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India is predominantly an agrarian society of which three-fourth of total population is mainly dependent on agriculture and rural economy for their livelihood. Pre-Independence, a huge majority of population was living in rural areas and their living conditions were so deplorable as a result of policies of British Government. To cut out unhealthiest impediment to the progress of agrarian sector, Government of India moved a large numbers of land reform programmes in first and second five year plans with the objective to increase in agriculture production and economy.

These large numbers of land reform include Abolition of Zamindari System, allotment of land to landless, protecting the arbitrary ejectment of tenants, reduction in rental values of land, abolition of tax on agriculture, and the like.

Due to large number of land reform legislations passed by different states, problem regarding the validity of these legislations soon arose as these legislations initiated affected the fundamental rights of Zamindars provided under the Part III of Constitution of India. Also because of contrary opinion of High Courts of respective states in decides the constitutional validity of land reform legislations.

In order to remove such possibility of declared such laws invalid by Supreme Court and carry out such agrarian schemes INC Government under the leadership of ShriJawarlal Nehru brought first constitutional amendment bill of 1951 by which Article 31-A and 31-B were added and ninth schedule was incorporated in the Constitution of India to curtail the power of the judiciary in matter of land reform legislation.

Objects and reasons for the constitution (first amendment) Act, 1951

The object of this act is to securing the constitutional validity of Zamindars abolition law in certain from the action of judiciary. Article 31-A and 31-B are the exception to Article 13 of the constitution which immunize legislations from challenge on the ground of violation of Fundamental Rights. Though the law enacted by legislation under Article 31-B is violate part III of constitution but it is necessary to make such laws as constitutional valid in order to give effect to agrarian reform and to establish egalitarian society.

A very significant characteristic of Article 31-B is that it is having retrospective effect. As a result, any legislation which was declared unconstitutional by Supreme Court in violation of fundamental right, receive protection if that legislation is added to Schedule Ninth by Constitution Amendment and it is deemed to be constitutionally valid from the date of its inception. Once the legislation come under the protective umbrella of Schedule Ninth it gives blanket protection to all items enumerated in given schedule and its constitutionality cannot be challenged in any Court of law within territory of India as per the wording of Article 31-B which illustrate that “Without prejudice to the generality of the provisions contained in article 31A, 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 provision 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”. No protection is available to any order or notification made under the act include in Ninth Schedule except the original Act.

Misusing of Ninth Schedule

The very purpose of Ninth Schedule was to give protection to land reform laws for establishment of egalitarian society. Initially only 13 States act related to agrarian was added in Ninth Schedule to keep beyond the challenges in contravention of Fundamental Rights. But today the schedule contains as many as 284 entries by expanding the scope of the schedule to protect any statute made by parliament from judicial review.

Entry 257-A was added by the Constitution (Seventy-sixth Amendment) Act, 1994 provides 69% reservation of seats in Educational Institutions and of Appointments or Posts in the service under the state for Tamilnadu Backward classes, Schedule Caste and Schedule Tribes (contrary to the Supreme Court Judgement in IndraSawhney case which fixing the upper ceiling of 50% includes of all), in the ninth schedule against the very purpose of Article 31-B of constitution of India.

Only 249 entries are related to agrarian/land laws from the bunch of 284 entries and the remaining are related to insurance, coal, motor vehicle act, representation of people act, economic offences etc are added to Constitution only to escape the legislature from the clutches of judiciary for gaining their selfish motives.

Status in Pre I.R. Coelho’s Case

The Constitution Amendment (1951) was challenged firstly in case of Shankariprasad v. Union of India where two principle contention arose first whether Constitutional amendment under Article 368 are subject to Article 13(2) of the Constitution or not and second; does the first amendment act curtail jurisdiction of Supreme Court and High Court under Article 226, 132 or 136 of constitution to declare certain kind of laws void for the violation of Fundamental Right. Constitutional bench of Supreme Court unanimous rejects both contention and declared that the constitutional amendments made under Article 368 of the Constitution will not come within mischief of Article 13(2) of the Constitution of India and jurisdiction of courts are still intact and only certain classes of cases are excluded from operation of Art. 13. Thus first amendment act and powers of Parliament to abridge any right guaranteed under part III of Constitution by an amendment declared valid.

