LEGAL ARCHIVES SERIES FROM THE MEDIA
V. VENKATESAN IN THE FRONT LINE
Supreme Court weakens the constitutional protection to progressive laws by making laws in the Ninth Schedule vulnerable to legal challenge.
THE strength of the Indian Republic can be said to rest on the doctrine of separation of powers between the legislature and the executive on the one hand and the judiciary on the other. On January 11, the dynamics of this doctrine revealed a clear tilt in favour of the judiciary, with the Supreme Court appropriating to itself the power to pronounce on the legality of the laws enacted by Parliament with in-built immunity from the consequences of their impact on fundamental rights. The Court did so when a nine-Judge Bench sought to resolve a 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 in I.R. Coelho vs State of Tamil Nadu and Others. Article 31B, inserted by the First Amendment to the Constitution in 1951, says that none of the Acts and Regulations specified in the Ninth Schedule shall be void on the grounds of inconsistency with the fundamental rights guaranteed under the Constitution.
The Bench unanimously held that even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the grounds that they pertain to what the judiciary interprets as the basic structure of the Constitution. The Bench virtually opened a Pandora’s box by suggesting that all laws inserted under the Ninth Schedule after April 24, 1973, can now be challenged by anyone for perceived violation of fundamental rights that might affect the basic structure of the Constitution as interpreted by the judiciary.
The Ninth Schedule comprises 284 Acts and Regulations, of which almost 218 were inserted after April 24, 1973. All these 218 laws have now become vulnerable to legal challenge on the grounds of violation of the basic structure doctrine, evolved and interpreted by the Supreme Court in the celebrated Kesavananda Bharati case on April 24, 1973.
The cut-off date is significant. It was on this date that the Supreme Court’s 13-Judge Bench laid down for the first time, with a razor-thin majority of 7:6, the doctrine of the basic structure of the Constitution. The doctrine held that Parliament cannot exercise its amending power so as to damage or destroy the basic structure of the Constitution. Several Acts were put in the Ninth Schedule prior to that judgment on the supposition that the power of Parliament to amend the Constitution was wide and untrammelled. The Supreme Court, in a subsequent judgment (Waman Rao) said: “A large number of properties must have changed hands and several new titles must have come into existence on the faith and belief that the laws included in the Ninth Schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We will not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society.” Most of the Acts included in the Ninth Schedule by that date dealt with agrarian reform, with a few exceptions such as items 17, 18 and 19 which relate to insurance, Railways and industries.
In this case, the Supreme Court held that the post-April 24, 1973, additions to the Ninth Schedule were open to challenge on the grounds that they, or any one or more of them, were beyond the constituent powers of Parliament since they damaged the basic or essential features of the Constitution or its basic structure.
The post-April 1973 expansion of the Ninth Schedule has apparently caused dismay to many observers, mainly because of the large number of Acts and Regulations that have been added. In other words, the concern of the critics of the Ninth Schedule appears to be over the quantity rather than the content of these laws. Even the Supreme Court in its January 11 judgment has not analysed the nature and character of these laws to throw light on whether they indeed deserve protection from legal challenge on the grounds that they violate fundamental rights. The judgment makes only one point: that many additions are unrelated to land reforms. But this does not answer the question whether laws unrelated to land reforms, yet progressive in nature, would not require similar protection.
Certain laws might have been enacted prior to April 1973, but put under the Ninth Schedule subsequently in order to rule out any legal challenge to their validity, in view of their importance from the socio-economic perspective.
The nine-Judge Bench, however, showed no interest in analysing these laws under the Ninth Schedule. Instead, it expressed dismay about the quantity of laws under the Schedule: “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.”
A sample of such laws would be of interest: 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; the Bonded Labour System (Abolition) Act, 1976; and so on. All these laws, which have contributed to social and economic justice, are open to legal challenge following the Supreme Court’s judgment.
Contrary to what one would assume, the addition of laws under the Ninth Schedule is not a frequent exercise by Parliament. The last addition to the Schedule was in 1995, when Parliament enacted the 78th Amendment, adding a few State Acts and bringing up the total number of statutes to 284.
