JUDICIAL REVIEW OF THE NINTH SCHEDULE‌

Article 31B saves the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the Fundamental Rights. Article 31B along with the Ninth Schedule was added by the 1st Constitutional Amendment Act of 1951.

Originally (in 1951), the Ninth Schedule contained only 13 acts and regulations but at present (in 2016) their number is 282.11 Of these, the acts and regulations of the state legislature deal with land reforms and abolition of the zamindari system and that of the Parliament deal with other matters.

However, in a significant judgement delivered in I.R. Coelho case (2007)12 , the Supreme Court ruled that there could not be any blanket immunity from judicial review of laws included in the Ninth Schedule. The court held that judicial review is a 'basic feature’ of the constitution and it could not be taken away by putting a law under the Ninth Schedule. It said that the laws placed under the Ninth Schedule after April 24, 1973, are open to challenge in court if they violated Fundamental Rights guaranteed under the Articles 14, 15, 19 and 21 or the 'basic structure’ of the Constitution. It was on April 24, 1973, that the Supreme Court first propounded the doctrine of 'basic structure’ or 'basic features’ of the constitution in its landmark verdict in the Kesavananda Bharati case.13‌

While delivering the above judgement, the Supreme Court made the following conclusions:

1. A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine, or it may not. If former is the consequence of law, whether by an amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in the exercise of judicial review power of the Court. The constitutional validity of the Ninth Schedule laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test, i.e., rights test, which means the form of an amendment is not

the relevant factor, but the consequence thereof would be the determinative factor.

2. The majority judgement in the Kesavanand Bharati Case14 read with Indira Gandhi case15 requires the validity of each new constitutional Amendment to be judged on its own merits. 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 basic structure. The impact test would determine the validity of the challenge.‌

3. All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Articles 14 and 19 and the principles underlying them. To put it differently, even though an act is put in the Ninth Schedule by a Constitutional Amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the Fundamental Right or rights taken away or abrogated pertains or pertain to the basic structure.

4. Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Articles 14 and 19 by application of the "rights test” and the "essence of the right” test taking the synoptic view of the articles in Part III as held in the Indira Gandhi Case.16 Applying the above test to the Ninth Schedule laws, if the infraction affects the basic structure, then such a law or laws will not get the protection of the Ninth Schedule. When the triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the "essence of the right” test but also the "rights test” has to apply. There is also a difference between the "rights test” and the "essence of the right” test. Both form part of application of the basic structure doctrine. When in a

controlled constitution conferring limited power of amendment, an entire chapter is made in applicable, the "essence of the right” test as applied in Nagaraj case17 will have no applicability. In such a situation, to judge the validity of the law, it is the "rights test” which is more appropriate.

5. If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation / infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Articles 14 and 19 and the principles underlying them.

6. Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.

The number of acts and regulations included in the Ninth Schedule before and after April 24, 1973 are mentioned below in Table 27.1.

Table 27.1 Number of Acts and Regulations Included in the Ninth Schedule

Note: Entries 87, 92 and 130 have been omitted by the Forty- Fourth Amendment (1978).