This article has been written by Ravi Shankar Pandey, a first-year student of Dr. Ram Manohar Lohia National Law University, Lucknow. In this article, he discusses the 1st amendment to the Indian Constitution through the insertion of Article 31B and ninth schedule along with the evolution of the doctrine of basic structure in the light of various judicial pronouncements.

Introduction

Whenever any new law is implemented in India or any amendment to existing law is made, if it does not comply with constitutional norms, is nullified or reverted.  But, this is not the same for every law which is enacted and the exception in such cases are backed under Article 31B. If any law is kept under 9th schedule, it goes unchallenged even if it violates the FRs (Fundamental Rights). But, in judgements followed, it is now well established that although there is a constitutional validity of such laws and government is entitled to place any law under the  umbrella of 9th schedule, there are also prone to judicial scrutiny if they do not comply with “basic structure doctrine” established in the landmark judgement of Keshavananda Bharati.

What is a Judicial Review?

Judicial review may be defined as “scrutiny of the decisions made by the legislature and executive, by the judiciary to check whether they are in consonance with constitutional values and ideals of equity, justice and good conscience”. This prevents the decision making bodies to act against public welfare and restricts them from making laws for their own good.

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Background

9th schedule along with Article 31B was added in 1951 through the first amendment in Indian Constitution. It was meant to enact some new laws which were important to transform India into a more egalitarian society. The amendment was the need of the hour as in the case of Kameshwar Singh v. The State of Bihar, government’s decision to classify zamindars into different categories for procuring their land was criticized by the judiciary and it was a major setback as the Court stated that doing so was a violation of Art. 14 that guarantees equal protection of laws to the citizens as such classification was discriminatory.

Article 31B states that, “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”.

Hence, when any legislation is kept under the 9th schedule, it does not matter whether it violates the fundamental rights of a person. This provision restricted the rights of the judiciary and on other hands, increased the power of the legislature. Hence, it started the conflict between the judiciary and the government.

Features of Art. 31B

• Retrospective in nature- If an act is held unconstitutional and thereafter is put under 9th scheduled it will be considered as its part since its commencement.

Jeejeebhoy v. Assistant Collector— the court stated that “Article 31B shows that it is a drastic and novel method of an amendment”.

• To protect property rights- Article 31B was inserted in the constitution for legislation governing rights relating to the property. But, in the years following, it has resulted in the insertion of other laws also for purposes other than that related to society and economics.

9th Schedule

The 9th schedule was drafted by the first government of independent India in the tenure of J L Nehru. It represents a drastic but innovative technique of amending the Indian Constitution. It is a method to bypass the judicial review and judicial scrutiny. Any act which is added under the 9th schedule gets resistant from any encroachment from judiciary even if it infringes the fundamental rights of an individual.

The result of the clash of ideology between the conservative judiciary and progressive and growth-oriented legislature and executives, it was added to cover only a few legislations under its ambit, but with the passage of time, the government used it as a blanket for many types of legislation covering over 250 Acts in the present.

Objectives

1. To implement various land reforms, after independence.
2. Abolition of Zamindari system in order to put an end to feudalistic society and to provide a pavement for socialism to take its place.
3. To immunize certain legislations which act as a blockade in bringing reforms and that have the potential to infringe fundamental rights.
4. To uphold the interests of weaker sections of the society by bringing them at par with the other sections of the society.
5. To meet the constitutional goal of establishing an egalitarian society and to reduce the concentration of land in few hands by dividing it into the farmers.

Nature and Scope of Article 31B combined with the 9th schedule

It is now an established fact that the Ninth Schedule has transformed itself to become a dustbin and house for each disputed law which is passed by the lawmaking body. Such a circumstance was not conceived at that time when the First amendment was made to the Indian Constitution. It is contended here that a right elucidation of the language of Art.31-B can adequately end this problem.

Arts.31-A (1) and 31-B are planned to work as insurance against results which could somehow or another mean lead to the breach of the constitutional rights specially, the fundamental rights granted under part 3. Enactment falling under any piece of Art.31-A (1), including the arrangements, can likewise get insurance under Art.31-B. In this association, to know further about the connection between Arts. 31-A and 31-B, Professor A.R. Blackshield’s observation is pertinent to the discourse. He considered the opening expressions of Art.31-B (Without reference to the consensus of the arrangements contained in Art.31-An) as the basic interconnection between Articles 31-A and 31-B. That gives ascend to a derivation that Article 31-B read with Ninth Schedule is particularization of Article 31-A in itself.

