B operates to immunize législations from challenge on the grounds that they violate Fundamental Rights. Furthermore, it acts retrospectively to confer laws inconsistent with or in derogation of the fundamental rights, not concerned as far as Art.31-B is concerned.

On a plain reading, this seems a rather drastic provision- several members of Parliament who opposed the First Amendment criticized it as undemocratic, on the grounds that it eradicates the judicial review of laws as against the provisions of Part III. Art.31-B24 has to be read with the Ninth Schedule because it is only those Acts and regulations which are put in that Schedule that can receive the protection of that article. This Schedule was added under section 14 of the First Amendment Act 1951. According to this Section 5 and 14 of the said Act, as and when Acts and Regulations are put into the Ninth Schedule by constitutional amendment made from time to time, they will automatically by the reason of the provisions of Art.31-B, receive the protection of that Article.

The kind of laws which are entitled to protection under Art.31-B are also necessarily entitled to protection under Art.31-A, although there may be many laws under Art.31-A which are not covered by Art.31-B i.e. which are not included in the Ninth Schedule. In fact, there would be no purpose in providing that Art.31-B does not detract from the generality of Art.31-A u|nless their subject matters overlapped.

Also, the fact that there exist many laws in the Ninth Schedule unrelated to Art.31-A is indicative, not of the correct use of Art.31-B, but of its blatant misuse. Therefore, it is submitted that Art.31-B should be interpreted as above, so as to render unconstitutional any additions to the Ninth Schedule which are not covered by Art.31-A.48. Therefore, it is submitted that Art.31-B should be interpreted as above, so as to render unconstitutional any additions to the Ninth Schedule which are not covered by Art.31-A.

From the context of Art.31-B it is put under the heading of right to property immediately after Arts.31 and 31-A, and its opening words are “without prejudicing the generality of the provisions contained in Art.31-A” – it could plausibly be assumed that Art.31-B was meant to protect legislation dealing with property rights and not any other type of legislation. But, in practice, Art.31-B has been use to invoke protection for many laws not concerned with property rights at all. Art. 31-B is thus being used beyond the socio- economic purposes which was its only justification of inception.

This is a clear indication of how an act should be enacted in consonance of 31A “without the prejudice to its generality” can be inferred this way and hence we can come to the conclusion that in so far the 31B is concerned it has to be in consonance to a degree with 31A, however we can see plenty of laws having been enacted without the consonance and with prejudice to the generality of article 31A being inserted in 31 B. 

We cannot divert or digress from the main principle upon which both the articles stand- Land reforms with regard to upliftment of the agrarian society. 

Some questions that arise out of Enactments in the Ninth Schedule, Redundant or not.

1. FERA 1973.
2. 66A and Chapter IV –Motor Vehicles Act 1938.
3. The smugglers & Foreign Exchange Manipulators Act.
4. Conservation of Foreign Exchange & Prevention of Smuggling.
5. Section 52A-52G-The Insurance Act 1938.
6. Tamil Nadu Backward classes 1994 and many more.

The Supreme Court Judgment and the Ninth Schedule:

In a landmark ruling on 11 January 2007, the Supreme Court of India ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution. Chief Justice of India, Yogesh Kumar Sabharwal noted, “If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting in violation of the basic structure of the constitution, such laws need to be invalidated.”

The Schedule was not envisaged by our founding fathers at all. In fact, it owes its birth to ideological battles in the nascent republic between the progressive executive and legislature on the one hand and the conservative judiciary on the other.

According to the provision of Art.31-B, “none of the laws specified in the Ninth Schedule shall be deemed to be void on the ground that it was inconsistent with any of the Fundamental Rights, notwithstanding any judgments, decree or order of any court or tribunal to the contrary.”

This meant that the laws put in the Ninth Schedule were not subject to judicial review. The justification offered was Godavari Sugar Mills v. S.B Kamble, AIR 1975 SC 1193, that Courts should not be allowed to get in the way of socialist policies such as land reforms. As mentioned earlier Art.31-B, which gives blanket protection to all items in the Ninth Schedule, is also retrospective in nature. So, even if a statute which has already been declared unconstitutional by a court of law is included with in the Schedule, it is deemed to be constitutionally valid from the date of its inception. In short, the judicial decision is nullified when the statute is included in the Schedule. Any Act incorporated in the Schedule becomes fully protected against any challenge in a Court of law and any Fundamental Rights. The Ninth Schedule was drafted by the Nehru government in 1951. It emanates from Art.31-A and 31-B which were introduced by the Constitution (First Amendment) Act, 1951, with effect from June 18, 1951 ensure certain laws were valid even if it violated the fundamental rights of citizen.

