Act of foresight

The debates in Parliament prior to the enactment of the First Amendment throw light on the factors that led to the creation of the Ninth Schedule.

THE Supreme Court's judgment in the I.R. Coelho case has given rise to misgivings that the very objective of creating the Ninth Schedule under Article 31B to keep out judicial review was flawed. The First Amendment was passed in 1951 by the Provisional Parliament, elected on a limited franchise, which had not limited its legitimacy to carry out constitutional amendments.

The Statement of Reasons (SOR) relating to the First Amendment said: "Challenges to agrarian laws or laws relating to land reform were pending in courts and were holding up large schemes of land legislation through dilatory and wasteful litigation." The First Amendment created the Ninth Schedule with 13 Acts under it. The SOR relating to the Fourth Amendment - which added a few Acts to the Ninth Schedule - records the fact that Articles 31A and 31B had succeeded in preventing the challenge under Articles 14, 19 and 31 to the zamindari legislation. More than these pious intentions, as officially recorded in these Amendment Bills, the debates in Parliament prior to the enactment of the First Amendment throw sufficient light on the factors that led to the creation of the Ninth Schedule. Several High Courts had declared zamindari abolition Acts beyond the powers of the Constitution, and there was all-round concern that the country's Judges had strayed beyond their jurisdiction. It is in this context that Prime Minister Jawaharlal Nehru made his oft-quoted statement: "Somehow we have found that this magnificent Constitution we have framed, was later kidnapped and purloined by lawyers."

Nehru set the tone of the debate in Parliament on May 18, 1951: "This question of land reform is under Article 31(2) and this clause tries to take it away from the purview of the courts and somehow Article 14 is brought in. That kind of thing is not surely the intention of the framers of the Constitution. Here again, I may say that the Bihar High Court held that view, but the Allahabad and Nagpur High Courts held a contrary view. There is confusion and doubt. Are we to wait for this confusion and doubt gradually to resolve itself, while powerful agrarian movements grow up? If there is agrarian trouble and insecurity of land tenure nobody knows what is to happen. Therefore, these long arguments and these repeated appeals in courts are dangerous to the state, from the security point of view, from the food production point of view, and from the individual point of view, whether it is that of the zamindar or the tenant or any intermediary."

On May 29, 1951, after the Select Committee submitted its report on the First Amendment, Nehru said: "It is not with any great satisfaction or pleasure that we have produced this long Schedule. We do not wish to add to it for two reasons. One is that the Schedule consists of a particular type of legislation, generally speaking, and another type should not come in. Secondly, every single measure included in this Schedule was carefully considered by our President and certified by him - every one, except the last one, I think, and that last one was independently examined by us quite a great deal. If you go on adding at the last moment, it is not fair, I think, or just to this Parliament or to the country." Nehru's reply was in response to some members who had given notice of amendments to add other laws to the Schedule.

There was no lack of conservatives who opposed the Ninth Schedule. Prof. K.T. Shah, a Member of the Constituent Assembly, appealed against it in order to "uphold the sanctity of the Supreme Court", and urged the government to validate the laws to be placed under the Ninth Schedule after the Supreme Court considered them on a reference by the President. But Nehru was categorical. He replied to the debate: "Millions wait and have been waiting for decades. Do you think that lawyers or any petty legal arguments are going to come in the way of these millions? Are we to submit to things and wait till some great revolution comes to change the condition of things?"

He further said: "The Constituent Assembly took great care to lay down that these changes should not be challenged in a court of law. In spite of this care, perhaps the language was not clear enough. That was our fault and so it has been challenged and these reforms have been in consequence delayed. Are we to wait for this delaying process to go on and for this process of challenge in courts of law to go on month after month and year after year? And the people who talk about waiting do not know what is stirring the hearts of those millions outside."

The external inspiration for the Ninth Schedule came from Ireland, where land had been unevenly distributed. Article 43 (2) of the Irish Constitution stated that the exercise of the right on land should be regulated by the principles of social justice.

As the Law Minister, Dr. B.R. Ambedkar explained to the House, the Irish law had appointed a separate board with the power to acquire land, to break up holdings, to equalise land, and to make uneconomic holdings economic ones by taking land from a neighbouring owner, and the right to assign compensation was given to this board. Ambedkar underlined the point that there was no judicial authority to interpret the action of this board and there was no appeal against the board's decision. "Some people took appeals to the courts, but they held that no appeals lay with any court," he told the House.

