BY …
India is predominantly an agrarian society of which three-fourth of total population is mainly dependent on agriculture and rural economy for their livelihood. Pre-Independence, a huge majority of population was living in rural areas and their living conditions were so deplorable as a result of policies of British Government. To cut out unhealthiest impediment to the progress of agrarian sector, Government of India moved a large number of land reform programmes in first and second five year plans with the objective to increase in agricultural production and economy.
These large numbers of land reform include abolition of Zamindari System, allotment of land to landless, protecting the arbitrary ejectment of tenants, reduction in rental values of land, abolition of tax on agriculture, and the like.
Due to large number of land reform legislations passed by different states, problem regarding the validity of these legislations soon arose as these legislations affected the fundamental rights of Zamindars provided under Part III of Constitution of India. Also because of contrary opinion of High Courts of respective states in deciding the constitutional validity of land reform legislations.
In order to remove such possibility of laws invalidated by Supreme Court and carry out such agrarian schemes, the first constitutional amendment bill of 1951 by which Article 31-A and 31-B were added and Ninth Schedule was incorporated in the Constitution of India to curtail the power of the judiciary in matters of land reform legislations.
Objects and reasons for the Constitution (First Amendment) Act, 1951
The object of this Act is securing the constitutional validity of Zamindari abolition laws. Articles 31-A and 31-B are the exception to Article 13 of the Constitution which immunize legislations from challenge on the ground of violation of Fundamental Rights. Though the law enacted by legislation under Article 31-A is violative of Part III of Constitution, it is necessary to make such laws as constitutional valid in order to give effect to agrarian reform and to establish egalitarian society.
A very significant characteristic of Article 31-B is that it is having retrospective effect. As a result, any legislation which was declared unconstitutional by Supreme Court in violation of fundamental right, receive protection if that legislation is added to Ninth Schedule by Constitutional Amendment and it is deemed to be constitutionally valid from the date of its inception.
Article 13(2) of the Constitution or the constitutional amendment act curtailing jurisdiction of Supreme Court and High Court under Article 226 and 132 to declare certain kinds of laws void for violation of Fundamental Rights was considered. The Constitutional Bench of Supreme Court unanimously rejected the contention and declared that the constitutional amendment made under Article 368 will not come within the mischief of Article 13(2) of the Constitution of India and jurisdiction of courts are still intact and only certain classes of cases are excluded from operation of Article 13.
The first amendment act and powers of Parliament to abridge any right guaranteed under Part III of Constitution by an amendment were declared valid. Again a second attempt was made to challenge the principle laid down in the case of Sajjan Singh v. State of Rajasthan. Petitioners raised contentions that the impugned amendment was invalid and purported to set aside the decision of Supreme Court by adding to Ninth Schedule.
In case of I.C. Golaknath v. State of Punjab, validity of Constitution Seventeenth Amendment Act, 1964 was again challenged relating to right to property issue. Supreme Court overruled the earlier judgments by majority and held that Part III of the Constitution is beyond the reach of amending power of Parliament. To protect a large number of amendments declared invalid, Supreme Court applied for the first time the doctrine of Prospective Overruling and held that this judgment will have only prospective operation and earlier amendments would continue to be valid.
Parliament enacted the 24th Amendment to make the decision in Golaknath case unenforceable. This amendment added new clauses and restored the amending power of Parliament under Article 368. The view of the 24th Amendment was challenged in the landmark judgment of Keshavananda Bharathi v. State of Kerala, where the Supreme Court by a 7-6 majority partially overruled the earlier judgment by upholding the power of Parliament under Article 368 to amend any part of the Constitution except the basic structure of the Constitution.
Justice Hans Raj Khanna asserted that amendments which tend to affect the basic structure of the Constitution are subject to judicial review. The Supreme Court also upheld the doctrine of Prospective Overruling laid down in the Golaknath judgment.
To limit the judgment of Keshavananda Bharathi, Parliament enacted the Constitution (42nd Amendment) Act, 1976 which added clauses (4) and (5) to Article 368, purporting to bar judicial review of constitutional amendments. The Supreme Court struck down clauses (4) and (5) in Minerva Mills v. Union of India, making it clear that the Constitution and not Parliament is supreme in India.
In Waman Rao v. Union of India, the Supreme Court held that all Acts and Regulations enacted in the Ninth Schedule before 24th April 1973, the date of the Keshavananda Bharathi judgment, could not be challenged on the ground of inconsistency with Fundamental Rights. Acts and Regulations inserted in the Ninth Schedule after 24th April 1973 would not be protected by the reasoning of Keshavananda Bharathi in cases where the constitutional amendment would be invalid to the extent that it derogated from the doctrine of basic structure.
Once the legislation comes under the protective umbrella of Schedule Ninth it gives blanket protection to all items enumerated in given schedule and its constitutionality cannot be challenged in any court of law within territory of India as per the wording of Article 31-B. No protection is available to any order or notification made under the Act including original Act.
Misusing of Ninth Schedule
The very purpose of Ninth Schedule was to give protection to land reform laws for establishment of egalitarian society. Initially only a small number of agrarian laws were added in Ninth Schedule to keep them beyond the challenges of Fundamental Rights. But today the schedule contains as many as 284 entries by expanding the scope of the schedule to protect any statute made by Parliament from judicial review.
Entry 257-A was added by the Constitution (Seventy-sixth Amendment) Act, 1994 providing 69% reservation in educational institutions and appointments or posts in the service under the State for Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes, contrary to the Supreme Court judgment in Indra Sawhney case.
Only 249 entries are related to agrarian/land laws from the bunch of 284 entries and the remaining entries relate to insurance, coal, motor vehicle, representation of people Act, economic offences and other subjects. These were added to the Constitution only to escape the legislature from the clutches of judiciary for gaining their selfish motives.