Thus, initially only thirteen State Acts were put beyond any challenge in courts for contravention of Fundamental Rights. But Schedule Nine has blown up in course of time as all kinds of statutes have been included therein to protect them from judicial review so much so that today the Schedule contains as many as 284 entries. In 1978, Entries 87, 92 and 130 respectively relating to the Representation of Peoples Act, 1978 and Election Laws (Amendment) Act, 1975 and Maintenance of Internal Security Act and Prevention of Publication of Objectionable Matters, Act 1976 were omitted by the Constitution (Forty Fourth Amendment) Act, 1978, Sec. 44. Fourteen Land Reforms Acts, passed in various States were included in the Ninth Schedule of the Constitution by the (Forty Seventh Amendment) Act, 1984. Then, the Constitution (Sixty – Sixth Amendment) Act, 1990, Sec. 2 added Fifty Four Land Reforms Acts which lifts the score to 257. Entry 257-A was inserted by the Constitution (Seventy Sixth Amendment) Act, 1994 relating to the Act passed by the State of Tamil Nadu providing 69% reservation for Backward Classes, Scheduled Casts and Scheduled Tribes in Educational Institutions and Appointment as Posts in State Services 40 (1973) 4 SCC 225. 53 (Contrary to the Supreme Court’s Judgments’ in Indra Sawhney’s Case fixing ceiling of 50% reservation of all categories put together), was inserted into the Ninth Schedule against the original objective of Art.31-B and Ninth Schedule of confining it to land reforms legislations. 

Thereafter, 27 Land Reform Laws (Entries 258 to 284) were inserted in the Ninth Schedule by the Constitution (Seventy – Eighth Amendment) Act, 1995, Sec. 2, which finally makes a ‘king size’ Ninth Schedule containing 284 legislations receiving protection under Ninth Schedule from the judicial scrutiny. Then, this process has stopped because the Ninth Schedule threatened to become longer than Constitution, itself and offered to absorb all legislations which might be questioned. It is argued here that a correct interpretation of the language of Art.31-B can effectively end this problem. Indra Sawhney v. Union of India (Mandal case) 1993 S.C.Arts.31-A (1) and 31-B are intended to operate as protections against consequences which could otherwise mean breach of Constitution. Legislation falling under any part of Art.31-A (1), including the provisions, can also receive protection under Art.31-B. If conditions of either article are satisfied, there is no bar to a legislation receiving double protection. In this connection, to know further about relationship between Arts.31-A and 31-B, Prof. A.R. Blackshield’s observation is relevant for the discussion. He considered the opening words of Art.31-B (Without prejudice to the generality of the provisions contained in Art.31-A) as structural interconnection between Arts.31-A and 31-B. That gives rise to an inference that Art.31-B read with Ninth Schedule is particularization of Art.31-A itself. The scope of Art.31-B is wider in nature than Art.31-A, as Art 31-A is limited to property related laws and regulations, Art.31-B not only stand independent of Art.31-A, but will also validate a law if it contravenes the provisions of Art.31-A. 

The protection of Art.31-B extends to the Act as it stood on the date of its inclusion in Ninth Schedule. It means that, the protection would not apply to the Act after the inclusion within the Schedule. The reason for this is, while the inclusion of an Act requires an exercise of the amending powers of Parliament, an amendment to the Act can be made by ordinary legislative process. Thus, it can be said that, wide range of powers are given to the legislature under Art.31-B. No review of policies and principles enshrined within the State laws could ever be or were ever inspected by the Courts. Since 1951, the Ninth Schedule has been expanded constantly so much so that today 284 Acts are included therein. From the context of Art.31-B it is put under the heading of right to property immediately after Arts.31 and 31-A, and its opening words are “without prejudicing the generality of the provisions contained in Art.31-A” – it could plausibly be assumed that Art.31-B was meant to protect legislation dealing with property rights and not any other type of legislation. But, in practice, Art.31-B has been use to invoke protection for many laws not concerned with property rights at all. Art. 31-B is thus being used beyond the socio- economic purposes which were its only justification If Art.31-B 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. It’s about time we concerned ourselves with some critical issues of the country such as this, and ponder over enactments of the Legislature rather than the Legislature itself.