The Ninth Schedule contains a list of central and state laws which cannot be challenged in courts. Currently, 284 such laws are shielded from judicial review. 9th schedule is Often in news as it is ever relevant because of the reasons like , a.it is inserted by very 1st amendment of the constitution of India, b. it gives primacy to directive principles over fundamental rights c. It limits the authority of the judiciary w.r.t certain acts mentioned in the 9th Schedule of the constitution.
While originally most of the laws protected under the Schedule concern agriculture/land issues, the list includes other subjects, such as reservation. A Tamil Nadu law that provides 69 per cent reservation in the state is part of the Schedule. Many recent reservation agitations by dominant castes demanding reservation want their quota to be included in the 9th schedule on lines of the 76th constitutional amendment that put Tamilnadu reservation in the 9th schedule to protect them from scrutiny by the Judiciary.
What is the 9th schedule? It is being said that "Ours is the only constitution in the world which carries a long list of laws which it would protects against itself."
First amendment to the constitution (1951) is no exception to this. The First Amendment was brought in by the government to protect laws related to agrarian reform and for abolishing the Zamindari system , it amended laws related to Fundamental Rights and also several other matters.
Two new articles Article 41A (in the list of directive principles) and Article 31B ( in list of Fundamental Rights) were added and a new Ninth Schedule was also added.
Article 31B also has a retrospective operation which means that if laws are inserted in the Ninth Schedule after they are declared unconstitutional, they are considered to have been in the Schedule since their commencement, and thus valid. As mentioned above, articles amended amongst Fundamental Rights were Article 31A and Article 31B. Article 31A protected estate laws from challenges based on violation of fundamental rights. Article 31B was newly inserted which said that none of the Acts and Regulations specified in the Ninth Schedule shall be deemed to be void if it is inconsistent with Fundamental Rights.
Important feature of the amendment was that the 9th
schedule was kept completely outside the scope of judicial review.
The Ninth Schedule, which initially consisted of 13 Acts and Regulations now comprises 284 Acts, out of which almost 218 were inserted after 24th April, 1973(Mark this date).
Various judgements regarding 9th Schedule:
1.In Shankeri Prasad v union of India and Sajjan Singh v state of Rajasthan case, the Hon'ble Court's view was in conformity and similar with that of the Legislature. The Supreme Court viewed that the radical agrarian reform was necessary to curb down the menace of poverty and change the system of unequal distribution of land holdings in the countryside.
However, the co-ordination between the judiciary and the legislature doesn't last for long, as in the 1970s legislature was widely perceived as misusing power granted under Article 31-B to achieve their political ends. This provoked the judiciary to control the enhanced legislative power of the legislature.
2.In case of Golaknath Vs State of Punjab the Apex Court took a stricter view and held that Parliament has no power to amend or take away the fundamental rights enshrined under Part III of the Constitution.
3.Subsequently in Keshvanand Bharti V State of Kerala the Supreme Court held that all the provisions of the Constitution can be amended, but the provision affecting the fundamental rights that are part of basic structure of the Constitution could not be amended; and if any Constitutional Amendment, which alters the basic structure of the Constitution could be struck down by the Court. The basic structure includes sovereign, democratic, secular characters and separation of powers and supremacy of the Constitution.(Judgement given on April 24 1973).
4.Again in case of Waman Rao V Union of India , the Supreme Court held that The Amendments of Ninth Schedule which were made before April 24 1973 are valid and constitutional. The Amendments of Ninth Schedule after April 24, 1973 are open to challenge on the ground that they are beyond the constituent power of the Parliament since they damage the basic structure.
5. Most important case related to the power of Judicial Review w.r.t the 9th schedule is I.R.Coelho V State of Tamil Nadu case. In this case, 9 Judge Constitutional Bench of the Supreme Court was set up to decide two questions which were not taken up by the Apex Court in Waman Rao's case.
These questions were:
a.Whether an Act violative of any of the Articles 14, 19 and 31 can be included in the Ninth Schedule;
b.Whether it is only a Constitutional Amendment amending the Ninth Schedule that damages or destroys the basic structure of the Constitution can be struck down.
On January 11 2007 while delivering the judgment the 9 Judge Constitutional Bench of the Supreme Court held that in case of amendments to the Constitution (in the Ninth Schedule) made on or after 24th April 1973, its provision would be open to attack on the ground that they destroy or damage the basic structure and/or violative of the Fundamental rights.
Conclusion:
Now after the landmark judgement of Supreme Court in I.R.Coelho it is now well settled principle that any law placed under Ninth Schedule on or after 24th April 1973, is subject to Judicial Review if it violated fundamental rights and thus judiciary put the check on the misuse of the provision of the Ninth Schedule by the legislative.
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