Judicial Review of the Ninth Schedule [UPSC]

In this article we will discuss the Judicial Review of the Ninth Schedule in a simple and easy way. Through this article, we will try to understand whether the Ninth Schedule can be reviewed by the Supreme Court or not.

Judicial review is an integral part of the Supreme or High Court. The Ninth Schedule was made so that Parliament-made laws could be saved from this. What is all this, let’s understand;

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Judicial Review of the Ninth Schedule

| As soon as the Constitution came into force, there was some contradiction in it, especially between the Fundamental Rights and the Directive Principles of State Policy. It was not a petty contradiction that would have been overlooked. What was that, let’s understand it with an example –

Article 14, 15 and 16 talks of equality . Especially talking about Article 15, it prohibits discrimination by state, on the basis of sex, caste, religion, place of birth or race.

Talking about Article 16, it says that equal opportunities will be available to all for employment or appointment to any post under the state. And here also the state will not make any discrimination with the citizens on the basis of religion, caste, gender, place of birth, or origin.

At the same time, Article 46 of the Directive Principles of State Policy , mainly talks about promoting economic and educational interests of scheduled castes and tribes in order to bring them into the mainstream of the society.

The contradiction here is that – on one hand Article 15 and Article 16 talks about equality, while on the other hand Article 46 talks about special facilities or say reservation for SC and ST category.

Here comes a problem, if we protect equality, then the people of the lower strata will never be able to come in the main stream and if they give reservation, then equality will not be left.

An interesting case related to this is the case of Champakam Dorairajan vs State of Madras. The matter was decided in 1951. Let’s see what it was.

Champakam Dorairajan vs Government of Madras – 1951

An interesting case related to what you have read above is the case of Champakam Dorairajan vs Government of Madras (1951) . In fact, the Madras Government felt that unless reservation would be given to certain sections of the society, they would not be able to join the mainstream of the society, so the Madras Government made arrangements for reservation for those few sections.

A girl named Champakam Dorairajan challenged this in the High Court on the ground that it was in violation of Articles 15, 16 and 29(2), which was also correct.

Article 29(2) clearly states that no institution operated out of state funds shall discriminate against any citizen on grounds of religion, caste, race, sex and place of birth.

The Supreme Court said that the reservation given on the basis of community violates the fundamental rights, therefore the state cannot make a system of reservation on the basis of caste or religion in the matter of admission, because it violates Article 16(2) and Article 29(2).

Along with this, the Supreme Court said another big thing that whenever there is a conflict between the Fundamental Rights and the Directive Principles of Policy, then in that case only the Fundamental Right will be considered effective and not the DPSP.

Because even if the Directive Principle of State Policy is not implemented, it is fine, it is not mandatory to implement it anyway. But protecting the fundamental right is an urgent duty of the Supreme Court.

However, the Supreme Court made it clear that the Fundamental Rights can be amended by the Parliament through the constitutional amendment process.

| Obviously the Directive Principle of State Policy is not binding, but the Fundamental Right is there and the Supreme Court gave priority to the Fundamental Right. But when everything is a Fundamental Right, then what is the need of the Directive Principle of State Policy?

The Prime Minister of that time, Jawaharlal Nehru , who was a leader of a socialist ideology, understood that if the deprived sections of the society were to be brought into the mainstream, then some provisions of the Constitution would have to be removed by amending it. Because if this is not done, then the Supreme Court will hang its leg every time and the underprivileged of the society will always be deprived.

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Judicial Review of the Ninth Schedule

first constitutional amendment

Thus in June 1951, Pandit Nehru made the first amendment of the constitution. The amendment was as follows.

| The Zamindari system was abolished and land acquisition was made easy. It was written in Article 31 (A) itself that the provisions of Article 31 will not work on all the laws related to land reforms . That is, through this it was made easy to acquire land from landlords and others in public interest.

Note – Abolition of zamindari system, land acquisition etc. are covered under the Land Reform Act.

| Article 15 was also amended and it was written that if reservation is given to any class, then it cannot be challenged in the Supreme Court in the name of violation of Article 29(2).

| The most special and interesting thing is that a Ninth Schedule was made under Article 31 (B) and it was written in it that neither of the Acts and Regulations specified in the 9th Schedule nor any of its provisions shall be considered void.

That is, to put it in simple language, whatever act or provision will be put in it, it cannot be reviewed in the court. At that time in 1951, 13 subjects were added to it. Which has increased to 284 as of today .

