The Controversy about the Ninth Schedule

INTRODUCTION

The ninth schedule was included in the Indian constitution along with article 31 B by the Constitution (First Amendment) Act, 1951. The objective was to deny the courts the power to challenge the validity of certain laws framed by Parliament on the grounds of violation of fundamental rights under Articles 14 and 19 of the constitution. In introducing the amendment, the Government was mainly motivated by the apprehension that the judiciary, dominated in those days by conservatives, would strike down the progressive land reforms laws.

THE JUDGEMENT

Like all functional democracies, the Indian constitution too subscribes to the doctrine of separation of powers between the legislature and the executive on the one hand, and the judiciary on the other. The Supreme Court judgement in the I.R Coelho vs. State of Tamil Nadu and Others case delivered on January 11, 2007 has once again shifted the balance of power in favour of the judiciary. The court re-iterated that it had power to pronounce on the legality of the laws enacted by Parliament including those laws placed under the ninth schedule. A nine-Judge Bench of the Supreme Court gave the verdict after examining the constitutional issue involving the nature and character of the protection provided by Article 31B of the Constitution of India to laws added to the Ninth Schedule of the Constitution. Article 31B says that none of the Acts and Regulations specified in the Ninth Schedule shall be held void on the grounds of inconsistency with the fundamental rights guaranteed under the Constitution.

The Bench unanimously held that even when an Act is placed in the Ninth Schedule by a constitutional amendment, its provisions would have to be compliant with the “basic structure” of the Constitution. The court also ruled that all laws inserted under the Ninth Schedule after April 24, 1973, can now be challenged on the grounds of violation of fundamental rights amounting to an attack on the basic structure of the Constitution. It was on April 24, 1973 that the basic structure doctrine was enunciated by the Supreme Court in the Kesavananda Bharati case. Essentially, the doctrine holds that Parliament cannot exercise its amending power so as to damage or destroy the basic structure of the Constitution.

The Ninth Schedule presently comprises 284 Acts and Regulations, of which about 218 were inserted after April 24, 1973. The post-April 1973 expansion of the Ninth Schedule has apparently alarmed the court. The judgment makes the point that many subsequent additions are unrelated to land reforms : "Article 31B only provided restricted immunity and it seems that original intent was only to protect a limited number of laws, it would have been only exception to Part III and the basis of the initial upholding of the provision. However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is no longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise."

However, it also needs to be noted that the addition of laws under the Ninth Schedule is not a common occurrence. The last addition to the Schedule was in 1995, when Parliament enacted the 78th Amendment, bringing up the total number of statutes to 284.


WHAT ABOUT THE JUDGEMENT

The loudest voices against the SC judgement have come from the left parties who see it as yet another assault on the socialist character of the constitution by the forces representing neo-liberalism and globalisation. For the layman who chooses to stay clear of partisan and ideological battles, a more nuanced view would be in order. A dispassionate analysis reveals a variety of reasons why this judgement may be the natural, if not perhaps the best possible, outcome, considering the murky waters that politics in India has now become.

a) The theory of democracy would have one believe that Parliament represents the will of the people. The recent reality in India is that the people’s verdict, more often that not, is fractured and represents a variety of opinions and concerns. The advent of coalition politics is, in a sense, nothing but governance by compromise and accommodation, often at the level of the lowest common denominator. The balance of power between the parties is delicately poised and tends to shift all too often. Most of the political parties are unwilling to embrace positions likely to antagonise any section of the population with an influence on the electoral arithmetic -- even when it is in the country’s long term interests. Therefore, when we have a political system where the short term view consistently overrides the long term, the criticism that the judgement amounts to a negation of the “will” of the people is does not hold water.

b) When the ninth schedule was introduced, the country was led by Jawaharlal Nehru, a leader of stature and with deep commitment to the rule of law. The leaders who followed him have not had his stature or his levels of commitment to the rule of law. Indeed, it can safely be said, most of them have not been above petty politicking and resort to expediency. This being the wider reality, it makes very good sense to not give our politicians the freedom to both make laws and then have them declared beyond scrutiny by the judiciary.

c) During the first four decades of India’s independence, there was a broad consensus about socialism and the socialist path as the way forward for the country. Much of the political establishment in the country defined itself as socialist of one shade or the other. After the collapse of the Soviet Union and the sweeping rejection of socialism across Eastern Europe, the 1990’s have seen this consensus break down. In particular, after the reforms beginning in 1991, large sections of people in the country have ceased to regard themselves as socialists in any sense of the word.

The ninth schedule mostly shields laws that clash with the right to private property. It had relevance as long as there was a broad consensus about the socialist direction. Confronted by evidence that too much state regulation and interference has done tremendous harm to India’s economy and with the shift in mainstream consensus towards deregulation and an expanded role for the private sector, it is entirely in order that these laws should now be treated as any other law and subject to the same degree of judicial oversight. Having said this, there is also no reason to fear (or hope) that the existing laws in the ninth schedule will be struck down in entirety by the courts. The judges in the Supreme Court are eminent and learned men who can be trusted to act with reason and circumspection.

