August 1, 2021

Judicial Review in the Light of 9th Schedule: A Comprehensive Study


Article 31-b of the Indian constitution empowers the 9th schedule in regard to exemption from judicial review, for the purpose of social/economic development, that was the time when India got independence from Britisher, and adopted our Indian constitution for the liberty of internal affairs, India being inclined towards the socialist ideology, we adopted the features of social, political and economic justice in the beginning of preamble part, but somewhere it was mere a statement, seems not attainable without a proper legislation, for the accomplishment of social and economic justice it was an immense need of land for the purpose of agriculture or industrial development due to the presence of landlord and their malpractices towards the society lead to unaccomplished these goals of social & economic justice, but Indian parliament decided to make some reforms regarding agrarians development but judicial review was the hindrance concern of the acquisition of property ,as there were right to property (fundamental right).

In 1951 parliament amended the constitution of India for the first time and added the most awaited 9th schedule and 31-b in the Indian constitution, which empower the acquisition of property without any constitutional remedy in the court of law, because 9th schedule was immune from the judicial review, banded the hand of the Indian judiciary to exercise the jurisdiction in the case of acquisition of landlord property for the social development. But thereafter agrarian’s development mission turned into a conflicting story between the parliament and Supreme Court through the landmark cases and amendments, which I am going to discuss in detail in my article. Sometime later 9th schedule was misused by the legislator for the political gain & against the foundation of democracy. After the years of conflict between the legislator & judiciary, finally, Supreme Court tried the best to maintain the balance of power in the case of IR Coelho, held that after 24 April 1973, Supreme Court can exercise their judicial review in case of violation of Basic Structure even after the law placed in the 9th schedule. Because judicial review itself is a basic structure so it can’t be wholly confined.

If yes then maybe Hon’ble court will become a horrible court of justice. Conflict of judicial review started from Sankari Prasad Case. In Indian constitution the power of judicial review is for special law too otherwise it would be against the foundation of constitutionalism which exist in the Indian constitution, the contention of the supreme court in the case of IR Coelho was supportive to the principle of constitutionalism which stated that the judicial review cannot be confined in itself, as in the case of Minerva Mills Case SC said that parliament has exclusive power to legislate but must go together with the public policy and should not be inconsistency with the basic structure or established foundation stone of the constitution of India, which includes the judicial review under Article 137 of the constitution.

The prima facie reasoning behind the amendments of parliament was to create a one-sided power of legislation in the hand of legislator only, in 24th amendment was the best example of this notion of parliament, in which added the clause 4 of article-13 and clause 2 & 3 in article 368, the main aim behind this legislation was that to exclude the amendment made under article 368 from the preview of law under article 13, to make the law whatever they want without judicial interference because review could be possible with the law only as per article 137. I am going to discuss the entire step taken by both the super systems of the country. The second reason behind this research article is to present the real ideas and notion behind the judicial review in regard to the ninth schedule, I will present through the cases whether the judicial review of the 9th schedule is available in the real sense or not.

Introduction /Historical Background

It was essential to change the law relating to the ownership of land to perceive the development of the agrarian, for a country. After independence planning commission was set up to achieve the goal of agriculture and industrial development but look like it was also failed to accomplish the goal because a country like India is totally dependent on agriculture or industrial required plot of land, it was only possible with legislation, the idea of 9th schedule was presented before the parliament, K.T SHAH who was the member of the constituent assembly, opposed the idea of 9th schedule[1].

The external inspiration of 9th schedule came from Ireland, where land been distributed to the community as per the ARTICLE- 43(2) of the Irish constitution[2], contended that ownership of land is regulated in regard to the principle of social justice only for the community welfare, Ireland being a socialist country this legislation is much needed as to abolish the concentration of wealth or property, because as per the theory given by A great philosopher PLATO property is the only reason for the development of crime and envy in the society so that he presented the idea of the community of ownership in between 428 BC TO 348 BC.

