Tuesday, April 24, 2007

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.

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