9th Schedule of The Indian Constitution

The Ninth Schedule of the Indian Constitution was added by the First Amendment in 1951 to grant protection to certain laws from judicial review. This means that once the laws are put in Ninth Schedule they cannot be struck down for violating fundamental rights. While initially intended for land reforms/ ceiling laws it was misused with controversial additions like Emergency laws. Hence, this provision was challenged before the Supreme Court in the IR Coelho Case, which upheld judicial review for laws added in the Ninth Schedule after 1973 if they violate 'basic structure' or specific fundamental rights. This ensures a balance between legislative freedom to bring reform and protecting citizens' rights.

During the British Raj, zamindari system was practiced where the zamindar extracted rent from peasants and paid taxes to the British. Large areas of land were all owned by one Zamindar who was often absent and did not care about the welfare of the land or the peasants working on it. During the freedom movement, there was resistance against these oppressive Zamindari practices. The freedom fighters sought to bring in land ceiling laws to prevent such consolidation of land. After the Constitution of India was adopted, the Parliament sought to bring in legislation for zamindari abolition and equitable distribution of land. However, this was struck down by the Courts in light of Article 31 i.e. the Right to Freedom of Property. It meant that no land reforms could be brought in which impacted land ownership rights of another. This worried the first Prime Minister of India, Pandit Jawaharlal Nehru who then sought to amend this provision.

In 1951, the Constitution was amended for the first time and Article 31B was added along with a Ninth Schedule to the Constitution. Article 31B states that no law or regulation included in the Ninth Schedule can be struck down on the grounds that it violates the Fundamental Rights given in Part III of the Constitution. Ninth Schedule allowed the Parliament to bring in reforms without being restricted by the Fundamental Rights.

Initially, only 13 Acts were introduced however since then around 282 Acts have been added in the Ninth Schedule. While most of these Acts or Regulations deal with land reforms and abolition of zamindari, some additions to this list were controversial like Emergency laws in 1970s. Since there was no criteria for what kind of legislation could be added to Ninth Schedule, there was potential of misuse. Hence, the Ninth Schedule was challenged in the IR Coelho Case where it was upheld by the Supreme Court of India. Supreme Court gave the ‘basic structure test’ meaning that laws will be allowed in the Ninth Schedule it they do not violate the ‘basic structure’ of the Constitution of India. This basic structure has been given by Courts over many years.

• Facts of the Case: Many state’s legislatures were passing land ceiling laws which were held to be arbitrary by the State High Courts, however, these were then added to the Ninth Schedule to escape judicial review.
• Issue before the Court: The question before the nine judge bench of the Court was whether the laws in the Ninth Schedule can be reviewed by the Courts if they violate fundamental structure of the Constitution.
• Held: It was held that no blanket immunity from judicial review of laws can be given.
• Judicial Review is a Basic Structure:Since judicial review is one of the ‘basic structures’ i.e. fundamental features of the Constitution it cannot be taken away by way of an amendment. This doctrine of basic structure was given in the Kesavananda Bharati case passed on April 24, 1973. Meaning the Judiciary always has the power to examine laws and whether they are oppressive and violative of the rights of the people.
• Test of Basic Structure & Fundamental Rights:Hence, it was held that, laws placed under the Ninth Schedule after April 24, 1973, are open to challenge in court if they violate Fundamental Rights guaranteed under Articles 14, 15, 19 and 21 or the ‘basic structure’ of the Constitution.
• Direct Impact or Effects Test: Courts should check the effect of the Law placed in the Ninth Schedule on the rights of the people. It means the form of an amendment is not the relevant factor, but the consequence it has will determine whether it should be struck down.
• Test To Apply from 24 April 1973: It was held that laws already placed under the Ninth Schedule will not be challenged, however any law added after 24 April 1973 can be challenged if it violated basic structure as indicated in Article 21 read with Articles 14 and 19.

The National Commission to Review the Working of the Constitution (2002) recommended that there should be guidelines given to the governments on what kinds of laws can be included in the Ninth Schedule. This was necessary to ensure that this provision which was brought in as a protective measure is not misused as a loophole by the Government. It was recommended that only laws which intend to meet the following demands be allowed to be put in the Ninth Schedule:(i)agrarian reforms, (ii) reservations, and (iii) the implementation of Directive Principles specified in clause (b) or (c) of Article 39 (i.e for equitable distribution of resources and prevent concentration of wealth). If the recommendation of the Commission is adhered to, then the burden on the judiciary to review each legislation will also reduce.