Finally, after discussion in the parliament in 1951 1st amendment passed with 238 yes or 7 not and sent for the recommendation of the president on 18th June 1951, the thus first constitutional amendment passed for the aim of agrarians development and abolition of zamindari system, this larger program involved taking steps for the protection of tenants from arbitrary ejectment, the government started distribution of land to the landless poor people, or reduction or lagan or rent or taxes on the poor farmers by the landlords, that is the reason why this exploitation is known as exploitation by the farmer to the farmer.

Co-operative farming was introduced in the states, this agrarian legislation becomes boon to the farmers and efforts towards the reforms in the area of socio-economic conditions in the country. Utmost priority is given to the agrarian’s development in free India; accordingly several states passed the land reform acts for the eradication of poverty or abolition of the zamindari system and the land ceiling institution. However, new conditions arose regarding these reforms in the context of fundamental rights because lands reforms act affected the rights to property of zamindars, conferred in article 19(1)(f).

Therefore, various petitions were filled by the zamindars in their respective high courts on the ground of violation of fundamental rights conferred in part III of the Indian constitution. In 1950, three petitions were filed to challenge the constitutional validity of land reforms act in the Allahabad high court and Nagpur high court or Patna high court, two were upheld and Bihar land reform declared unconstitutional[3]. But person deprived by the order of high courts of Allahabad and Nagpur filled writ petition under article 32 directly before the Supreme Court. But that time under the leadership of pm Jawaharlal Nehru presented the idea of amendment of the constitution in 1951.

Objective Behind The 9th Schedule

  • The major aim was the agrarian’s reforms and Abolition of jamindari system in the country and spread the fragrance of socio-economic reform in the country.
  • Abolition of jamindari system and intermediaries in the institution of agriculture.
  • Remove evil in the society by eradicating poverty.
  • No petition can be entertained by the court in case of acquisition of property and violation of fundamental rights.
  • Upliftment of weaker section especially who are concerned with agriculture.
  • Reduces the concentration of wealth in the form of land or exploitation to the poor people of the society.

Nature and Scope of Article 31-B in Regard to Ninth Schedule

Today 9th schedule becomes constitutional dustbin and place for any inconsistence law passed by the parliament and receive protection or immunity from judiciary, art-31-b and 31-a are intended to regulate the protection against which could otherwise means breach of constitution. Legislation falling under any part of the 31-a receives the protection under art-31-b, if either condition satisfied then there is no bar to legislation and receive double protection. In this context we will understand the relation between 31-A & 31-B, the wording of art- 31-B (without prejudice to the generality of the provision contained in the article 31-A)[4] it reflects the inter-connection between art- 31-a & 31-b, 31-b read with the 9th schedule is particularization of 31-a itself. 9th schedule become the weapon of protecting invalid or inconsistence laws. In vishweshwara v. state of Madhya Pradesh[5], the court observed that both article 31-b and 31-a is independent, thereafter the opening word of art-31-b were interpreted by the supreme court in N.B jeejeebhoy v. assistant collector, Thana[6]

As implying that “act a regulation specified in the 9th schedule would have the immunity even if they did not attract art- 31-A of the constitution”. One question arose that law placed in the ninth schedule are unrelated to estate as per the wording of art- 31-A(2), hence conclusion is that art- 31-B was not regulated as per the art- 31-A.

Above reasoning is misleading the scope of 9th schedule the true conclusion was dawn by the J. PN BHAGWATI in Minerva mills v. union of India[7], when it was held that ninth schedule of art- 31-b would not include laws other than contained in art-31-A. By this interpretation Hon’ble justice interpreted the phrase “without prejudice to the generality of art- 31-A can be arrived at in the following way. It extends to five types of law only, clause (a-e) of its first clause. The kind of law which is entitled to protection under art-31(b) is necessarily entitled the protection under art- 31-A, although there may be many laws under art- 31-A which are not covered by art- 31-b, e.g. which are not included in the ninth schedule. The scope of article 31-b is wider in nature an application than art- 31-a, as 31-a is limited to law related to property only, but 31-b is not only stand as independence of art- 31-a as well as validate the inconsistence laws and protect those laws from judicial review.