The nine-Judge Bench clearly said that the validity of Article 31B is not in question before them and that a mere possibility of abuse is not a relevant test to determine the validity of a provision. Having said that, however, the Bench precisely does the same: it renders Article 31B redundant merely because of its hypothetical fears, and this is clear from its illustrations.
The judgment, written by the Chief Justice Y.K. Sabharwal, a day before his retirement, on behalf of the entire Bench, says: “When entire Part III (dealing with Fundamental Rights) is sought to be taken away by a Constitutional amendment by the exercise of constituent power under Article 368 by adding the legislation in the Ninth Schedule, the question arises as to the extent of judicial scrutiny available to determine whether it alters the fundamentals of the Constitution. Secularism is one such fundamental, equality is the other, to give a few examples to illustrate the point. It would show that it is impermissible to destroy Article 14 and 15 or abrogate or en bloc eliminate these Fundamental Rights. To further illustrate the point, it may be noted that the Parliament can make additions in the three legislative lists (Union, State and Concurrent) but cannot abrogate all the lists as it would abrogate the federal structure.”
There can be no dispute about this reasoning. The difficulty is only when the Bench adopts the same “possibility of abuse” test to leave Article 31B completely toothless. The Bench goes on:
“If constituent power under Article 368, the other name for amending power, cannot be made unlimited, it follows that Article 31B cannot be so used as to confer unlimited power. Article 31B cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. This power of amendment has to be compatible with the limits on the power of amendment. This limit came with the Kesavananda Bharati case. Therefore, Article 31-B after April 24, 1973, despite its wide language, cannot confer unlimited or unregulated immunity.”
The Bench continued its hypothetical journey further regarding the imaginary abuse of Article 31B:
“To legislatively override entire Part III of the Constitution by invoking Article 31-B would not only make the Fundamental Rights overridden by Directive Principles but it would also defeat fundamentals such as secularism, separation of powers, equality and also the judicial review which are the basic feature of the Constitution and essential elements of rule of law and that too without any yardstick/standard being provided under Article 31-B.”
In making these observations, the nine-Judge Bench has clearly gone beyond its mandate. What is curious is that the order of reference made to it in 1999 in the I.R. Coelho case still remains unanswered by the Bench despite this elaborate reasoning.
It is necessary to dwell a bit on the hearing of this case by a five-Judge Bench in 1999. In this case, the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam estates in Tamil Nadu, was struck down by the Supreme Court in 1972 because it was, according to the Court, not a measure of agrarian reform protected by Article 31A of the Constitution. (Article 31A deals with the saving of laws providing for the acquisition of estates, and so on.)
Section 2-C of the West Bengal Land Holding Revenue Act, 1979, was struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional, and a special leave petition filed against the judgment by the State of West Bengal was dismissed.
The Constitution 34th Amendment Act inserted the Janmam Act in the Ninth Schedule in 1974. The same Act added 19 other State Acts concerning land ceiling and land tenure reforms to the Ninth Schedule. The Constitution 66th Amendment Act added the West Bengal Act in the Ninth Schedule in 1990. These insertions were the subject matter of challenge before a five-Judge Bench.
The contention before this Bench was that the statutes, inclusive of the portions thereof that had been struck down, could not have been validly inserted in the Ninth Schedule. The Bench found it difficult to decide the issue without the help of clear case law on the subject. The only relevant precedent was the Supreme Court’s judgment in Waman Rao & Others vs Union of India in 1981, in which the Court held that the post-April 24, 1973 additions to the Ninth Schedule were open to challenge.
The Bench in the 1999 I.R. Coelho case observed that the judgment in Waman Rao needed to be reconsidered by the nine-Judge Bench in view of certain inconsistencies. Specifically, the reference to the nine-Judge Bench was to decide whether an Act or Regulation which, or a part of which, is or has been found by the Supreme Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck down. In other words, the validity of Article 31B was never an issue in the Waman Rao or I.R. Coelho cases.
But the nine-Judge Bench distorted the fundamental question before it: “The fundamental question is whether on and after 24th April, 1973 when basic structure doctrine was propounded, it is permissible for the Parliament under Article 31B to immunise legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the court.” As a result, the basic reference which resulted in the constitution of the nine-Judge Bench in the case remains unanswered.