But sadly, the legal methodology on this issue isn’t on the above lines, due to the outcome that Ninth Schedule has become a ready weapon for ensuring presence of illegal laws based on time, subject and space.

In Vishweshwara v. State of Madhya Pradesh, the Court observed Art.31-B as free of Art.31-A. From there on, the opening expressions of Art.31-B were translated by the Court in N.B. Jeejeebhoy v. Assistant Collector, Thana by suggesting that “the Demonstrations and guidelines indicated in the Ninth Schedule would have the insusceptibility regardless of whether they didn’t pull in Art.31-A of the Indian Constitution.” The Court’s reasoning was based on the fact that “if each Demonstration in the Ninth Schedule would be secured by Art.31-A, this Article would become repetitive.” Further, they got support from the presence in the Ninth Schedule of laws irrelevant and reasoned that Art.31-B was not represented by Art.31-A.

It is submitted that this approach is quite deceptive, and the correct conclusion was stated by J. Bhagwati by an in-depth analysis in the celebrated judgment of Minerva Mills v. Union of India, when he expressed that “the Ninth Schedule of Art.31-B was not planned to incorporate laws other than those secured by Article 31-A.” In such manner, it is submitted that the right translation of the expression ‘without reference to the sweeping statement of Art.31-A’ can be understood through the accompanying method. The ambit of Article 31 is able to expand itself to cover five kinds of laws, comparing to sub-provisos a) to e) of its first clause. Presently, by giving that Art.31-B does not take away from the sweeping statement of Article 31-A, what is implied is that in spite of the fact that a law might be incorporated into the Ninth Schedule under Article 31-B, it, in no manner deprives a person of his rights that are protected under Article 31-A.

Evolution of the Concept of Judicial Review

Judicial Review plays an important part in the enforcement of the rights granted under the Indian Constitution. By acting as a cornerstone for the principle of constitutionalism, it may be justified as it upholds the principle of the rule of law and the doctrine of separation of powers. Basically, it comprises the power of the Courts to render any law or order, unconstitutional or void based on its inconsistency with the basic motto behind the law of the land.

Prior to studying the role of the judiciary in reviewing the laws inserted under the 9th schedule, it’s important, firstly to discuss the history and evolution of judicial review. The Arthashastra, written by Chanakya, Smritis, and, Dharmashastras may be counted as one of the earliest sources that show the existence of the judiciary. The time when they were written had the firm belief that the law is always above the rule so that the government cannot enforce a law which is tyrannical in nature. Although the King was considered as the fountain and prominent source of justice, he himself was expected to resolve all disputes based on the principle of Dharma. Even during the Mughal period, the highest judge in the kingdom used to be the King.

Similarly, in ancient Greek also, the philosophers emphasized in the welfare of people and their relation with law, and opposed every law which was unjust and tyrannical. Aristotle by interpreting the philosophies of Plato in a more practical form concluded that “the nature of the law should be in consonance with Constitutional values.

In the UK and USA, the advent of judicial review emerged much earlier in comparison to India. In Britain, it was due to Lord Coke’s instrumental role in Dr. Bonham’s case (1610) which ascertained that the Common law is always above the House of Commons. Similarly, in the USA, the judicial review was established in the case of Marbury v Marsden but the doctrine traces its origin to the Bonham case which is regarded as a social and political heritage from Britain. The judgement in Marbury derived the doctrine of judicial review from the written constitution itself and subsequently designated the constitution as the supreme law and States the need for a more rigorous statutory interpretation.

In India, during the post-independence period, due to the emergent need of enforcing the individual as well as the group rights, the concept of judicial review was considered as a necessity. In the broader scale there are mainly three aspects of judicial review, they are-

• Judicial review of administrative actions
• Reviewing Judicial pronouncements, and
• Review of the action of the legislature.