Retrospective Effect of Article- 31-B

It is very important characteristics of art- 31-b that it has retrospective effect. It means if any law declared void by supreme court on any ground of violation of fundamental rights, it will receive protections under 9th schedule if introduce in that constitutional dustbin[8]. Any act cannot be declared void after putting into the 9th, in state of Uttar Pradesh v. Brijrnder singh[9] supreme court observed the above facts. It becomes easy for the parliament to validate any law after being unconstitutional by putting such law into the 9th schedule of the constitution. That’s why it is also known as protective umbrella, once law putted into 9th schedule cannot challenge in any court as per art- 31-b[10].

Protection of original act include in the 9th schedule. In Prag Ice and Oil mills v. Union of India[11], held that order and notifications made under any acts in the 9th schedule cannot get protection. Because, those are not the parts of the original acts.

Conflict Between Parliament and Supreme Court: Case Study

There were various conflicts happens regarding the jurisdiction and the ninth schedule of the constitution, parliament wanted to make judiciary silent on the matter of acquisition for the betterment of society, on the other hand supreme court was continuously making an attempt to maintain the balance of power or equilibrium in the country, in context of supreme court was that the citizens shall not deprive their fundamental rights or basic inalienable rights conferred by various piece of human rights like- Magnacarta, and charter of Universal Declaration of Human Rights.

Conflicts between the parliament and judiciary begins from case of Shankari Prasad vs Union of India[12], in this case challenged certain land reform act which was inserted into the ninth schedule, and violated the fundamental rights of the citizens, the main issue argued before the supreme court in the case was, “whether constitution law include under the meaning of law under article- 13 of the constitution or not?” Hon’ble justice patanjali sastri said that the meaning of law under article 13 include only substantive part of law hence constitution law is not a substantive part of law so doesn’t come under the preview of article- 13, hence parliament has exclusive power to amend the fundamental rights irrespective of the community concern or protection of rights.

Same things were held in the case of Sajjan Singh vs State of Rajasthan[13]. Till that time total 39 acts were placed in the 9th schedule, by the various amendment like- 1st, 4th , 17th all these amendments regarding the acts inserted into the 9th schedule were challenged in the case of I C Golakhnath v. State of Punjab[14], Supreme court held all these there constitutional amendment unconstitutional, legislative system of the country were unhappy with this approach of the Indian judiciary, now conflict become more twisted parliament stated making new amendments and act or supreme court reviewed or continuously declared unconstitutional.

After being declared 1st, 4th, 17th amendment unconstitutional in Golakhnath case subsequently parliament was eager to give the answer back to Indian judicial system by the weapon of amendment power, in the 24th amendment act parliament added clause (4) in article 13 and clause (2) (3) of article 368, as per the wording of this added clause stated that amendment would not be come under the meaning of law under article- 13 of the constitution, now parliament made the way for acquisition of land by the way of amendment now amendment is not law so there was no any tension of judicial review because it can be done with law only, further in 25th amendment act parliament added that any law made with regard to sub-clause (2) & (3) of the article-39 of the constitution, then it cannot enforce the art- 14 & 19 of the constitution, hence parliament can acquire anyone’s property and no any litigation will be instituted in the court of law regarding the violation of fundamental rights.

Thereafter, too many petitions were filled in the court; Keshwanand Bharati Case[15] came into picture the largest 13 judge benches constituted with aim to resolve all the conflicts and dictatorial tendency of the parliament. In this case held that parliament can amend anything even in regard to fundamental rights but parliament does not have rights to violate the basic features of the constitution.

Or even can’t put any law in the 9th schedule or make it violative, it would be examined by the court. Till that parliament did not calm down subsequently in 39th amendment act added clause-(A) in the article 329[16], and amended that, bar to interference by court in electoral matter as well as put nationalization act into the 9th schedule, this is what started misusing the 9th schedule, it was the gross violation of judicial review and after being held deficiency in the Indira Gandhi election it was challenged in the case of Indira Nehru Gandhi v. Raj Narain[17], held 39th constitutional amendment unconstitutional on the ground that it was violating the judicial review, which is essential features of a democratic country[18].