The rationale for Article 31B and the Ninth Schedule becomes clear on reading the Parliament debates on the First Amendment relating to the Ninth Schedule. It is not the fear of the judiciary striking down land reform laws that compelled the Nehruvian state to prevent judicial review of those laws, but its remarkable degree of impatience - characteristic of those early years following the achievement of freedom - with the conservatism of the judiciary.

Today, as the Indian state comes under growing pressures of neoliberalism and globalisation, the gap between political aspirations of the masses and the political leaders, and the attitude of the judiciary towards issues of governance become all the more striking than ever before. Today, the judiciary appears to be a willing participant in the reforms process and views any kind of protective umbrella in favour of the weaker sections with disdain and disapproval. Therefore, the rationale for the Ninth Schedule, as articulated by Nehru and Ambedkar in the early 1950s, continues to be relevant even today.

Contrary to the Ninth Schedule, whose genesis is rooted in the socio-political circumstances of the early years of the Indian Republic, the basic structure doctrine is often traced in the academic circles to a lecture given by a German scholar, Dieter Conrad, in 1965 in India on the "Implied Limitations of the Amending Power" (A.G. Noorani, "Behind Basic Structure Doctrine," Frontline, April 28, 2001). Conrad's lecture apparently influenced Chief Justice Koka Subba Rao in the Inder C. Golak Nath case.

The Supreme Court in its decision in the case on February 27, 1967, held that Parliament's power to amend the Constitution could not be used to abridge fundamental rights, in part because an amendment was deemed to be a `law' under Article 13, which prohibited Parliament from making any law abridging fundamental rights.

As the judgment in the I.R. Coelho case marks a return to the Golak Nath era, it is useful to recall details of that judgment. Justice Subba Rao, in his opinion for the majority, invoked the concept of implied limitations on the amending power. This precluded amendments that would destroy a Constitution. On the other hand, the dissenting judgment by Justices Wanchoo, Bhargava and Mitter held that all parts of the Constitution were subject to amendment, and that there was no such restriction under Article 13 as such as, according to them, an amendment cannot be treated as a law. Wanchoo rejected the contention that certain portions of a Constitution could be too basic to be amended. Were this admitted, "it would be only the courts which would have the power to decide what are the basic features of the Constitution, and this would result in a harvest of legal wrangles." (Granville Austin, Working a democratic Constitution: The Indian Experience; Oxford University Press).

As Granville Austin writes, the most significant element of the case constitutionally was the introduction in the hearings by the Golak Naths' advocates, principally M.K. Nambiar, of the `basic structure' concept. Hoping to defend their property interests by attacking the Constitution (17th Amendment) Act, they asserted that the word `amendment' implied an addition to the Constitution that improves or better carries out its purpose and "cannot be so construed as to enable Parliament to destroy the permanent character of the Constitution".

Moreover, the fundamental rights are a part of the basic structure of the Constitution and the amending power could be "exercised only to preserve rather than destroy the essence of those rights".

The Golak Nath ruling led to increased parliamentary authority to amend the Constitution. Through the 24th Amendment, Parliament restored to itself unfettered authority to amend the Constitution, including its repeal. Subba Rao resigned as Chief Justice on April 11, 1967, to run for presidency with the support of the Swatantra Party, which stood for property interests.

The genesis of the basic structure doctrine is perhaps a confirmation of what senior advocate Raju Ramachandran later wrote in Supreme But Not Infallible: Essays in Honour of the Supreme Court of India. The Indian judiciary, he writes, has used the basic structure doctrine mostly to protect judicial power. He argues that a weakened political class, anxious to show adherence to the rule of law has quietly acquiesced in judicial primacy, and the Supreme Court, armed with the ultimate power to annul amendments to the Constitution, has used the doctrine and lesser powers flowing from it, extensively.

Raju Ramachandran put it succinctly in his essay: "The basic structure doctrine proceeds upon a distrust of the democratic process, which itself must surely be part of the basic structure. In limiting the amending power, the basic structure doctrine in fact stifles democracy, a basic feature."