Unlike in the USA, where the nature of the judicial review is more substantial, India has a more procedural review system. In addition, Indian Judicial review has its root directly in several Articles of the Indian Constitution e.g. Article 13, 32, 131 to 136, 143, 226 and 227 etc. which is not a case in countries like the USA.

Importance of Judicial Review

Judicial review, as has been mentioned earlier, due to its inherent nature with Constitutional norms, is responsible for balancing the interests and powers of different organs of the government and in assisting in the maintenance of control by marking a boundary to limit uneven encroachment of the authorities towards a person’s constitutional rights and among themselves. It’s important to state Dr. B. R. Ambedkar’s observation on judicial review. He remarked in the Constitutional Assembly,

“If  I was asked to name any particular Article in the Constitution as the most important, it is Article 32 without which the Constitution would be a nullity- it would not refer to any other Article except this one.  It is the very soul of the Constitution and the very heart of it and I am glad that the house had realized its importance”.

Judgements after the 1st amendment

Initially after the institution of Art. 31B and 9th schedule, the court agreed with the government that such provisions are necessary for agrarian reforms and in the establishment of equality on a larger level. But, the tussle between judiciary started from the case of Golaknath v. State of Punjab (1967) and continued until landmark judgement in Keshavananda Bharati (1973).

The facts of the Golaknath case- The Golaknath family owned 500 acres of land in Punjab. But, due to Punjab Security and Land Tenures Act of 1953, they were only allowed to keep 30 acres of land with them. They challenged the act on the grounds of violation of their fundamental rights of property. The foremost question before the court was- Can fundamental rights be amended?

Judgement- the Parliament cannot curtail the fundamental rights of an individual.

1. Keshavananda Bharati v. State of Kerala– The court upheld the judgement in Golaknath and introduced a new concept of “Basic structure of the Indian Constitution” and stated that, “all provisions of the constitution can be amended but those amendments which will abrogate or take away the essence or basic structure of constitution which included Fundamental Rights are fit to be struck down by the court”.
2. Waman Rao v. Union Of India– In this important judgement, the Apex Court ruled that, “those amendments which were made in the constitution before 24th April 1973 (date on which judgement in Keshavananda Bharati was delivered) are valid and constitutional but those which were made after the stated date are open to being challenged on the ground of constitutionality and the State is only immunized for its acts before the judgement in Keshavananda Bharati. This is also known as “Doctrine of Prospective Over-Ruling” which means that ‘only what follows after is bound to abide by the rules and what has happened earlier will not be taken in the account’
3. I R Coelho v. State of Tamil Nadu-Two important questions were referred to the higher bench by the constitutional bench of 5 judges which remained unanswered in the judgement in Waman Rao. The questions were,

1.  Can an Act or the part which violates Arts. 14, 19 or 21 be included in 9th schedule?
2.  Is it mandatory that only a constitutional amendment which destroys the basic structure be struck down?

Judgement- It was held that every law must be tested under Art. 14, 19 and 21 if it came into force after 24th April 1973. In addition, the court upheld its previous rulings and declared that any act can be challenged and is open to scrutiny by the judiciary if it is not in consonance with the basic structure of the constitution. In addition, it was held that if the constitutional validity of any law under the ninth schedule has been upheld before, in future it cannot be challenged again. Thus, it put a check on the legislature to formulate laws so that they do not take away the rights of the citizen and thus settled all the dilemmas prevailing over the law under the 9th schedule.

The Doctrine of Basic Structure

The doctrine of basic structure is established on the basis of the difference between constituent power which is considered as the original power of framing the constitution and the nature of constituent power which the Parliament possess through the aid of Article 368. It is argued that by adding the words “constituent power” in Article 368, the parliament cannot be considered similar to the Constitution Assembly. It is always the Parliament which must follow the laws established through a controlled Constitution.

While evolving, the issue which was mainly examined was the issue of ‘use of the device under Article 31B to immunize the laws under ninth schedule’. In Waman Rao, the court answered in the affirmative by making the part three of the constitution inapplicable to such laws which were incompatible with basic structure doctrine and were placed under the ninth schedule. It was stated by the apex court that such act of the legislature of putting the laws violative of fundamental rights under the ninth schedule will remove the control over legislative power and will render the basic structure doctrine redundant.