Minerva mills was a recognized textile industry in the state of Karnataka, engaged in the mass production of silk clothes, therefore central government appointed a committee u/s- 15 of the industries (development and regulation) act, 1951 for analyzing a full working affairs report of the Minerva mills, after being completed the report central government relying on that report and empowered the national textile corporation limited to take over the management and affairs of Minerva mills u/s- 18A of the act. Earlier discussed that through the 39th amendment act parliament inserted the nationalization act into ninth schedule, that act totally escaped from judicial review.

The main issue argued by the petitioner’s is that the scope of article 368 is just to amend the constitution in a way such that there is no change in the basic structure of the constitution. The landmark judgment came on July 31, 1980. Passed in 4:3 ratios, J. Bhagwati struck down section- 55 of the 42nd amendment act, the court beautifully explained the importance of judicial review in a democratic country; hence it could not be confined. The Hon’ble court relied upon the judgment of Keshwanand Bharati Case[19] said that power to amend under article 368 is not power to destroy the basic structure of the constitution.

Conditions of Pre I.R Coelho’s Case

Through the first constitution amendment art-31-B read with ninth schedule inserted in 1951, was challenged in the case of Shankari Prasad v. union of India[20] two things were argued before the court. In the first place it was urged that constitution maker had in mind of art-11 of the Japanese constitution declaring certain rights to be “eternal and inviolate[21]” and also art- 5 of the U.S Constitution[22]. And secondly whether the constitution law comes under the preview of law under art- 13, if yes then definition must include the prohibition of art- 13(2). Five judge benches rejected the contention made by petitioners and the court pointed out that the parliament has wide power to amend the constitution under art- 368 of the constitution without any exception or whatever. Hence, amendment made under article 368 will not come within the mischief of art- 13(2). First amendment upheld by the apex court[23].

After fifteen years of the constitution another attempt was made to challenge the power of parliament to amend the fundamental rights in Sajjan Singh v. State of Rajasthan[24], challenged the 17th amendment act 1964 as petitioners were affected by one or the other acts, added into the ninth schedule by the 17th amendment act. The court held that power of parliament to validate the state acts, by amending the definition of ‘estate’ in art-31-A by the constitution 17th amendment act. It was noted that parliament amend the art-31-A & 31-B to adopted by certain states to give effect to the policy of agrarians reforms, observation made by the court was that the amendment made in order assist the state legislature in the area of economics and much needed agriculture reforms, pith & substance test were applied but finally the court upheld the validity of amendment.

Now I.C Golakhnath v. State of Punjab[25] came into picture with the same motive to challenge the 17th amendment act, in this case court carefully examined the three amendment act e.g. 1st, 4th, 17th; all these amendments were declared valid by the Supreme Court and applied prospective overruling so it could not give effect to retrospective amendment. From the date of the decision parliament has no power to amend the part-III fundamental rights of the constitution. Now parliament decided to resolve the difficulty made by the court in the case of Golakhnath v. State of Punjab [26] subsequently parliament amended the 24th amendment act and added clause-4 of art-13 to give effect that amendment would not come under article 13, hence any amendment made by parliament would not be law from the date of 24th amendment act.

If amendment would not come under the meaning of law then it would be free from judicial review because judiciary can only review law as per article- 137. Now parliament can amend anything they want, this amendment was challenged in the very landmark case Keshwanand Bharti v. State of Kerala[27], Kerala land reform were also challenged which was added in the 9th schedule by 29th amendment act. The question argued and issued framed was the question of extent of amending power the parliament under article-368, the largest 13 judge benches constituted to hear the issues and overruled the golakhnath case and held that parliament has power to amend the constitution as well as fundamental rights but not empower to amend the basic structure.

Thereafter, 42nd amendment came and amended the two clauses under article- 368, firstly that no constitutional amendment can be called in any court on any ground. Secondly clause- 5 of art- 368 there shall be no any limitation on the power of the parliament to amend the constitution[28]. By inserting these two clause parliament made it clear that parliament can amend basic structure also[29], In Minerva mills case[30] declared these two clauses unconstitutional and held that it was violative of basic features of the constitution, and it removed the contention made by 42nd amendment that unlimited power of parliament to amend the constitution. It is very healthy for democratic to have limitation on the legislative power of the parliament[31].