The first to challenge the land law was Kameshwar Singh v State of Bihar, in which case the Bihar Land Reforms Act 1950 was challenged on the ground that the classification of zamindars for the purpose of paying compensation was discriminatory. The Patna High Court held this part of the law to be in violation of Article 14 as it classified landlords for the purpose of payment of compensation in a discriminatory manner.

As a result of these judicial pronouncements, the government became apprehensive that the entire agricultural reform program would be in jeopardy. To ensure this, the legislature put this law in the Ninth Schedule in the year 1951.

| Thus Article 31(b) of the Constitution of India ensured that no law of the Ninth Schedule could be challenged in the courts and that the government could rationalize the social program by reforming the land and agricultural laws.

In other words, laws under the Ninth Schedule are outside the scope of judicial review, even though they violate the fundamental rights under Part III of the Constitution. That is, the Supreme Court cannot review the Ninth Schedule.

Another feature of Article 31(b) is that it is retrospective in nature. When an Act is declared unconstitutional by a Court of law and subsequently included in the Ninth Schedule, it is held that its It is constitutional since its inception.

The rationale for Article 31(b) and the Ninth Schedule was to protect the law relating to property rights and not any other kind of law. But, in practice, Article 31-B is being used for purposes other than this.

Till the time the Supreme Court decided the Shankar Prasad and Sajjan Singh case, the Supreme Court’s approach was consistent with the legislation. The Supreme Court observed that the increased power of the legislature due to the Ninth Schedule did not pose any threat, on the contrary, it was necessary to reduce poverty and equitable distribution of land holdings in rural areas.

The Supreme Court, in Golaknath v State of Punjab, took a tough stand that if a fundamental right guaranteed by Part III of the Constitution was taken away, the amended Act itself would become void, in other words, by Parliament. It has no power to amend or take away the Fundamental Rights enshrined under Part III of the Constitution.

Subsequently, in Kesavananda Bharati 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/basic structure of the Constitution cannot be amended. And if any constitutional amendment which changes the basic structure of the constitution then that act can be nullified by the court.

In the case of Vamana Rao Vs Union of India

In the case of Vamana Rao v. Union of India (1981), the Supreme Court held that (1) no law or provision can be inserted in the Ninth Schedule which is violative of the basic structure and fundamental rights of the Constitution,

(2) The amendment made in the Constitution before 24 April 1973 i.e. Kesavananda Bharati case, and by which various Acts and provisions have been inserted from time to time in the Ninth Schedule of the Constitution are valid and constitutional.

But after April 24, 1973, Acts or provisions inserted in the Ninth Schedule can be subject to judicial review by the Supreme Court if that Act is harming the basic structure of the Constitution.

The First Amendment (1951), Fourth Amendment (1955), Seventh Amendment (1964) and Thirteenth Amendment (1972) were inserted in the Ninth Schedule before 24 April 1973.

34th Amendment (1974), 39th Amendment (1975), 40th Amendment (1976), 47th Amendment (1984), 66th Amendment (1990), 76th Amendment (1994), 78th Amendment (1995) has been inserted in the Ninth Schedule after 24 April 1973 .

IR Coelho vs State of Tamil Nadu

In IR Coelho v State of Tamil Nadu, on 11 January 2007, a 9-judge Constitutional Bench of the Supreme Court held that all amendments to the Constitution made on or after April 24, 1973, including amendments to the Ninth Schedule by inclusion of various laws Have to go, will be tested.

If a law violative of any right in Part III of the Constitution has been included in the Ninth Schedule after 24 April 1973, then such violation shall be open to challenge on the ground which would destroy the fundamental right or the basic structure of the Constitution. or damages

Overall, after the landmark Supreme Court judgment in the IR Coelho case, it is now a well settled principle that any law placed under the Ninth Schedule after 24 April 1973 is subject to court scrutiny if it violates the Fundamental Rights. has done or has damaged the basic structure of the Constitution.

|If this Court has upheld the validity of any law of the Ninth Schedule, then such law based on the principle declared by this judgment cannot be challenged again. However, if any law has been declared violative by the court on the basis of Part III and that law has been included in the Ninth Schedule after April 24, 1973, then such violation will be eligible to be challenged. On the ground that it damages the basic structure of the constitution and fundamental rights.

So on the whole, our founding forefathers wisely incorporated the provision of judicial review in the constitution itself so that the balance of federalism is maintained, the fundamental rights and fundamental freedoms given to the citizens can be protected and the availability of equality, liberty and freedom can be achieved and Be successful in creating a healthy nationalism to enjoy.

Must Read – Conflict Between Fundamental Rights and DPSP

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