Ninth Schedule of the Indian Constitution – History, Issues, Challenges

ninth schedule upsc

On February 2020, a Lok Sabha MP stated that the government should immediately put all issues pertaining to reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes in the Ninth Schedule of the Constitution so that they are not challenged in the court. This statement comes days after the Supreme Court ruled that the reservation in the matter of promotions of the public post was not a fundamental right and that a state cannot be compelled to offer quota if it chooses not to. The Ninth Schedule of the Indian Constitution, since its enactment, remains a contentious issue as its constitutionality is questioned.

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What is the Ninth Schedule of the Indian Constitution?

  • The Ninth Schedule consists of a list of central and state laws that cannot be challenged in courts.
  • These are laws that are beyond judicial review and cannot be struck down by the judiciary (including Supreme Court) on the ground that it violates fundamental rights.
  • As of now, 284 laws are under the Ninth Schedule.
  • Some of these laws include the Agricultural Land Ceiling Act, Essential Commodities Act, Land Acquisition Act etc.
  • Despite being outside the purview of the judicial review, the Supreme Court, in 2007, stated that even the laws under the Ninth Schedule would be open to judicial scrutiny if they violated the fundamental rights or the basic structure of the Constitution.

How did the Ninth Schedule come to be?

  • Immediately after independence, India’s democratic society faced a significant inequality in the distribution of income, wealth and disparities in the standards of living.
  • The independent Indian government aimed to address these issues.
  • Thus, the land reforms came to existence.
  • These land reforms intended to get rid of all traces of exploitation and social injustice within the agrarian system and to ensure equality of status and opportunity to all sections of the rural population.
  • They aimed to remove the majority control of agricultural lands by a few landlords.
  • However, the landlords fought for their fundamental rights to own property and questioned the legality of the reforms.
  • Before the Supreme Court could adjudicate on this issue, the legislature amended the Constitution to hasten the execution of land reform legislation.
  • Thus, Constitution was amended for the first time in 1951, just 17 months after its formation, to include Article 31B, which along with 31A aims to protect laws related to agrarian reform and to abolish Zamindari system.
  • While Article 31A extends protection to ‘classes’ of laws, 31B shields specific laws or enactments.
  • This was to harmonise contradicting interests, by shaping individual’s rights along with social responsibility.
  • The first amendment added 13 laws in the ninth schedule. The subsequent amendments led to the number of protected laws reaching 284.
  • While most laws under this schedule deal with agriculture/land issues, the list also includes other subjects like the reservation.

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Why Article 31B contradicts Article 13 of the Indian Constitution?

  • Article 13 and 31B in Part III of the Constitution are perhaps the most contradicting laws in the Indian constitution.
  • Article 13 prevents the state from formulating laws that take away the rights of the individuals by making them void.
  • On the other hand, Article 31B states the Acts and regulations specified in the Ninth Schedule shall be not deemed to be void even if they take away individuals’ rights.
  • Article 13 incorporates a norm in the Indian Constitution that the fundamental rights of an individual should be kept unchallengeable from any kind of incursion, be it legislative or executive. Article 31B amalgamated with the Ninth Schedule is an exception to it.

Is Ninth Schedule open to judicial review?

  • Judicial review is the democratic doctrine under which legislative and executive action is a subject to invalidation by the judiciary.
  • Having been adopted by the Indian Constitution from the constitution of the USA, the judicial review is dealt with under Article 13.
  • The judicial review emphasises on the Constitution’s supremacy over the nation and its laws.
  • A momentous ruling of the Supreme Court on 11th January 2007 stated that all laws, including those in Ninth Schedule, would be open to judicial review if they violated the basic structure of the Indian constitution.
  • The court held that the authority to enact a law and to decide the legality of limitations cannot be vested in one organ (legislature) as only judiciary, another independent organ, can examine the limitation on rights in Part III.
  • The court, however, upheld the validity of Article 31B of the Constitution, which empowers the Parliament to place laws in the Ninth Schedule.
  • The apex court ruled that the laws placed under the Ninth Schedule after 24th April 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Indian Constitution.

Why was it challenged by Maharashtra farmers?

The Supreme Court, on January 2020, refused to hear a plea challenging Article 31B and Ninth Schedule. The Article was challenged by a group of farmers for it being anti-farmers. Had it been removed, the Article would have paved the way to challenge many other anti-farmers laws in the country. Some of the reasons for challenging this Article are as follows:

  • According to the Essential Commodities Act, every individual has the right to determine the price of his product, storage capacity and transportation of every business, except cultivators. In the case of cultivators, the Centre has all these rights exclusively.
  • The government has also restricted the land holdings for farmers, which means they cannot own land more than a certain limit.
  • The contentiousness of the Ninth schedule and Article 31B in the constitution creates an inner constitutional contradiction in the following ways:
  1. The laws under the ninth schedule cannot be contested even if they are against the fundamental structure of the constitution
  2. The Article 31B allows the inclusion of void and illegal Acts into the Constitution to make them constitutional. This is a striking proof of the failure of the Indian legislature to conform to the constitutional principles.
  3. Article 31B and Ninth Schedule are solely responsible for India’s agrarian crisis. Abolishment of these laws will ensure that the government need not provide any farm loan waivers.

What are the criticisms of the Ninth Schedule?

  • Incorporation of the Ninth Schedule in the Constitution is contentious as it not only fabricates constitutional paradox but also enables legal contradictions.
  • It provides complete blanket protection to state as well as the central laws that are against the fundamental rights.
  • The main motive behind the insertion of laws under this schedule was to protect land reform legislation from judicial dissection and the ensuing delay. However, as time went on, it has been expanded to contain laws that have nothing to with the land reforms, fundamental rights or directive principles, leading to undesirable changes.
  • It had become the means to realize the political gains.
  • It even consists of laws that have no contemporary significance.
  • Even if there is wariness with regards to the constitutionality of the ninth schedule, the judiciary has refrained from terming these laws unconstitutional, mainly because of the sincere objective with which it was brought in – the economic equality. This superseded all kinds of legal objections.
  • However, now right to property is no more a fundamental right. Since the major objective of the Ninth Schedule was to protect land reform laws from legal repercussions, there remains no justification for the existence of such a provision in the constitution.
  • Moreover, the present changed and dynamic approach of the Indian judiciary does not warrant for the continued presence of this schedule in the Indian Constitution.

Conclusion:

The Article 31B along with the Ninth Schedule was initially put up as a constitutional device to safeguard for land reform laws, which are vital for economic equality. However, its relevance has been reduced due to the changes that have taken place within the country. It existing now questions India’s democratic principles. The 2007 judgement to some extent emphasized this by allowing judicial review of even those laws in the ninth schedule. Yet, there is still scope for misuse of this provision. Necessary provisions must be put forth by either legislature or judiciary to ensure it does not happen in the future and that India’s democracy as well as equality is safeguarded to the fullest extent.

Practice question for mains:

Critically examine the issues with the Ninth Schedule of the Indian Constitution. (250 words)

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