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OffStumped For All Things Right of Center, Bringing a Right of Centre Reality Check to Indian Politics, News Media Reporting and Opinion now in Hindi अब आप के लिये हिंदी मे.
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In a significant ruling, the Supreme Court on Thursday said the laws included in the Ninth Schedule of the Constitution after April 24, 1973 were now open to judicial review. The BJP today welcomed the Supreme Court’s ruling on the Ninth Schedule saying it would prevent the legislature from placing laws violative of the Constitution beyond judicial scrutiny. It is a different matter that several BJP leaders of the Delhi Unit of the party have been demanding that the law suspending court-ordered municipal drives against commercial establishments in residential zones of the capital be placed beyond judicial scrutiny. Reacting to today’s judgement, Law Minister H R Bhardwaj said the power of review has been granted to the judiciary only said “the judgement would have no adverse impact on the functioning of the executive”. One would have to take the Law Minister’s assertions with a pinch of salt for if anything, the ninth schedule had become the executive’s instrument to subvert constitutional provisions to curry political favor. 

Offstumped goes into the history of the ninth schedule and how it was abused over the years at the expense of our freedom and our fundamental rights. 

First some level setting. For years we had been told that the basic structure of the constitution cannot be ammended. We had also been told for years that the fundamental rights were what they were meant to be fundamental. So what do you think happens when the fundamental rights get in the way of the political agenda of the government of the day. You realize that you cannot ammend the constitution to change its basic structure but you have to preserve these laws that you made that were meant to favor some individuals while discriminating the righs of others. So what do you do ? You pass the First Ammendment to the world’s lengthiest written constitution. 

Remember the purpose of the constitution is to layout general and fundamental principles, articles of faith, values that we collectively share and believe in and which are meant to form the basis for law making. So when you have the lengthiest written constitution it is indication that somewhere in the process of laying out general principles we went about making a number of special provisions and exceptions to accomodate special interests. So what then was the motivation to ammend a constitution which was already diluted in its design with IFs and BUTs. 

The answer to this question becomes clear with a reading of the First Ammendment. The first ammendment was brought about by Pandit Jawaharlal Nehru, on 10th May 1951 to address judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. Nehru was also very clear on the purpose behind the first ammendment. The state wanted to pursue nationalisation, take away lands from the zamindars and re-distribute them and make special provisions for the socially and economically backward. Despite having architected the constitution, the lengthiest one at that, Nehru was not confident that the laws made to pursue these special interests of the state would stand up to judicial scrutiny on account of being discriminatory, hence the first ammendment.

It was the First Ammendment that brought in Articles 31A and 31B conferring upon the state the right to make laws to acquire private property and to then deem such laws as not being discriminatory and to further protect all such laws from any judicial review by creating something called the Ninth Schedule. It is interesting to note that the origins of the Ninth Schedule lie in land acquisition by the state, given the current political debate on SEZs and Singur, Nandigram.

Since the First Ammendment, the Ninth Schedule has been relied upon to ammend the constitution multiple times over. The 4th ammendment inserted six acts to the 9th schedule. The 17th ammendment added 44 more acts. The 29th ammendment brought in 2 acts from Kerala. The 34th ammendment in 1974 added 20 more land tenure and land reforms laws enacted by the states. In 1975 Indira Gandhi’s infamous abuse of executive power leading upto emergency saw the 39th ammendment adding certain central enactments. 1976 saw the 40th ammendment even more to the 9th schedule. The 47th ammendment in 1984 added more, and then in 1990 the 66th ammendment gave more protection to land ceiling acts. Which then brings us to the present dispute.

The 76th ammendment to accomodate Tamil Nadu Government’s legislation to provide for reservations to the level of 69 percent for SC/ST and OBCs. What takes the cake however is the 78th ammendment, which was about not just immunity to laws in 9th schedule, which was suspect, but ammendments to those laws and making those ammendments immune. Since then we have had absurd laws from Sugarcane supporting price to the New Delhi Urban Zoning Laws all clamoring for an exalted spot in the much abused Ninth Schedule.

So what did the Supreme Court rule on thursday. It said that laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Constitution. So what is the significance of 1973. Foremost is the landmark verdict in the Keshavanand Bharathi case when the supreme court for the first defined the concept of the basic structure of the constitution. Also if you look at the acts prior to 1973 in the 9th schedule they were primarily agrarian reforms. Most of the executive abuse started with Indira Gandhi’s actions prior to emergency and subsequent vote bank politics that saw absurd laws making their way to the 9th schedule violating freedom and imposing restrictions.

The Ninth schedule saga also highlights an important aspect of the Right of Center Political and Intellectual Movement in India. That for 34 years there was not a murmur of protest or legal challenge tells us that there is no Right of Center Movement in India. Yes there are some who claim to be for reforms and markets but these are individuals who see capitalism as an end in itself while missing the underlying fundamental principle of Individual Freedom. It is this same mindset that endorses the State’s pursuit of industrialization through SEZs on the basis of phony faith in capitalism while looking the other way as the State violates fundamental rights and individual freedom to acquire private property on behalf of private enterprises. This underlying intellectual contradiction sums up why there is no constituency for economic reforms in the country – because there is no fundamental belief in the primacy of individual freedom.

Offstumped Bottomline: By willingly ceding our freedoms to the State, we the people have allowed for the Ninth Schedule to thrive for decades. The 9th schedule has allowed for a perverse political culture curryed political favor to specific social groups and special interests. It has instilled a deep sense of entitlement in the politician to be able legislate just about anything to suit political interests, the constitution be damned.

The Supreme Court’s verdict is a welcome Judicial Antidote to the dubious politics of Social Justice.

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