HT FAQ on Ninth Schedule and Basic Structure

Ninth Schedule was added to the Constitution to give a ?protective umbrella? to land reforms laws, reports Satya Prakash.

What is Ninth Schedule?

Ninth Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B with a view to give a “protective umbrella” to land reforms laws to save them from being challenged in courts on the ground of violation of fundamental rights.

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(According to Article 13 of the Constitution, the State shall not make any law inconsistent with the fundamental rights and any law made in contravention of fundamental rights shall be void to the extent of the contravention.)

What is the importance of Article 31-B?

Article 31-B saves conflict of laws with fundamental rights by giving validation based on “fictional immunity” that laws enacted under it and placed in the Ninth Schedule are immune to challenge in a court of law even if such a law violated fundamental rights.

What was the challenge?

The petitioners had challenged various laws placed in the Ninth Schedule on the ground that any law violating fundamental rights should be struck down as “unconstitutional” and that the court’s power of judicial review can not be taken away.

What did the SC Constitution Bench say?

a) The SC upheld the validity of Article 31-B and Parliament’s power to place a particular law in the Ninth Schedule.
b) But it said laws placed in the Ninth Schedule are open to judicial scrutiny and that such laws do not enjoy a blanket protection.
c) Laws placed in the Ninth Schedule after the Keshwanand Bharti Judgment on April 24, 1973, when it propounded the “basic structure” doctrine, were open to challenge.
d) If the SC has already upheld the validity of any Ninth Schedule Law, it would not be open to challenge such a law again on the principles declared in the latest judgment delivered on January 11, 2007.
e) All actions taken or transactions finalized, as a result of the impugned Acts shall not be open to challenge.
f) It laid down dual test to examine the validity of a Ninth Schedule Law i.e. first check whether it violates any fundamental right and if yes whether the violation also damages or destroys the basic structure. If the answer to both the questions is in the affirmative, then only a law placed in the Ninth Schedule can be declared unconstitutional.

What is Basic Structure of the Constitution?

In the Keshwanand Bharati case, a 13-judge Constitution Bench of the SC propounded the “basic structure” doctrine. While upholding Parliament’s power to amend the Constitution under Article 368, the SC said that it was a limited power subject to judicial review.

The court also said that by using the power to amend the constitution, Parliament can not alter its basic or essential features like federal structure, separation of power between the three organs of the states, judicial review etc.

Since then the court has added many other features to the list of basic features like secularism etc.

Email Satya Prakash: satya.prakash@hindustantimes.com