Having not answered this essential reference, the nine-Judge Bench went beyond its mandate and created a golden triangle of Articles 14, 19 and 21 and said these Articles would form the touchstone of the basic or essential features in Part III of the Constitution, dealing with fundamental rights. Article 14 deals with equality before law, while Article 19 and 21 deal with the right to freedom. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys the basic structure, the Bench held.
This creation of the golden triangle of three fundamental rights has led some observers to conclude that the country is back to the Golak Nath era. The Golak Nath judgment was delivered by the Supreme Court in 1967 – like the Kesavananda Bharati case – by a razor-thin majority of 6:5.
The majority in Golak Nath held that the fundamental rights were non-amendable through the constitutional amending procedure set out in Article 368. They said that the fundamental rights occupy a “transcendental” position in the Constitution, so that no authority functioning under the Constitution, including Parliament exercising the amending power under Article 368, would be competent to amend them.
The Golak Nath judgment confined itself to fundamental rights and did not cover other important parts of the Constitution while considering Parliament’s amending power. According to the Kesavananda verdict, however, even a fundamental right can be amended or altered provided the basic structure of the Constitution is not damaged in any way. But it did not specify which of the fundamental rights would form part of the basic structure, leaving the issue to be decided on the facts and circumstances of each case. This flexibility was occasioned by the realities of the 1970s, when Parliament enacted a number of socio-economic laws for the welfare of the people.
Again, there is a debate among legal scholars on the position of Justice H.R. Khanna, who was among the 13 Judges in the Kesavananda Bharati case and who tilted the scales in favour of the majority. The curious thing is that Justice Khanna sided with the majority Judges on the basic structure doctrine, but sided with the minority Judges while upholding the 29th Amendment, unconditionally. The 29th Amendment, enacted in 1972, added two Kerala Acts dealing with land reforms in the Ninth Schedule, and this was the subject matter of challenge in the Kesavananda Bharati case. Some scholars and the nine-Judge Bench that heard the reference in the I.R. Coelho case believe that Justice Khanna did not exclude fundamental rights from the purview of the basic structure. But they believe so on the basis of Justice Khanna’s later clarification about what he meant in another case. Other scholars refuse to adopt this reasoning on the basis of a subsequent clarification by a Judge whose decision was crucial to the outcome of the case. Justice Khanna did not find any infirmity in the 29th Amendment and joined the six Judges who did not endorse the basic structure doctrine to uphold the Amendment. But Justice Khanna also opined in the judgment that fundamental rights could be amended, abrogated or abridged so long as the basic structure of the Constitution is not destroyed. Ironically, despite this seemingly inconsistent stand of a Judge in the Kesavananda Bharati case, which influenced its outcome, the judgment has been relied upon to interpret the validity of laws inserted in the Ninth Schedule.
The I.R. Coelho judgment of the nine-Judge Bench is disturbing because it emphasises fundamental rights over the directive principles of the Constitution at a time when the neoliberal agenda of the state is being endorsed in various judgments of the Court. At one place, the Bench opines that it is wrong to suggest that equity and justice finds a place only in the directive principles. One wonders whatever has happened to the Supreme Court’s earlier emphasis on maintaining the fine balance between fundamental rights and directive principles.
In its over-enthusiasm to shield fundamental rights from imaginary challenges from the state, the Supreme Court has obviously overlooked a key Directive Principle of State Policy as enshrined in Article 38(2), inserted by the 44th Amendment in 1978 when the Janata Party was in power, following the repeal of the Emergency. It directs the state to strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. The objective of this Amendment is that the fundamental right to equality under Article 14 cannot be divorced from the larger question of egalitarianism. Indeed, it is egalitarianism that gives meaning and content to the right to equality.
Says Indira Jaising, senior advocate of the Supreme Court and an eminent commentator on constitutional issues, on the news portal, rediff.com: “The judgment is likely to have devastating results and raises several questions. The final arbiter on what are fundamental rights, what amounts to a violation of fundamental rights and what are the basic features of the Constitution is now the Supreme Court. It makes the Supreme Court one of the most powerful courts in the world and also one of the most unaccountable, as it is a self-nominated judiciary.”