In addition, it is worth mentioning that the whole purpose of the basic structure doctrine is to save the golden triangle of article 21 read with articles 14 and nineteen excluding the entire part 3 of the constitution from the effect of the laws placed under the ninth schedule.

Scope of judicial review for laws placed under 9th Schedule

Before discussing further, in one word it may be said that the scope of reviewing the laws placed under 9th schedule is limited. The first amendment was brought by the parliament after the Kamleshwar case and with the insertion of article 31B along with the 9th schedule for giving effect to agrarian reforms. The provisions inserted were made to provide immunity to the laws inserted under them from judicial encroachment.

After the first amendment, the major landmark case in which the question of immunity granted to parliament was presented before the court was the case of Shankari Prasad. It was asked that whether Article 31B read with schedule 9 was unconstitutional by excluding the scope of judicial review. It was contended that excluding judicial scrutiny for such laws will amount to a violation of Article 13(2).

The Court rejected the petition by stating that “there is a chart clear demarcation between ordinary law and constitutional law, and so, the amendments made under Article 368 are not affected by the application of article 13 (2). In addition, the parliament under Article 368, is empowered to amend the fundamental rights also and at such instances judicial encroachment is impermissible.

But, at a later stage, in Golaknath case, it was held that the parliament has no power to amend the fundamental rights including the provisions on personal property. The parliament aggrieved by the judgement in Golaknath, passed the 24th amendment in 1971, which empowered it to amend any part of the Constitution including the fundamental rights.

This stage i.e. the years following 24th amendment may be considered as the years of a tussle on the issue of power and authority between the legislature and the Indian Judiciary which followed its course until the landmark judgement in Kesavananda Bharati (24 April 1973).

In its decision in Kesavananda Bharati case, the Apex Court through its largest constitutional bench of 13 judges stated that “although the amendments made under Article 368 are Constitutional, the court is entitled to reject any of them if their nature is such that ‘they may violate the basic structure of the Indian Constitution”. The criteria would be to check whether the concerned statute has the potential to violate any article which acts as a touchstone for the whole Indian Constitution.

This case put a check on the enormous power of the parliament through the introduction of basic structure doctrine and made the judiciary more powerful. This case is also regarded as the saviour of Indian democracy.

However, when a similar matter reached the court in Indira Gandhi v Raj Narain, regarding 39th amendment by the parliament which added some controversial laws under the ninth schedule, the court held that “ordinary laws placed under 9th schedule cannot be subjected to basic structure test and only the constitutional amendments which are made through Article 368 are prone to judicial scrutiny if they are violative of basic structure.

But, even after the judgement in the Keshavananda Bharati case, the legislature tried to threaten judicial review by passing the 42nd amendment which again opened the way for amending the fundamental rights. However, this fraud which was committed by the parliament through 42nd amendment was later corrected by the Apex Court in Minerva Mills case.

In Minerva Mills, the Supreme Court struck down clauses 4 and 5 which were added to Article 368 through 42nd amendment and observed that “the donee of a limited power cannot convert his limited power into unlimited one by exercising the power that he possesses”. The doctrine of basic structure and the judgement in the case of Minerva Mills was later affirmed in many subsequent judgements including Waman Rao v Union of India, I R Coelho and M Nagaraj.

Conclusion

While concluding, it may be stated that it was some sort of deliberate attempt of the constitution framers to exclude the scope of judicial review for the laws placed under the ninth schedule. This is evident from the fact that the nature of the right to property was, from its inception, such to invite various disputes. However, the misuse of Article 31B and ninth schedule started only after the 4th amendment when few non-agrarian laws were excluded from the scope of judicial scrutiny.

But ultimately, due to the intervention of the Apex Court from Shankari Prasad to Keshavananda Bharati had ensured to put a check on the powers of the law making body by describing the basic structure of the Indian Constitution. It may be stated that when the parliament deleted the law of the right to property through the 44th amendment, it should have amended the provisions of the ninth schedule to allow judicial review. But, it didn’t happen and thus, Article 31B along with ninth schedule continued to act as a blanket of the parliament to include any law that it considers fit and proper, opening the possibility of the abuse and misuse of 9th schedule.