Again second attempt was made to challenge the principle laid down in supra i.e. “power of Parliament to amend the fundamental Right” in the case of Sajjan Singh v. State of Rajasthan. Petitioner raise two contentions first; the impugned amendment (Seventeenth Amendment) Act, 1964 was invalid as union doesn’t have power or jurisdiction to make laws on the subject matters of State enumerated in list II of Seventh Schedule and second; the impugned amendment purported to set aside the decision of Supreme Court by adding to Ninth Schedule, which declared invalid. Supreme Court observed the genesis of respective amendment and lookout the objective behind the amendment is to give effect to the economic policy to bring about much needed agrarian reforms and held that parliament is competent in making such amendment under article 368 only if the Parliament has power to amend Fundamental Rights. Court also upheld the constitutional power conferred by Article 368 on the parliament to exercise their power prospectively and retrospectively and upheld the validity of impugned amendment.

In case of I.C. Golaknath v. State of Punjab, validity of Constitution Seventeenth Amendment Act, 1964 was again challenged related to right to property issue. Supreme Court in the landmark decision overrule the Sankari Prasad and Sajjansingh Judgement with 6:5 majority and held that Part III of the Constitution is beyond the reach of amending power of Parliament. To protect large number of amendments declared invalid Supreme Court applied first time the doctrine of Prospective Overruling and held that this judgement will have only prospective operation and applied to only cases registered after this judgement, therefore 1^st, 4^th and 17^th amendments will continue to be valid.

Parliament enacted 24^th amendment to make decision unenforceable given in Golaknath case. This amendment added two new clauses in constitution; first is clause (4) to Article 13 which provides that nothing in this article shall be applied to any amendment of this Constitution made under Article 368 and second; clause (1) to Article 368 which provides that notwithstanding anything in the Constitution, Parliament may, in exercise of its constituent power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with procedure laid down in the Article. The sole objective of this 24^th amendment is to restore amending power of parliament.

The vires of 24^th amendment was challenged in landmark judgement of KeshavanandaBharathi v. State of kerala, where Supreme Court by 7-6 majority partially overrule the prior judgment of the same Court by upholding the power of Parliament given under article 368 of Constitution to amend any part of the constitution except the basic structure of Constitution. Justice Hans Raj Khanna asserted that the only amendments which tend to affect basic structure of Constitution are subjected to Judicial Review. And also Supreme Court upheld the doctrine of Prospective Overruling laid down in the Golaknath Judgement.

To limit the judgement of KeshavanandaBharathi Parliament came with a Constitution (42^nd amendment) act, 1976 which added two new clause, namely, clause (4) to Article 368 provides that “no Constitutional amendment (including the provision of part III) or purporting to have been made under Art.368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground” and clause (5) to 368 which provides for “removed any doubts about the scope of the amending power”. Intent behind this amendment is to grant an unlimited power to Parliament to make or amend any provision of the constitution under the garb of power granted under Article 368 of Constitution. Supreme Court under the duty to make justice struck down the clause (4) and (5) inserted through 42^nd amendment act in case of Minerva Mills v. Union of India. Court make it clear that the Constitution and not the parliament which is Supreme in India. The Parliament owes its existence to the Constitution and it cannot take priority over the Constitution.

In WamanRao v. Union of India, Supreme Court ruled that all act and regulation enacted in ninth schedule before 24^th April 1974 (i.e. judgement date of KeshavanandaBharathi) could not be challenged on the ground of inconsistent with any of the fundamental rights. But Acts and Regulation inserted in ninth schedule after 24^th April 1973 would not be protected by the reason of KeshavanandaBharathi case in which Court held that Constituent Amendment would invalid to the extent to which its derogate the doctrine of basic structure of Constitution.

-VIPIN AGARWAL

ANOOP BOSE

Advocate, Supreme Court of India

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