Thursday, February 15, 2018

Ninth Schedule of Indian Constitution & IR Coelho Case

Ninth Schedule of the Indian Constitution was enacted in 1951 to save the laws made by the government from the scrutiny of the judiciary.

Ninth Schedule of the Indian Constitution was brought in through the 1st Amendment Act 1951 along with Article 31B of Indian Constitution.

The utility of Article 31B of Indian Constitution is that it saves acts and regulations included in Ninth Schedule of the Constitution from Judicial scrutiny.

This Ninth Schedule was important specially in post-independence era as laws relating to land reforms/abolition of Zamindari system and other such laws which aimed at bringing social equity were included in it.

The government was very much active to bring in Nationalization of land assets, taking away excess of land from the Zamindars and providing them to economically and socially oppressed.

However this was very much clear that these laws will be nullified by the Judiciary as at that point of time these were laws were in direct contravention of the Constitutional text.

So the government bought in Article 31a and 31b of the Constitution which allowed the government to such legislations from judicial scrutiny.

However Ninth Schedule in a matter of time became an arena of excesses of the Legislature in the following manner - 

Since the First Amendment, the Ninth Schedule has been relied upon to amend the constitution multiple times over. The 4th amendment inserted six acts to the 9th schedule. The 17th amendment added 44 more acts. The 29th amendment brought in 2 acts from Kerala. The 34th amendment in 1974 added 20 more land tenure and land reforms laws enacted by the states.

In 1975, Indira Gandhi’s infamous abuse of executive power leading up to emergency saw the 39th amendment adding cer­tain central enactments. 1976 saw the 40th amendment even more to the 9th schedule. The 47th amendment in 1984 added more, and then in 1990 the 66th amendment gave more protection to land ceiling acts.

The 76th amendment to accommodate Tamil Nadu Government’s legislation to provide for reservations to the level of 69 percent for SC/ST and OBCs followed. What takes the cake however is the 78th amendment, which was about not just immunity to laws in 9th schedule, which was suspect, but amendments to those laws and making those amendments immune. Since then there were absurd laws from Sugarcane supporting price to the New Delhi Urban Zoning Laws all clamoring for an exalted spot in the much abused Ninth Schedule.

Supreme Court Judgement in I.R.Coelho Case 2007

However in a major turnaround in 2007, the Supreme Court in I.R. Coelho case ruled that there can be no unrestricted immunity for laws mentioned in the Ninth Schedule. Yogesh Kumar Sabharwal was the Chief Justice of India at this time.

The Court ruled that Judicial Review forms a Basic Feature of Indian Constitution and it will apply to acts and regulations included in the Ninth Schedule too.

But the subjection of Ninth Schedule to Judicial Review was restricted to those regulations which were included in the Ninth Schedule after 24th 1973.

So all acts, regulations and laws included in the Ninth Schedule after 24th April 1973 are open to challenge in court if they violated Fundamental Rights guaranteed under the Articles 14, 15, 19 and 21 or the ‘basic structure’ of the Constitution.

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