Happy birthday Ninth SchedulePosted: June 18, 2012
18th June, 1951
Operation theatre. First surgery, within just 18 months. Tensed atmosphere. Yet, experts were around.
Situation demanded surgery. At least, that is what everyone around believed.
Motive was clear. To make an egalitarian society. At least, that is what everyone around believed.
Injury was healed, less successfully. Yet, the worst nightmare came alive. The infection that surgery caused that day remained for almost 56 years. And, it helped causing a vital blow to the heart in 1975. Though there might be people saying that the intense is reduced now, the scars that infection created, are very much there; as a symbol of political shame in the Indian independent era.
That infection, Ninth Schedule to the Constitution of India.
What an idea sir ji?
After series of judicial pronouncements starting from Kameshwar Singh V State of Bihar, where the courts struck down land reform laws on the ground that they violated fundamental rights enshrined in the Constitution, the Government got apprehensive that the whole agrarian reform programme would be endangered. Reasonably, so.
As a result of which, this day in 1951, the Government came up with the First Amendment to the Constitution.
Besides few other things, what all the Government did was very simple. Inserted Ninth Schedule to the Constitution and said ‘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 provisions 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’. Well played.
In other words laws under Ninth Schedule are beyond the purview of judicial review even though they violate fundamental rights enshrined under part III of the Constitution.
The best part of this amendment is that it is retrospective in nature that is when a statute is declared unconstitutional by a court and later it is included in the Ninth Schedule, it is to be considered as having been in that Schedule from its commencement. Indira Gandhi would have said ‘Love you Papa’ for this genius.
The first real ‘tussle’ between Judiciary and Executive. The first real lesson modern day politicians learnt which they ought not to have.
Since then, Ninth Schedule instantly became a bin which heartily welcomed every bit of dust and garbage. 1951 – 13, 1955 – 7, 1964 – 44, 1971 – 2, 1974 – 20, 1975 – 38, 1976 – 64, 1984 – 14, 1990 – 55, 1994 – 1, 1995 – 27. In 61 years, 284 Acts have been dumped in Ninth Schedule by taking a formidable lead against Olympic medal tally in the entire history by India.
The vital blow was when Judiciary held against Indira Gandhi in an election petition. She made amendments to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws Amendment Act, 1975. ‘You tell me I lost. I go and change the rules of the game.’ Like that, very simple. And, court upheld the amendment too. Legendary.
That amendment bill was introduced on August 7, 1975 and passed by the Lok Sabha the same day. The Rajya Sabha passed it the next day and the President gave his assent two days later. No Anna Hazare. No fast unto death. Bill got passed just like that.
Another noteworthy political shame was when Seventy Sixth Amendment was passed in 1994 to accommodate Tamil Nadu Government’s Legislation which provided 69 percent reservation for backward classes. Somebody should have simply said, “Boss, wrong number!”.
After legendary battles in courts (and, considerably increasing law students’ syllabus), the position is somehow settled now after January 11, 2007. While delivering the judgment, 9 Judge Constitutional Bench of the Supreme Court held that, all amendments to the Constitution made on or after 24th April 1973 (i.e. the date of Judgment of His Holiness Kesavananda Bharati case) by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution.
In other words, even though an Act is put in the Ninth Schedule by a Constitutional Amendment, its provision would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right.
For teaching all of us some priceless lessons which many of us already forgot, I shall remember you this day and wish you, “Cheers! Long live! Happy Birthday Ninth Schedule!”