d) While the left is peeved that the so called “progressive” laws enacted by Parliament would come under judicial review, it has not considered the possibility that the ninth schedule has the potential to be a double edged weapon. After all, it is not inconceivable that a future right wing government may enact laws favouring the industrial and entrepreneurial class – say for instance, acquisition of property from individuals for the purpose of Special Economic Zones, Industrial Parks etc. – and have it placed in the ninth schedule. Powerful arguments can be made out that this would be necessary for India’s economic growth. Equally conceivable is to have draconian laws infringing upon fundamental rights enacted in the name of national security and the need to confront terrorism. The developments in the United States following the attacks on the WTC and the enactment of the Patriot Act are an eye-opener. In India too, the POTA and TADA laws have been very harsh and were often misused. One of the true weaknesses of the democratic form of government is that in times of stress and national crisis, large sections of the electorate become victim to nationalist passions and think nothing amiss in the government denying basic civil liberties to minorities.

e) The ninth schedule began with the objective of shielding the land reforms legislation. Had matters rested here, perhaps things would not have come to this pass. However, the subsequent expansion of the schedule to encompass laws unrelated to land reforms has truly been a cause for concern. Some notable examples include:
The Mines and Minerals (Regulations and Development) Act, 1957; the Monopolies and Restrictive Trade Practices Act, 1969; the Coking Coal Mines (Emergency Provisions) Act, 1971; the Coking Coal Mines (Nationalisation) Act, 1972; The Sick Textile Undertakings (Taking over of Management) Act, 1972; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; the Essential Commodities Act, 1955;

Moreover, the MRTP act was one of the chief weapons in the hands of the license-quota-permit Raj and did much to stifle India’s economy. That such an absurd piece of legislation was, in its time, considered “progressive” suggests that there is no relying upon the absolute wisdom of the political establishment.


CONCLUSION
The Supreme Court judgement in the I.R Coelho vs. State of Tamil Nadu and Others case is a reiteration of the idea that the basic structure of the constitution should not be tampered with. In doing so, the court has only reclaimed its legitimate authority. At a time when the state is increasingly becoming an overbearing presence, the judiciary in India would do well to act as a forceful counterbalance. As for what happens when the judiciary fails in this function, we only need to look at the USA under the Bush Presidency.

Ira

Ira came into our lives on the 20th of April, 2005. I was at work in Silvassa and took a day off the next day to be in Baroda where she was born. Ira was of course very tiny. Her skin was all red and blotched, her eyes were like little slits and her head was oversized. She had no hair on her head, not even a hint of it. She was, however, recognisably human.

I went back the very same day. The next I saw her, a couple of weeks later, the skin had become clearer and there was now a hint of hair on that still ridiculously oversized head. She slept a lot and her waking hours were few. Since I was away at my place of work, coming down to Baroda once in a couple of weeks or so, I saw Ira grow up essentially as a series of snapshots taken at intervals.

Over the days, she had come to identify her mother, realizing instinctively when passed on to strange hands, including her fathers. I would sing to her and she would look at me intently, her judgment not having matured enough to identify poor talent. On occasions, she would even chip in with her own blabber.

The massage lady was her pet aversion. That even at two months, a baby can bring down the roof, I would not have believed had I not heard her. And then, it became worse. Even before the massage had begun, she was able to tell – by the lady’s voice, by the ambience of the bathroom – she was able to tell what was coming and she would howl in anticipation.

Looking back it all seems to have happened so fast. It was not so long ago, she was all red and blotchy. And now, she is a playful bundle with a finely developed sense of imitation and mischief, for whom life is mostly all play, a little cry and no work. She likes to be taken out for walks in her pram. She also likes to watch the older kids in the neighbourhood at play. She has a basketful of toys which we keep on a low table for her to reach at. It is her job to overturn it and spread the toys all over the floor. It is her mother’s job to pick up the lot and return them to the basket when she is done. She loves it when I toss her in the air, giving her a free fall for that fraction of a second. And sometimes, when I hold her up in mid-air, and she knows what is coming, her eyes light up with anticipation.

Since she sleeps till late, she wakes up alone and usually crying. On this day, I happened to be there, when she opened her eyes. She was silent for a long while, merely watching me as I went about getting ready to leave for work. And then, all of a sudden, she brought her hands together and it sounded like a clap. And she smiled at me. For Ira, a new day had dawned.

A fiasco celebrates its fourth anniversary

The Iraq chapter of George Bush’s war on terror has recently marked its fourth anniversary. What began as a spectacular success - within three weeks of the invasion, Baghdad was captured - is now widely acknowledged to be a disaster. The story is far from a conclusion. Yet, it is already a fascinating tale with valuable lessons not just for the US, but also for all countries with inclinations and pretensions to being a superpower, including India. Because Iraq, at a fundamental level, is a lesson in humility where arrogance and hubris have been seen biting dust. Somewhere along the way, in the course of its journey to the status of sole superpower, America had acquired notions of invincibility, made worse by a conviction among sections of its ruling clique that it possessed a monopoly over truth and wisdom as well.

Had it gone to script, this war would have wiped out the memories of Vietnam. Instead, in its fifth year now and with no end in sight, it has resurrected those very same ghosts. Every day, for the past three years, the US has been losing two or more of its soldiers. The steady drip of casualties has now badly eroded the initially euphoric support for the war. It has brought home to the people of America the harsh truth about the war, that contrary to what their government had been telling them all this while, it is not going well at all. And in these four years, America has learnt that there are limits to what even a “sole” superpower can do.

But, for all its troubles, Iraq might well turn out to be a salutary lesson for America. After all, the reason we do not poke our fingers into fire is the memory of what had happened the last time we had done that. The lessons and memories of Vietnam are now four decades old and faded. If only Iraq can serve as example that Americans would remember for the next four decades or so, not just America but the world as a whole would be a gainer. And that is a perverse vindication of an uncalled for war of choice that has already cost the lives of tens, if not hundreds, of thousands of Iraqi civilians.