In Waman Rao v. Union of India[32], court held that law put into the 9th schedule before 24th April 1973, would not be open to challenge and it is prospective in nature, it will be applicable only that law which is passed after 24th April 1973.

Lastly in 2007 in I.R Coelho Case[33], if any law put into the ninth schedule after 24th April 1973, whether violative of basic features or not court will have power or jurisdiction over that act or amendment in regard to judicial review. Same thing of Waman Rao case was reconsidered in this case in elaborative form.

Condition of Ninth Schedule in Post I.R Coelho Case – Subject to Judicial Review

In the above study made by the researcher is showing that confrontation between the parliament and supreme court was going from the decades, in this case supreme court made a landmark attempt to end the politico-legal confrontation between the parliament and the supreme court by brought the parliament into the preview of judicial review and held the importance of judicial review in the above cases, now post the 1973 era 9th schedule is open to attack by judiciary on any ground[34], such laws which violate the basic structure even after put into the ninth schedule, such law will not get the umbrella protection by escaping from the examination of Indian judiciary but are open to challenge in the court of law.


From the above discussion it is observed that judicial review was always a conflict in front of parliament, parliament tried their all power to make is valueless but our Indian judicial system always tried their best to maintain the balance of power between the politico-legal conflicts. The reason behind the effort towards the exclusion of judicial review was that the right to property was earlier considered as fundamental rights, in order to enforce these rights zamindars and landlords always fought in the court of law and questioned their availability of fundamental rights. Somewhere it was the hindrance for the Indian legislature. When the first amendment came by adding the 31-b and 9th schedule of the constitution, there was only aim to reform the agrarian’s reforms in the country and abolish the zamindari system in the country but later on abuse of ninth schedule started after 4th amendment 7 laws were added to the ninth schedule out of 3 are unrelated to the land reforms. Thereafter, 39th, 40th, 76th amendment misused by the Indian leaders by adding certain unnecessary laws into the ninth schedule, various attempt made by Indian judiciary and finally in I.R COELHO it got finalized and balanced the power of parliament. Finally in 44th amendment act parliament deleted the right to property from fundamental rights.


[1] Parliament debates. Vols.XII-XIII,pt.II.p.8856-7, 8906, 8950-5, 8963, 8981-3, 9775(9151)

[2] Article- 43(2) of Irish constitution

[3] Kameshwar singh v state of Bihar, AIR, 1951, Pat.91, SB.

[4] INDIA CONSTA .art. 31(b)

[5] AIR 1952 SC 252, 1952 1 SCR 1020

[6] 1965 AIR 1096, 1965 SCR (1) 636

[7] 1980 AIR 1789, 1981 SCR (1) 206

[8] I. C. Golakhnath & Ors vs. State Of Punjab & Anr:1967 AIR 1643, 1967 SCR (2) 762

[9] 981 AIR 636, 1981 SCR (2) 287

[10] I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC1: AIR 2007 SC 861

[11] 1978 AIR 1296, 1978 SCR (3) 293

[12] 1951 AIR 458, 1952 SCR 89

[13] 1965 AIR 845, 1965 SCR (1) 933

[14] supra, 9

[15] (1973) 4 SCC 225)

[16] 329(A) inserted in constitution (39th amendment) act 1975

[17] 1975 AIR 1590, 1975 SCC (2) 159

[18] Hon. Tassaduq Hussain Jillani, judicial review and democracy, American bar association,(jan,1, 2018)

[19] supra, 16

[20] supra, 13

[21] Article-11 of constitution of Japan

[22] Article-5 of constitution of united states

[23] supra, 13

[24] supra, 14

[25] Supra, 9

[26] Ibid.

[27] Supra, 16

[28] Inserted by constitutional 42nd amendment act, 1976

[29] Ibid.

[30] Supra, 7

[31] Ibid.

[32] (1981) 2 SCC 362, 1981 2 SCR 1

[33] Supra, 11

[34] Ibid.

Author Details: Ranjan Kumar Bhadani is a student at Bharati Vidyapeeth New Law College Pune


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