Judicial Review vis-à-vis Ninth Schedule of the Indian Constitution

This Article is Written by Ishan Bhardwaj

Judicial review is one of the main features of democracy and protects the democratically elected government from being a dictatorial government. Judicial review and democracy are complimentary, if the state is not a democratic one from the beginning the judicial review will not be there and if there is no judicial review and independent judiciary then the spirit of the democracy will not be able to last long.

However there may be instances when some laws are against the principles of Grundnorm but are essential for development and maybe that law is liable to be struck down by the judiciary if it reviews it and for this purpose(to protect such laws that are essential for development from being struck down by the court ) the Parliament added Article 31B that was to be read with the Ninth Schedule to the Constitution by the Constitution (First Amendment) Act, 1951.

The reason why Article 31B was added was because Parliament wanted to validate some essential land reforms that were in some manner unconstitutional but were really essential for development. Another reason behind their addition was the difficulties that had arisen in regards to Article 31 ( which was by 44th amendment removed from the list of Fundamental Rights and was instituted s Article 300A). The exact words of Article 31B were :

Without prejudice to the generality of 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.¹

Using Article 31B and inserting any Statute in the Ninth Schedule is a mechanism by which Parliament can save any statute from any strike on the ground that it is in contradiction with Part III of the Constitution. Initially, there were 13 laws that were added to the Ninth Schedule. It was later amended by many amendments such as Fourth, Seventeenth, Twenty-ninth, Forty-fourth, Forty-seventh, Sixty-sixth, Seventy-Fifth Amendment and last one being the Constitution (seventy-eighth Amendment) Act, 1955 which took the number of statutes under Ninth Schedule to 284

Acts and Regulations added to the Ninth Schedule in a manner get immunity from judicial review no matter their content and that’s why many a times validity of the said article and schedule of the Indian Constitution has been challenged in the court of law.

First instance when validity of the Article 31B was challenged was in the case of Shankari Prasad v. Union of India² . The apex court a held that the word ‘Law’ as in Article 13(8) does not any include any constitutional amendment that has been passed by the Parliament in exercise of its constituent power and that in context of Article 13(8) the word ‘Law’ must be taken in reference to rules or regulations made by the parliament in exercise of its ordinary legislative powers . Further the court held that Article 31B of the Constitution is not invalid on the ground that it relates to a matter that is covered under the state list as it is a constitutional amendment and the power to amend Constitution rests with the Union Parliament only .

Then, there was the case of A.P. Krishnaswamy Naidu v. State of Madras³ in which the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 was challenged. The legislation was challenged on the ground that it was violative of fundamental rights contained in Article 14, 19 and 31(2) of the Constitution. The court accepted the argument and struck down the legislation.

Later, the legislation was added to the Ninth Schedule of the Constitution by the Constitution (Seventeenth Amendment) Act, 1964. After the act was inserted into Ninth Schedule it was challenged in the case of L. Jagannath v. Authorised Officer⁴ . Petitioner contended that the Act was non est and void ab initio as it had been declared invalid by the court in A.P. Krishnaswamy Naidu v. Union of India⁵ case and Article 31B could not validate it. The court held that defects of the Act were cured when it was inserted into the Ninth Schedule. The court said curing of such defects took place with retrospective effect from the date on which legislature put that Act in the statute book. The court also rejected the argument that the said Act had to be reenacted by the state legislature after it was put into the Ninth Schedule by way of Constitutional Amendment by the Parliament.

Then in the case of Keshavanand Bharti v. State of Kerela⁶ , the Supreme Court propounded the Basic Structure Doctrine and said that no amendment to the Constitution or any act passed by the Parliament shall be valid if it violates the basic structure of the Constitution.

Now after this case in Waman Rao v. Union of India⁷ the question was whether the decision of the apex court in Keshavanand Bharti case would be retrospective in effect or prospective in effect, the court held that its decision in the case of Keshavanand Bharti v. State of Kerela⁸ shall not have retrospective effect and all laws passed before that date shall stay valid and also said that amendments made to constitution by which the Ninth Schedule was amended, on or after the date on which the decision in the case of Keshavanand Bharti was given by Supreme Court shall be open to be challenged before the court on the ground that alter the Basic Structure of the Constitution. However, in Waman Rao case the Supreme Court did not clarify whether laws violative of Fundamental Rights could be included in the Ninth Schedule or not.

We must notice that the court in the case of Indira Nehru Gandhi v. Raj Narain⁹ held judicial review to be a part of the basic structure.

In the case of Prag Ice and Oil Mfg. Mills v. Union of India¹⁰, the petitioner questioned regarding the Union Government’s Mustard Oil (Price and Control) Order, 1977 under Section 3 of the Essential Commodities Act, 1955 which was there in the Ninth Schedule by virtue of it being added to the said Schedule by the Constitution (Fortieth Amendment) Act, 1976. It was asked from the court whether any Order or Notification issued under the exercise of power conferred by any Act that is there in the Ninth Schedule will have the same immunity as that Act or not .

The court said that the order did not have protection of the Ninth Schedule, the court said that giving such protection would be an unwarranted extension of Article 31B and such a protection was not justified. The reasoning given by the court behind its decision was that the Parliament was assumed to have applied its mind while adding any law to the Ninth Schedule but the same could not be assumed in case of any order passed under any law that has been included in the said schedule. The court said that if constitutional immunity is given to such orders by judicial interpretation then the fundamental rights would be eroded of their significant content. It was held that immunity of any act included in the Ninth Schedule cannot be proprio vigore be extended to its offspring such as the Mustard Oil (Price and Control) Order, 1977.

Then there was the case of I.R. Coelho v. State of Tamil Nadu¹¹which is also known as the Ninth Schedule case in this case the court was asked to decide the nature and character of protection provided by the Article 31B of the Constitution by reconsidering its decision in the Waman Rao v. Union of India.¹² The nine judge bench of the court held that if any law violates the basic structure doctrine, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule such law will be invalidated by the court in exercise of its power of judicial review.

The court said that validity of any law shall be tested on principles laid down in this case. The court upheld the view that validity of each constitutional amendment should be judged on its own merits. Court said that actual effect and impact of any law on fundamental rights has to be taken into account while determining whether that law destroys the basic structure or not. It was held that all constitutional amendments made on or after 24th April 1973 by which the Ninth Schedule is amended by adding various laws in it shall have to be tested on the touchstone of basic features of the Constitution as they are reflected in Article 21 read with Article 14, Article 19 and the principles underlying these provisions.

The court said that judicial review is a basic feature and there cannot be absolute immunity from judicial review in the name of Ninth Schedule. The court also said that validity of any Ninth Schedule law that has already been upheld by this court, would not be open to challenge on basis of principles laid down in this judgment. However, the court said that any actions taken and transactions finalized as a result of the impugned acts shall not be open to challenge before the court of law.

Conclusion:

The purpose of the Ninth Schedule of the Constitution was to protect certain laws primarily relating to land reforms that were essential for development , from being declared void by the judiciary. With time many laws have been added to the Ninth Schedule and some them have even been laws that had no relation to land reforms, we can say that in a manner it was used to bypass the judiciary . It was necessary for judiciary to lay down certain guidelines relating to Ninth Schedule and judicial review which was done in a very well manner by the judiciary.